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Bombay High CourtIndian Cases

Chandrabai Pandurang Bidwekar vs Nanji Jaywant on 18 March 1970

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Bombay High Court
Chandrabai Pandurang Bidwekar vs Nanji Jaywant on 18 March, 1970
Equivalent citations: AIR1971BOM115, (1970)72BOMLR503, AIR 1971 BOMBAY 115, ILR (1971) BOM 1551, 1970 MAH LJ 748, 72 BOM LR 503
1. This is an appeal filed by the original plaintiff against the judgment of Mr. G.A. Desai, Judge, Bombay City Civil Court, dismissing her suit. The plaintiff’s case is that on 23rd April 1958 she purchased land admeasuring 1330 Sq. yards from one Bhogilal, who had, in his turn, purchased it sometime in the year 1947 from one Shevantilal Vora. There is no dispute in the present suit in regard to the plaintiff’s title to the suit land and the plaintiff’s document of title which is the deed of conveyance dated 23-4-58 has been tendered and marked Ex. B. The defendant, however, claims to be a tenant in occupation of a part admeasuring about 85 sq. yards of the said land on which he has a hut. The plaintiff filed the present suit in order to eject the defendant as a trespasser from the said portion of the land, and the learned Judge dismissed that suit holding that the plaintiff had failed to prove that the defendant was in unlawful occupation of the suit land. It is from that order of dismissal by the trial Court that the present appeal has been preferred.

2. Turning to the evidence, there can be no doubt that the plaintiff herself has no personal knowledge of the circumstances in which the defendant came into occupation of the portion of the land in question. The plaintiff has no doubt purported to depose in her evidence that the defendant has come into possession of the same after she had purchased the land from Bhogilal on 23rd April 1958, but that statement is obviously false because her own daughter Hirabai, who has also been examined as a witness in this case has deposed to the contrary. It may at this stage be mentioned that in para 1 of the written statement the defendant’s own case is that he has been a lawful tenant of the said land paying a ground rent of Rs. 4/-per month since seven years prior to the filing of the written statement on 27-1-1960. On the defendant’s own showing therefore he has been a tenant of the said land since about the year 1953, which is at the time when Bhogilal was the owner of the said land. Bhogilal who has also given evidence in this case has stated that there was no structure standing on his land at the time when he purchased it from Shevantilal Vora in 1947, and that some huts were constructed thereon about three years thereafter. The defendant has in his evidence stated that there was first a stable on the said land, and he purchased that stable and paid rent to Bhogilal and extended that stable, and sometime in the year 1954, he built a hut in place of the stable.

3. One Marathe, who was in the service of the Khot who owned the said land prior to the purchase thereof by Shevantilal Vora, has also been examined in this case and he has deposed to having received rent from the defendant. He has further stated that in about 1956 the Khot came to know that the defendant was not their tenant and he therefore stopped receiving rent from the defendant, since the land then belonged to Bhogilal and it was under those circumstances that rent for the months of February and March 1955 was received by the Khot from the defendant to which the receipt, Ex. 2, relates. The recovery of rent from the defendant by a person who was not then the owner of the land in question cannot give a right to the defendant as a tenant or amount to recognition of his alleged tenancy. When, in the circumstances aforesaid, on coming to know that the land in question was part of the land of which Bhogilal was the owner, the Khot paid back to one More, who was the Rent Collector of the said Bhogilal, the amount which the Khot had received as rent, in respect of that payment the receipt, Exh. D, was passed by the said More. The said receipt mentions the defendant’s name in the list of tenants, and the endorsement at the foot of it which is dated 24-1-1966 is signed by More and states that the rent of the said tenants had been received from the Malad Khot’s Office. That is the only piece of evidence in the proceedings on which the defendant can possibly rely in support of his claim of tenancy. I do not, however, attach much importance to the said receipt, Ex. D, in view of the fact that, subsequently, when money was received by More from the defendant on behalf of the said Bhogilal the receipts which were passed were ‘without prejudice’ for ‘compensation’ on the basis of ‘leave and licence’. Moreover, the defendant’s story in the course of his evidence that he was a tenant of the Khot is clearly false in so far as it is in conflict with his own written statement which, as pointed out above, shows that he became the tenant of the said land in 1953 at a time when the Khot no longer owned the same. There is, therefore, no evidence, oral or documentary, worth the name on which the defendant can rely to prove his case that he is the tenant of the said 85 square yards of land. It would be very difficult for plaintiff to prove the negative, viz., that the defendant has no title to the land, and once the plaintiff proves his title or his title is not disputed, if the person who is sought to be ejected wants to set up a title by way of tenancy under which he seeks to be in occupation of the suit land, it would be for him to establish that title. Unless he does so, the plaintiff would, by virtue of his title, be prima facie entitled to possession of the suit land. The learned trial Judge appears to have made the mistake of requiring the plaintiff to prove that the defendant was a trespasser as is apparent, both from the form of issue framed by him, as well as the finding recorded by him in the concluding paragraph of his judgment. In a very old case, being the case of Ram Monee Mohurir v. Aleemoodeen, (1873) 20 Suth WR 374 a Division Bench of the Calcutta High Court has taken the same view on facts which were quite similar to the facts of the present case. In that case, the plaintiff had sued for possession of the land, alleging that he had obtained a putnee lease of it, and that the first defendant (appellant) was in illegal possession of the same. The plaintiff’s title as patnidar was not disputed, but the defendant alleged that he had a right to continue to occupy the said land on payment of rent. Reversing the decree of the trial Court, it was held by the learned Judge that the plaintiff had shown that he was prima facie entitled to possession and, unless the defendant had a tenure which would entitle him to keep possession, the plaintiff ought to have had judgment to recover possession. It was further observed in the judgment in the said case that in the case of the owner of land seeking to recover possession of it, alleging that the person in possession had no right to continue in it, on showing that he had a title to the land, he would prima facie be entitled to recover possession, and unless the defendant proved that he had a right to continue in possession, he was a trespasser.

4. I agree with the view taken by the Division Bench of the Calcutta High Court in the said case. I hold that the plaintiff’s title being duly established, it was for the defendant in the present case to displace plaintiff’s prime right to possession and establish his right to continue in possession of the said land as a tenant, and that unless the defendant proved his title as a tenant, he must be held to be a trespasser. I have already discussed above the evidence in the case and, in my opinion, the same falls far short of establishing the defendant’s title as a tenant in respect of the said land. In that view of the matter, the plaintiff must succeed in the present suit. I therefore allow the appeal, set aside the order of dismissal passed by the trial Court and pass a decree in favour of the plaintiff in terms of prayers (a) and (b) of the plaint. Mr. Shah on behalf of the appellant-plaintiff does not press the relief of mesne profits in prayers (c) and (d) of the plaint, and I therefore, make no order with regard to the same. The respondent must pay the appellant’s costs in both the courts.

5. Appeal allowed.