Writ Petition No. 300 of 1991,Writ Petition No. 4043 of 1983,Writ Petition No. 301 of 1991,Writ Petition No. 4044 of 1983

7th April, 2000

Petitioner Counsel: Shri GULAM MUSTAFA
Respondent Counsel: Shri G.B. RAJALE

Cases Cited:
Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1987 Bombay Rent Cases, page 276) [Para 15]
K.S. Satyanarayana Vs. V.R. Narayana Rao , (1999 AIR SCW 2711) [Para 44]

JUDGMENT

JUDGMENT :- These two Writ Petitions are filed challenging the judgments delivered by the Joint Civil Judge (Junior Division), Ahmednagar, in Regular Civil Suit No. 665/76 and Regular Civil Suit No. 666/76, and further confirmed by the Extra Assistant Judge, Ahmednagar, in Regular Civil Appeal No. 250/81 and Regular Civil Appeal No. 249/81 respectively.

2. The said two suits were filed by the present petitioner against the respondents Daulat and Maruti who are brothers inter se. The petitioner contended that she was the landlady of House No. 497 and the two defendants from the two suits were tenants in the said property, each possessing different portion and each had agreed to pay monthly rent of Rs. 20/- . The plaintiff had claimed possession on the ground that the tenants had committed default in payment of rent and also on the ground that the defendants had caused damage to the property. They were causing nuisance to the neighbours and that the plaintiff required the suit property reasonably and bona fide for her personal occupation.

3. The two defendants filed separately two written statements in the two suits but took the same stand. They denied that the plaintiff was landlady of the suit property and that they were the tenants of the suit property on monthly rent of Rs. 20/-. They also denied that they had caused damage to the property, they were causing nuisance to the neighbours and that the plaintiff required the suit property reasonably and bona fide for her personal occupation.

4. The main contention of the defendants is that the father of the defendants was residing in the suit property i.e. House No. 497 and he died 12 years prior to the filing of the written statement. Even after his death, mother of the defendant and brother of the defendant continued to stay in the suit premises and they never paid rent to anybody. The father of the defendant and the defendants are staying in the suit premises as owner of the suit premises. The plaintiff never demanded rent from the defendants. They are residing in the suit premises for more than 30 years and, therefore, they have become owner of the suit premises by adverse possession.

5. The defendants further contended that the plaintiff or her predecessor in title never demanded rent from the defendants or anybody from the family of the defendants. The predecessors in title of the plaintiff had admitted that the defendants had become owners of the suit property by adverse possession. It is also contended that Hashmatbi w/o, Shaikh Rahim, the predecessor in title of the defendant, had allowed the defendants to stay in the suit premises and the defendants never accepted her title on the suit property. They were openly possessing the suit property, as owner, to the knowledge of Hashmatbi.

6. It is further contended by the defendants that the possession of the suit property by the defendants or their father was not with the permission of Hashmatbi or by way of favour from Hashmatbi. Mother of the defendants, Gitabai, had published a notice in daily newspaper dated 27-6-1970 and had declared that she had become owner of the suit property by adverse possession. The defendants, therefore, contended that the plaintiff was not entitled to claim possession of the suit property from the defendants.

7. As in both suits, the points involved were the same, the learned Civil Judge, with the consent of the parties, recorded evidence of the parties in Regular Civil Suit No. 665/76 and then delivered the common judgment.

8. The learned Civil Judge held that the plaintiff failed to prove that the defendants were tenants in the suit premises on monthly rent of Rs. 20/- and she also failed to prove that the defendants neglected to pay rent for more than six months. He also held that the plaintiff failed to prove that the defendants were causing nuisance or annoyance to the neighbours and the defendants caused damage to the suit property or made permanent construction on the suit premises without consent of the plaintiff. He also held that the plaintiff did not require the suit property reasonably and bona fide for her personal occupation, and therefore, issue regarding hardship was answered as it did not survive. However, he also held that the plaintiff had proved that the defendants have disclaimed her title and ownership over the suit premises.

9. The learned Extra Assistant Judge decided Regular Civil Appeal No. 249/1981 and Regular Civil Appeal No. 250/1981 by common judgment. In Regular Civil Appeal No. 250/1981, the plaintiff - appellant had filed an application seeking leave to file on record, certified true copy of the written statement filed by defendant, Daulat, in Regular Civil Suit No. 302/63 filed by Shri Dugam, the previous owner of the suit property, and also judgment from said suit delivered by the Civil Judge (Junior Division), Ahmednagar, on 25th April 1964. However, this application was rejected and production of the documents was not allowed.

10. The learned Extra Assistant Judge, Ahmednagar, held that the plaintiff - appellant failed to establish that she was the landlady and the respondents were the tenants in the suit premises and, therefore, dismissed both the appeals.

11. Thus, it will be seen that both the Courts below have given concurrent findings with respect to relationship between the plaintiff and the defendants, that of landlady and tenants, and it is held that the plaintiff has failed to prove that she was the landlady and the two defendants were the tenants in the premises. The learned Civil Judge has observed that the defendants did not pay rent to the plaintiff or to any of the previous owners of the property and the plaintiff failed to prove that the defendants were ever tenants in the suit premises and he also held that the defendants have proved that they have acquired title over the suit property by adverse possession.

12. The learned Extra Assistant Judge has observed that the plaintiff has not proved that there was an agreement of tenancy between the landlady and tenants agreeing the rent at Rs. 20/- per month. The plaintiff also failed to show at what point of time the defendants occupied the premises as tenants and whether she had inducted the defendants as tenants or her predecessor in title had inducted the defendants as tenants. The learned Extra Assistant Judge also came to the conclusion that the pleadings in this respect were vague and the evidence was not satisfactory.

13. The learned Extra Assistant Judge has also observed that the plaintiff's witness, Shridhar Anna Dugam, from whom the plaintiff purchased the suit property, has admitted in his cross-examination that he had filed suit against the defendants for possession of the suit premises, but in the said suit, he could not establish his title as landlord and it is, therefore, held by the learned Judge that the plaintiff cannot claim any better rights than what Shridhar had. The decision between Shridhar and the present defendant operates as res judicata because the plaintiff is claiming through Shridhar and, therefore, she is not entitled to reagitate that she is the landlady of the property, Shridhar had never recovered any rent from the defendants.

14. The learned Extra Assistant Judge has also held that the claim of Shridhar that he had obtained title over the suit property under a registered sale deed from Bibibai is also falsified because Bibibai is examined as defendant's witness and she has stated that she never sold the property to anyone and she specifically denied that she had sold the property to Shridhar. He has observed that Bibibai stated that the defendants were put in possession of the property by her deceased father and no rent was recovered from any of the defendants as they were friendly with her father. As Bibibai is not claiming that the defendants were tenants in the suit property, the learned Extra Assistant Judge has come to the conclusion that the plaintiff has failed to prove her relationship with defendants as that of landlady and tenants. As this issue was answered in the negative by the learned extra Assistant Judge, he dismissed both the appeals.

15. The learned Counsel for the petitioner has argued that there is gross miscarriage of justice because both the lower Courts have failed to appreciate properly the evidence on record. Not only that, but certain part of the evidence is altogether not taken into consideration by both the Courts below. It is also contended that the position of law with respect to acquisition of title by adverse possession is not properly considered by the lower Courts and this has resulted in the gross injustice. This is not mere case of some mistake here and there in appreciating the evidence on record. When the decisions of the lower Courts, though are concurrent, are indicating that certain part of the evidence is not at all taken into consideration, then in Writ Petition, under Article 227 of the Constitution of India, the High Court can interfere. In this respect, the learned Counsel for the petitioner has relied upon the ruling of the Apex Court, in the matter, Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram (1987 Bombay Rent Cases, page 276). Their Lordships have observed in para 21, as follow :-

" It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 & 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not passed on any material evidence or it resulted in manifest of justice, See Trimbak Gangadhar Telang and another Vs. Ram Chandra Ganesh Bhide & others (1977(2) S.C.C. 437). Except to the limited extent indicated above, the High Court has no jurisdiction."

So, in the light of these observations, the present matter is to be considered.

16. To appreciate this contention, it would be necessary to consider what were the pleadings of the parties, what was the evidence brought on record by the parties and whether the Courts below have lost sight of any important evidence which, in ordinary course, ought to have taken into consideration and whether the Courts below have misdirected with respect to position of law regarding title by adverse possession and res judicata. If such situation is prevailing, then definitely in a Writ Petition, under Article 227 of the Constitution of India, the High Court can interfere.

17. The plaintiff has come before the Court with the contention that she purchased the suit house under a registered sale deed and she has become owner of the suit house. In support of this contention, the plaintiff has examined herself and she has also examined her predecessors in title, Shridhar Dugam and Laddharam Khatavmal Karmyani. It is her case that the suit property originally belonged to Hashmatbi. Bibibai being the daughter of Hashmatbi, inherited the property from Hashmatbi. Bibibai then sold the property to Shridhar Dugam. The plaintiff has further stated in her deposition that she purchased western half portion of the suit property from Shridhar Dugam which is in her possession and eastern half portion was purchased by Laddharam where two defendants were residing. She afterwards purchased the eastern half portion from Laddharam. The relevant sale deeds are produced on record.

18. The defendants have not denied that the suit property was originally belonging to Hashmatbi. In fact, they have not challenged sale transaction which had taken place, as stated by the plaintiff, in her deposition. The deposition of defendant Daulat indicates that he was well aware that after Hashmatbi, her daughter Bibibai become owner of the suit property. The only stand taken by the defendants is that the owners never demanded rent from them and they never paid rent to the owners. So far as ownership of the property, the defendants have contended that they have acquired title over the suit property by way of adverse possession, first against Hashmatbi and then again against Bibibai.

19. The learned Civil Judge has held that the defendants have proved that they have become owners of the suit property by way of adverse possession. This aspect of ownership by adverse possession is not specifically considered by the learned Extra Assistant Judge in his judgment. But as the stand is taken by the defendants that they have become owners by way of adverse possession, it is necessary first to ascertain whether there is any substance in this contention.

20. Defendant Daulat, in his deposition in the trial Court, has stated that since 22 to 25 years prior to January 1981, when his deposition was recorded, he, his brother and his parents are residing jointly in the suit house. He has stated that Hashmatbi allowed them to stay there. She had allowed them to stay there permanently. He has further stated that they resided there as per the desire of Hashmatbi and now they are residing there as per their own desire. He has further stated that out of love, Hashmatbi had allowed them to stay there since prior to 30 - 35 years. And then he contends that they never admitted Hashmatbi's ownership over the suit property and they told Hashmatbi that the house was belonging to them. Hashmatbi never demanded rent from them and they never paid rent to Hashmatbi.

21. If all these contentions of the defendants are taken into consideration, it will be very clear that the defendants and their parents started to reside in the suit premises as per permission given by Hashmatbi. It was for all the purposes permissive possession. It may be that Hashmatbi had not demanded rent from the defendant or the defendant may not have paid any rent to Hashmatbi. But the fact remains that they entered into possession because of the permission granted by Hashmatbi. It is well settled law that if once possession is permissive possession, then it cannot be converted into adverse possession unless the person in possession first surrenders the possession to the owner of the property and then reenters into the property to claim hostile title.

22. The evidence does not show that the defendants or their parents ever vacated the suit premises during the lifetime of Hashmatbi or after the death of Hashmatbi and then reentered into the premises to claim adverse possession. There is only vague statement that the defendants had denied title of Hashmatbi. But in what manner title of Hashmatbi was denied, when was it denied and how Hashmatbi conceded to that position ? There is no evidence on record to this effect. So, the contention of the defendant, that they denied the title of Hashmatbi and Hashmatbi conceded to that position, is without any basis.

23. The defendants have contended that they had denied title of Hashmatbi and Bibibai and both of them had conceded to that position. However, one important circumstance has to be noted that Regular Civil Suit No. 302/63 was filed by Dugam against the defendants for possession of the property and the defendants have not pleaded in the present suit that, in the written statement filed in the said suit, they had claimed property by adverse possession as against the title of Hashmatbi and Bibibai and both the ladies had conceded to that position. If such a stand was not taken, at the first available opportunity for the defendants, no purpose will now be served by saying that they had denied title of Hashmatbi and Bibibai by setting up title by adverse possession. The very circumstance that the defendants have not brought on record the written statement from Regular Civil Suit No. 302/63 indicates that no such stand was taken by them in the previous suit. So, in no way, it can be said that the defendants were holding the property by claiming title by adverse possession as against Hashmatbi and Bibibai.

24. It is further contended by the defendants that a notice was published in daily newspaper denying title of Bibibai. The defendants have examined the editor of daily newspaper, namely, "Dainik Samachar" to show that such a notice was published on 27-6-1970. However, copy of the notice is not on record. The exact wording of the notice is, therefore, not known. Furthermore, there is nothing on record to indicate that this notice published in the newspaper was ever read by Bibibai or it was brought to her notice for her to know that the defendants were denying the title of Bibibai.

25. Here, it is also to be noted that the so called notice was published in the newspaper by the defendants long after the property was sold by Bibibai to Shri Dugam. So, the denial of the title of Bibibai after she had sold the property is meaningless. There is nothing on record to show that this notice was made known to the subsequent purchasers by the defendants. Here, it also has to be noted that after the sale of property by Bibibai, Dugam had filed suit against the defendants for possession of the suit property and, thus, the defendants were very well aware that Bibibai had sold the property to Dugam. Even then, the so called notice is issued denying title of Bibibai and that shows dishonesty on the part of the defendants.

26. The defendants have examined Bibibai as witness. But there is also nothing in her deposition indicating that she was well aware of the notice published in the newspaper and she had accepted the position. On the contrary, her deposition indicates that she is yet claiming title over the suit property by denying that she had executed any sale deed in favour of Shridhar Dugam. So, this evidence also would not be sufficient to hold that the defendants have proved that they have acquired title by way of adverse possession.

27. The plaintiff filed suit in the year 1981. While as per the contention of the defendants, the notice was published on 27-6-1970. That means, the suit is filed within 12 years after publication of so called notice denying title of Bibibai. So, if the starting point for adverse possession is presumed to be 27-6-1970, even from that date the defendants have not perfected their title of adverse possession because the period of 12 years is not completed by the time the suit is filed. So, this evidence of defendants is of no use to contend that they have acquired title by way of adverse possession. So, the plea of title of adverse possession by the defendants is without any basis.

28. The learned Extra Assistant Judge has also raised doubt about the clear title of plaintiff over the suit property on the basis of deposition of Bibibai. She has stated that she did not sell out the suit property to anybody. She denied that she had sold the suit property to Shridhar Dugam and she had even denied that she had gone to the office of Sub-Registrar.

29. However, this oral evidence of Bidibai has to be considered as against the oral evidence of Shridhar Dugam and the sale deed produced on record by him which is at Exhibit 38. Shridhar Dugam has stated that he purchased the suit property in the year 1960-61 from Bibibai and he has proved the sale deed executed by Bibibai. So, mere oral denial of Bibibai is not at all sufficient to hold that she had not sold the property to Shridhar Dugam. It also appears that her husband Sayyed Mohammad was looking after the property and the sale deed indicates that he was attesting witness on the sale deed. The endorsement on Exhibit 38 made by the Sub-Registrar, Ahmednagar, which has presumptive value, also indicates that Bibibai herself had appeared before him for execution of the sale deed. So, in the light of this documentary evidence, the oral evidence of Bibibai denying sale in favour of Shridhar Dugam is of no consequence.

30. Thus, the evidence indicates that Bibibai sold the property to Shridhar Dugam. Shridhar Dugam thereafter sold western half portion to the plaintiff and eastern half portion to Laddharam and later on plaintiff purchased eastern half portion from Laddharam.

31. In this respect, the other important evidence must be taken into consideration at this stage. There is Exhibit 68 on record which is the certified true copy of land register of Ahmednagar Cantonment regarding the suit house and in this document, Hashmatbi, thereafter Bibibai are shown owners of the suit property and lastly the plaintiff is shown as the owner of the suit property. The defendants have no such evidence to indicate that they were ever shown as owners of the suit property in the cantonment record.

32. The plaintiff has stated that she had paid the property tax to the Cantonment Board and in support of this contention, she has examined the Clerk from the office of Cantonment Board and through him, two certificates, Exhibits 54 and 55, are produced which indicate that the plaintiff had paid the cantonment taxes for the suit property. The defendants have not produced any document to indicate that they ever paid property taxes to the Cantonment Board.

33. So, in such circumstances, title of plaintiff over the suit property cannot be doubted. The defendants have no evidence to indicate that they have acquired title over the suit property either by adverse possession or by any other mode. As per their own case, they started to reside in the suit property because of the permission granted by Hashmatbi. So, they cannot claim title by adverse possession. The various registered sale deeds produced on record by the plaintiff indicate that she had rightfully acquired title over the suit property.

34. The learned Civil Judge as well as the learned Extra Assistant Judge have placed more reliance on the contention of the defendants that the owner of the suit property never demanded rent from them and they never paid rent to them. There are no rent receipts to show that they ever paid rent to anybody. The plaintiff had admitted in her deposition that she never received rent from the defendants and, in such circumstances, the defendants cannot be called tenants and plaintiff cannot be called landlady.

35. It is true that right from beginning the defendants have taken stand that they never paid rent either to Hashmatbi or to Bibibai or to Shridhar Dugam. There is one more circumstance on which the learned Extra Assistant Judge has placed reliance to hold that the plaintiff has failed to prove that there was relationship of landlady and tenant between her and the defendants. Shridhar Dugam had filed suit for possession against the defendants on the ground that the defendants were the tenants and they had failed to pay the rent. That is Regular Civil Suit No. 302/63. The Certified copy of decree from that suit is at Exhibit 65, and it shows that the suit was dismissed. The learned Extra Assistant Judge has observed :-

"Firstly, it shows that he had filed suit against both the defendants and he failed in the said suits because he could not establish his title as landlord. The plaintiff is his successor. She cannot claim any better rights than that of Shridhar Dugam. Moreover, the decision between Shridhar Anna and the present defendants operates as res judicata as plaintiff claims through Shridhar Anna. The plaintiff is, therefore, not entitled to reagitate again that she is the landlady of the property."

36. It is admitted fact that Regular Civil Suit No. 302/3 was filed by Shridhar Dugam and it is dismissed. However, there was no specific issue either in the suit or in the appeal as to whether the present suits are barred by the principles of res judicata because of the decision in Regular Civil Suit No. 302/63. The plaintiff had tried to bring on record, the written statement from Regular Civil Suit No. 302/63. But the learned Extra Assistant Judge has refused the production of the written statement in the appeal, as per the first point decided by the learned Extra Assistant Judge in his judgment.

37. So, merely on the basis of the decree or some admission given by Shridhar Dugam, in his deposition, it cannot be said that as the plaintiff is claiming through Shridhar Dugam, her claim that she is the landlady and the defendants are the tenants is barred by the principles of res judicata. The pleadings in the previous suit and the issues framed in the previous suit and the findings recorded in the specific issues ought to be there after framing issue as to whether the later suit is barred by the principles of res judicata because of the decision in previous suit and then only the decision on this point can be given. However, merely on the basis of admission given by the witness Shridhar, it cannot be said that the present suits by the plaintiff are barred by res judicata.

38. Here also, the admission given by Shridhar Dugam is not that the suit was dismissed because he failed to prove that he was landlord of the tenants. The admission in the Cross-examination is in these words : ""¨É±ÉÉ ¨ÉɱÉEÒSÉ Ê¨É³É±ÉÒ xÉÉ½Ò ¨½hÉÚxÉ ºÉn® nÉ'ÉÉ ¡ä]ɳ±ÉÉ MÉä±ÉÉ". That means, according to Shridhar Dugam, the suit was dismissed because he failed to prove ownership over the property and not because he failed to prove that there was relationship of landlord and tenant.

39. It is already pointed out that the plaintiff has proved her title over the suit property and the defendants have failed to prove that they have acquired title by adverse possession. So, this admission given by Shridhar Dugam is of no use either to draw the conclusion that the plaintiff has not acquired ownership of the suit property or that the plaintiff's claim, that she is the landlady and the defendants are tenants, are barred by the principles of res judicata. The finding so recorded by the learned Extra Assistant Judge is without there being a specific issue and required documentary evidence to draw that conclusion.

40. There is another circumstance which is lost sight of by the learned Extra Assistant Judge. Shridhar Dugam had sold eastern half portion of the suit property, where the two defendants are residing, to Laddharam. The plaintiff has examined Laddharam as her witness and he has stated that he purchased the suit house from Shridhar Dugam and then he got executed rent note from the defendants. The rent note is at Exhibit 42. The witness has stated that the rent note was written by the bond writer, Mulay, as per his instructions and both the defendants signed on it in his presence. He has even stated that the defendants paid him rent for two months after the execution of the rent note. He has stated that he sold the suit house to the plaintiff in 1969 and handed over the rent note to the husband of the plaintiff.

41. As against this evidence of the plaintiff, the defendants are relying only on the statement of Daulat in his deposition wherein he denied the execution of the rent note Exhibit 42. He has stated that the rent note does not bear his signature. However, in the cross-examination, he was shown his signature on the Vakalatnama and he has denied his signature on the Vakalatnama also. That shows the nature of the witness. He is not ready to state the truth or is ready to state anything to achieve his purpose. This attitude of defendant Daulat ought to have been taken into consideration both by the learned Civil Judge and the learned Extra Assistant Judge.

42. It is worth noting that the other defendant Maruti has not entered into witness box to deny his signature on Exhibit 42. Merely because defendant Daulat has denied his signature on Exhibit 42, the Court cannot come to the conclusion that Exhibit 42 does not bear signature of Daulat and Maruti especially when Laddharam has stated that Daulat and Maruti signed that document in his presence. The Courts below could have compared the signature of Daulat with his admitted signature on record. Daulat had denied his signature on Vakalatnama. But that denial is inconsequential. His Advocate continued to act on the basis of that Vakalatnama in the suit and Daulat did not take objection for his Advocate to continue to act on his behalf in the suit. So, signature of Daulat on that Vakalatnama has to be accepted as his signature.

43. Not only that defendant Daulat had failed to file written statement in the suit and thereafter he appeared and requested the Court that the order treating him ex parte be set aside and his written statement be admitted on record. In support of that, he had filed affidavit which is at Exhibit 8 and there is signature of Daulat on that affidavit and this signature can be considered as admitted signature on record.

44. The learned Civil Judge as well as the learned Extra Assistant Judge could have, by resorting to the provisions of Section 73 of the Evidence Act, compared the signature of Daulat on Vakalatnama Exhibit 6 and on affidavit Exhibit 8 with that on rent note Exhibit 42. The learned Counsel for the petitioner has relied upon the ruling of the Supreme Court, in the matter , K.S. Satyanarayana Vs. V.R. Narayana Rao (1999 AIR SCW 2711). In the said matter also, defendant no.1 denied his signature on the written statement and Vakalatnama in favour of his Counsel, and the learned Counsel for the petitioner has pointed out that the Apex Court has observed in para 7 of the judgment, as follows :-

" Trial Court should have immediately probed into the matter. It should have recorded statement of the counsel for the 1st defendant to find out if Vakalatnama in his favour and written statement were not signed by the 1st defendant whom he represented. It was apparent that the 1st defendant was trying to get out of the situation when confronted with his signatures on the Vakalatnama and the written statement and his having earlier denied his signatures on Exh. P-1 and Exh.P-2 in order to defeat the claim of the plaintiff. Falsehood of the claim of the 1st defendant was writ large on the face of it. Trial Court could have also compared the signatures of the 1st defendant as provided in Section 73 of the Indian Evidence Act."

45. In this case, defendant Daulat has denied his signature on the Vakalatnama. But that is falsely denied, as pointed out above. Furthermore, his signature on the affidavit, Exhibit 8, has to be considered as admitted signature and it can be used for the purpose of comparison as per the provisions of Section 73 of Indian Evidence Act.

46. I have myself compared these two signatures with the signature on the rent note Exhibit 42 and, in my opinion, all three signatures are that of one and the same person, that is, of defendant Daulat. If instead of relying on bare denial of Daulat, that Exhibit 42 does not bear his signature, the Courts below would have compared that signature with the admitted signature on record. They would have come to know that Daulat has falsely denied his signature on Exhibit 42. This valuable piece of evidence is not at all taken into consideration properly by the learned Civil Judge as well as the learned Extra Assistant Judge.

47. Thus, the evidence of Laddharam clearly indicates that Daulat and Maruti both executed rent note in his favour and agreed to pay rent at Rs. 20/- per month to him. He has also stated that he received rent for two months thereafter. It may be that he is not having counterfoil of rent receipts regarding rent paid by Daulat and Maruti. He has sold the property and he has no existing interest in the property, therefore, his statement, that he had received rent of two months from Daulat and Maruti, cannot be brushed aside. It must be given its due weight especially when the stand taken by Daulat and Maruti is without any basis.

48. Exhibit 42 and evidence of Laddharam clearly indicates that there was relationship of landlord and tenant between Laddharam and defendants. Laddharam had acquired property from Shridhar and thereafter this rent note has come into existence. So, whatever may be the effect, the decision in Regular Civil Suit No. 302/63 has no bearing on the further course of transaction. After the decision in that suit, the defendants executed the rent note and admitted that they were the tenants in the suit property and they agreed to pay rent at the rate of Rs. 20/- per month.

49. So, it cannot be said that the plaintiff who has acquired title through Laddharam under the sale deed cannot be called landlady vis-a-vis two defendants. Her relationship that of landlady cannot be denied on the basis of decision in Regular Civil Suit No. 302/63. The defendants by their own act of executing the rent note had set at rest that controversy. So, by bringing on record this evidence through the mouth of Laddharam and the document Exhibit 42, the plaintiff has proved that both the defendants were tenants in respective suit premises on monthly rent of Rs.20/-.

50. The plaintiff may not be able to state as to when defendants came into possession of the suit property or the defendants had ever paid rent to Hashmatbi or Bibibai or Shridhar Dugam. Those are all the things which had happened before she became owner of the suit property. She cannot have first hand information about the same. She had examined two of her predecessors in title, namely, Shridhar Dugam and Laddharam, and both of them have claimed that both the defendants were tenants in the suit property. Both of them failed to recover rent or possession from the defendants. The tenants did not pay any rent to either of them. But that does not mean that there was no relationship of landlord and tenant. Especially when both the tenants had executed the rent note Exhibit 42 in favour of Laddharam, the mere non-payment of rent would not be sufficient to say that the plaintiff is not landlady and defendants are not tenants. It is, thus, very clear that the plaintiff is entitled to recover rent from the defendants and, therefore, she is the landlady of the suit premises. The defendants are liable to pay rent to the plaintiff and, therefore, they are tenants of the suit property.

51. The stand taken by the defendants in the written statement as well as in the deposition of Daulat clearly indicates that they were never ready and willing to pay the rent. When the tenant claims title over the property, then it is apparent that he is not ready and willing to pay the rent. If the plaintiff proves that he is the landlord, owner of the suit property, and the defendant is tenant in the suit property, then by the stand taken by the defendant, the Court can come to the conclusion that the defendant is not ready and willing to pay rent and, therefore, he is defaulter. The plaintiff, in such circumstances, is entitled to claim possession of the suit property.

52. Thus, it is found that when the two defendants came into possession of the property because of the permission given by Hashmatbi and they had not surrendered the possession to Hashmatbi and Bibibai and had not reentered into the property, they cannot claim title by adverse possession. They have utterly failed to prove that they have acquired title by adverse possession. So far as relationship between plaintiff and defendants, that of landlord and tenant, is also well established by the plaintiff by producing on record Exhibit 42, the rent note. The denial of the execution of the rent note by the defendants is meaningless. The evidence of the plaintiff, that means, deposition of Laddharam and rent note Exhibit 42, was not at all considered by the learned Extra Assistant Judge, and the learned Civil Judge simply relied on the denial of execution of rent note by the defendant without caring to take into consideration all the circumstances and the provisions of Section 73 of the Evidence Act.

53. So, both the Courts below have failed to take into consideration evidence on record and that has caused gross injustice to the plaintiff. Neither mere possession was permissive possession nor mere denial of the execution of rent note will be sufficient to hold that there was no relationship of landlord and tenant between the plaintiff and defendants. So, the plaintiff has succeeded in proving that the defendants have failed to pay the rent. They were not ready and willing to pay the rent and she is, therefore, entitled to get possession of the suit premises.

54. In the result, Writ Petition No. 300/1991 (Aurangabad) (i.e. Writ Petition No. 4043/1983 (Bombay) and Writ Petition No. 301/1991 (Aurangabad) (i.e. Writ Petition No. 4044/1983 (Bombay), are allowed. The judgment and order, dated 31-1-1981, passed by the learned Joint Civil Judge (Junior Division), Ahmednagar, in Regular Civil Suit No. 665/1976 and Regular Civil Suit No. 666/1976, so also, judgment and order, dated 10-2-1983, passed by the learned Extra Assistant Judge, Ahmednagar, in Regular Civil Appeal No. 250/1981 and Regular Civil Appeal No. 249/1981, respectively, are quashed and set aside. The respective defendants from Regular Civil Suit No. 665/1976 and Regular Civil Suit No. 666/1976 are directed to hand over vacant possession of the suit premises to the plaintiff. The plaintiff is also entitled to arrears of rent, as claimed in the plaints, and she is also entitled to future mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908. The respondents - original defendants are also directed to pay costs to the petitioner - original plaintiff, throughout.

Order accordingly.