Second Appeal No.430 of 1991

5th April, 2003

Petitioner Counsel: Mrs. NAIK
Respondent Counsel: Shri. ANJAN DE

Cases Cited:
Anar Devi (Smt.) Vs. Nathu Ram, (1994)4 SCC 250 [Para 5]
M/s. Quality Cut Pieces Vs. M/s. M. Laxmi and Co., AIR 1986 Bombay 359 [Para 5]
M/s. Nagji Vallabhaji & Co. Vs. M/s. Meghji Vijpar & Co., AIR 1987 Bombay 142 [Para 5]
Achyut Amrit Rasal Vs. Shrikrishna Vyankatesh Chincholkar, 1988 Mh.L.J. 250 [Para 5]

JUDGMENT

JUDGMENT :- The appellant is the original plaintiff and the respondent is the original defendant. This second appeal has been filed by the original plaintiff challenging the Judgment and Order passed by the trial court dismissing his suit, which order has been confirmed by the District Court by dismissing the first appeal filed by him. The second appeal was admitted on 12th September, 1991 and the following order was passed :

"Heard Shri. Manohar. Admit. The substantial question of law which arises for decision is point no.1 in the memo of appeal."

2. Brief facts are as under :

The appellant-original plaintiff had filed a suit for possession of the suit property which consisted of Room No.518. It is the case of the plaintiff in the plaint that Lahanubai Paikaji Wairagade had taken the said plot from Chandrapur Municipal Council as a tenant and she had constructed a tin shed on the said plot and she continued to be in possession till her death in the year 1952-53. Her son Shrawan pre-deceased her and the plaintiff Kashinath was the son of Lahanubai's daughter, who was living all along with Lahanubai till her death and continued to live in the suit premises. It is the case of the plaintiff that after the death of Lahanubai he being the only heir of Lahanubai became owner of the suit property. His name was mutated as a tenant in Municipal Council record in respect of the suit property in the year 1956. It is the case of the plaintiff that the defendant was in need of some premises and, therefore, he gave the suit property in his possession for a temporary period as his licensee in the year 1970. It is the case of the plaintiff that he demanded the possession several times, however, defendant did not return back the possession and, therefore, by notice dated 22-1-1979, he demanded possession from the defendant and since it was not given, he filed the suit for vacant possession of the suit property.

3. The respondent-original defendant had filed his written statement and challenged the plaintiff's right, title or interest over the suit property and he claimed to be the owner of the suit property, firstly by virtue of purchase of suit property for a consideration of Rs.10,000/- and alternatively, by virtue of having perfected his title by adverse possession. It was his case that he was in possession of the suit property as a owner for more than 13 years openly, continuously and without any interruption and, therefore, he had perfected his title. He further claimed that the original lease in favour of the plaintiff's predecessor was void and illegal and, therefore, the plaintiff could not acquire any right, title or interest in the suit property. His alternate plea was that since the lease was forbidden under the Municipal Act, the plaintiff's predecessor at the most could be treated as a licensee and that since the property was transferred against the provision of law, the plaintiff could not establish his claim.

4. The appellant-original plaintiff filed some documents on record which he claims to be 'public documents' at the time of argument. Neither the plaintiff nor the defendant entered the witness box and submissions were made by both the parties on the basis of their pleadings. It is an admitted position that these documents which are brought on record have not been proved in the manner provided by the provisions of Evidence Act though it is submitted by the learned Counsel appearing on behalf of the plaintiff that since the documents were either the original or certified copy of a public document, no further proof was required. The Trial Court dismissed the suit of the plaintiff and the Appellate Court also dismissed the appeal filed by the plaintiff. The plaintiff has challenged both the orders passed by both the Lower Courts in the second appeal.

5. Mrs. Naik, learned Counsel appearing on behalf of the appellant-original plaintiff, submitted that both the Lower Courts did not take into consideration the provisions of Section 116 of the Indian Evidence Act which laid down the principle of equitable estoppel. She submitted that the defendant had admitted in para 8 of the Written statement that the possession of the suit premises was handed over to him by the plaintiff. She submitted that in view of this admission it was not necessary for the plaintiff to enter the witness box and that the documentary evidence proved that he was the owner of the premises and even if the said fact was not established that he was the owner, by virtue of the provisions of Section 116 of the Indian Evidence Act, the defendant was not entitled to raise a plea regarding the illegality of the plaintiffs title and as such both the Courts ought to have decreed the suit of the plaintiff by directing the defendant to return the possession of the suit premises in favour of the plaintiff. In support of the said submissions, she relied on Judgment of the Apex Court in the case of Anar Devi (Smt.) Vs. Nathu Ram, (1994)4 Supreme Court Cases 250, and two judgments of this Court in the case of M/s. Quality Cut Pieces and etc. Vs. M/s. M. Laxmi and Co., AIR 1986 Bombay 359 and M/s. Nagji Vallabhaji & Co. Vs. M/s. Meghji Vijpar & Co. and others, AIR 1987 Bombay 142 and also on the judgment of this Court in the case of Achyut Amrit Rasal Vs. Shrikrishna Vyankatesh Chincholkar and others, 1988 Mh.L.J. 250.

6. Shri. Anjan De, learned Counsel appearing on behalf of the respondent-original defendant submitted that there was a specific denial in the written statement that the plaintiff had put the defendant in possession. He stated that so far as the averments in para 8 of the written statement are concerned, firstly they should not be read in isolation but had to be read with other averments in the written statement wherein there was a specific denial that the plaintiff had put the defendant in possession, and secondly he submitted that so far as the para 8 of the written statement is concerned, the premises mentioned in para 8 were not in respect of the suit premises but appeared to be some other premises, because what was mentioned in para 8 was regarding the premises at Goal Bazar, whereas in the plaint in para 1 the suit premises were described as being premises in Bazar Ward and there was no description of Goal Bazar in the plaint. He submitted that, therefore, even assuming without admitting that the statement in para 8 was an admission, the said admission could not be taken in regard to the suit premises, as both the premises were obviously different. He further submitted that in para 8-A a specific plea of adverse possession was raised, where it was stated that the defendant was in possession for more than 13 years. He further submitted that the documents which were filed alongwith the plaint were not proved by the plaintiff and even if public documents are filed alongwith the plaint they had to be proved by examining a witness and in this case he submitted that the plaintiff had not adduced any oral evidence. He submitted that this was not a case which would fall under Order 18, Rules 1 and 3 of the Code of Civil Procedure. He submitted that the defendant had not admitted anything and, therefore, it was the duty of the plaintiff to prove his own case. He further submitted that this was not a case where the plaintiff had given admission in respect of any particular issue and, therefore, there was no question of preservation of right by plaintiff to lead evidence after the defendant had adduced evidence, as provided in Order 18, Rule 3 of the Code of Civil Procedure.

7. I have perused the Judgments and Orders of both the Lower Courts. This is a very peculiar case where both the parties have not led oral evidence. The case which is made out by the plaintiff in the second appeal is that, in view of the provisions of Section 116 of the Indian Evidence Act, the plaintiff was entitled to obtain a decree for possession, whereas the case of the defendant is, no such admission has been given by the defendant in his written statement and, therefore, the case, at the highest, could be decided by examining the pleadings of both the parties, and if it can be proved that the averments made by the plaintiff in the plaint were admitted by the defendant, then only to that extent further proof was not required for on behalf of the plaintiff and he would be entitled to get a decree to that extent.

8. Order 18 of the C.P.C. lays down the procedure in respect of the hearing of the suit and examination of witnesses. Similarly, Section 116 of the Indian Evidence Act incorporates the principle of equitable estoppel. The principle of equitable estoppel is that the person who has obtained possession from another is estopped from questioning the title of the former and once it is established that the former has given possession to the latter, the latter is bound to give back the possession of the premises which he has taken from the former. This would cover a case where a tenant inducts a licensee in the premises. If the tenant wants the possession back from the licensee, then in such a case licensee would not be in a position to question the title of a tenant but he would be duty bound to return the possession.

9. In order to consider the submissions of the rival parties, it would be relevant to consider the concerned Section 116 of the Indian Evidence Act. Section 116 of the Indian Evidence Act is reproduced hereinbelow :

"Sec.116 - Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."

From the perusal of Section 116 of the Indian Evidence Act, what has to be first established is this the person claiming possession has to prove that he had put the other party in possession. Unless this fact is proved, the provision of Section 116 of the Indian Evidence Act would not come into operation. Section 116 of the Indian Evidence Act contemplates two situations, one is in respect of a tenant and second is in respect of a licensee. The first part of the section deals with estoppel by the tenant in questioning the title of the landlord in respect of the immovable property, and the second part of the section deals with the estoppel by a licensee in questioning the title of such tenant at the time when such license was given.

10. In the instant case, the plaintiff is claiming that the defendant was a licensee who was put in possession by him and, therefore, it is the case of the plaintiff that the licensee was estopped from questioning his title and that the finding of the Lower Appellate Court that the initial tenancy of the plaintiff being barred by the provisions of Section 92 of the Maharashtra Municipalities Act was, therefore, contrary to the provision of Section 116 of the Indian Evidence Act. Thus, in order to succeed, the plaintiff has to prove that he had put the defendant in possession of the suit premises.

11. Section 102 of the Indian Evidence Act lays down the provision regarding the burden of proof in a suit for proceeding where no evidence has been given by either side. Section 102 of the Indian Evidence Act reads as follows :

"Sec.102 : On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

12. Order 18 of the Code of Civil Procedure lays down the procedure in respect of the hearing of the suit and examination of witnesses. Order 18, Rules 1 and 3 are reproduced hereinbelow :

"Order 18 : Hearing of the suit and examination of witnesses :

(1) Right to begin :- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

(2) ............

(3) Evidence where several issues : Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case."

13. In the present case, neither the plaintiff nor the defendant had adduced any oral evidence. In order to see whether the provisions of Order 18, Rule 1 or Rule 3 of the C.P.C. would be applicable in the present case, first of all it will be necessary to see the averments which are made by both the parties. The plaintiff in the first instance will have to prove that the defendant has admitted some of the averments made in the plaint and only then defendant will have to give his evidence first as per the procedure laid down in Order 18, Rule 1 of the Code of Civil Procedure.

14. The plaintiff in his plaint para 1 has given the description of the suit premises. He has given the measurements of the premises, as admeasuring 10' x 10' ft. situated at Bazar Ward, Dhanya Ali, village Chandrapur. The plaintiff has also given the boundaries in para 1. The plaintiff has averred that he had given the possession of the suit premises to the defendant in view of their cordial relations and, thereafter, one year prior to the suit he had demanded the possession back from the defendant and when possession was not given he had given a legal notice. The defendant filed his written statement and in written statement in para 2 he had categorically denied that the plaintiff had given the alleged room to the defendant on license on temporary basis. Even in para 1, the defendant had denied that the plaintiff had taken on lease the said land from the Municipal Council, Chandrapur. The defendant has, in fact, denied each and every allegations made by the plaintiff in his plaint. Both the parties have amended their pleadings more than once and alternative pleas have been raised by the defendant. In para 8, the defendant had stated that he is doing grain business in the Goal Bazar, Chandrapur. The relevant portion on which the learned Counsel appearing on behalf of the plaintiff has relied on needs to be reproduced.

Para 8 :

"It is submitted that the defendant is doing Grain business in Goal Bazar, Chandrapur. The plaintiff told the Defendant that he had a Tin shed in the said Goal Bazar which was used by the plaintiff for the Grain business long back. Since the plaintiff was not interested in keeping the said shed with him, he sold the said shed to the defendant about 10 years back relying on the plaintiffs assurance about his death. The defendant has paid Rs.10,000.00 to the plaintiff towards the price of the said shed and right of occupation of the land. No document was executed as, according to the plaintiff, it would have been against Municipal rules and conditions. However, the said transaction is void as the same is forbidden by Municipalities Act, and Bye-laws framed thereunder. The parties being near relatives, the defendant also did not insist on any documentary evidence but he has been in possession of the shed since last about 10 years."

15. The submission made by the learned Counsel appearing on behalf of the plaintiff is that by virtue of this averment made by the defendant, the fact that plaintiff had given possession of the suit premises to the defendant, cannot be accepted. The averments made in the written statement cannot be considered in isolation. The defendant has categorically denied the submission of the plaintiff in paras 1 and 2 in respect of his allegation that he had handed over the possession to the defendant. The premises mentioned in para 8 pertain to some premises in Goal Bazar, Chandrapur. The reference of Goal Bazar is not to be found in the description of the premises as mentioned in para 1 of the plaint. As such it is difficult to come to a conclusion that the premises referred to in para 8 of the written statement are the same premises which are described as suit premises in para one of the plaint. The plaintiff could have entered the witness box and given oral evidence which he has refrained initially by filing a pursis at Exh.62 in which he has stated that the plaintiff could examine himself and his witnesses in rebuttal after the defendant had entered his evidence. In my view, in the present case the defendant has not admitted any of the averments made by the plaintiff and, therefore, the question of plaintiff rebutting the evidence of the defendant does not arise. After the said pursis was filed by the plaintiff the defendant also has filed pursis stating that he did not wish to give any evidence. Even thereafter the plaintiff did not enter the witness box and examine himself and his witnesses. Under these circumstances, I am of the view that adverse inference will have to be drawn against the plaintiff for not examining himself and his witnesses to prove his case. Therefore, it cannot be said that the plaintiff has proved that he had given the possession of the suit premises to the defendant. From the perusal of the written statement, it is clear that the defendant had not admitted that he was put in possession by the plaintiff. Since this basic condition has not been proved the provision of Section 116 of the Indian Evidence Act would not be applicable in the facts of the present case. In this view of the matter, the ratio of the judgments relied upon by the learned Counsel appearing on behalf of the appellant-original plaintiff would not be applicable in the instant case. Thus, there is no merit in the submissions made by the learned Counsel appearing on behalf of the appellant-original plaintiff. There is a concurrent finding given by both the Courts below on all other aspects. Under the circumstances, no interference is called for in the Judgment and Order passed by both the Courts below while exercising jurisdiction under section 100 of the Code of Civil Procedure. The Second Appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.

Second Appeal dismissed.