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Bombay High Court
Smt. Roshan Dalvi
ROLEX MARBLES -Appeallant
Versus
MUNICIPAL CORPORATION OF GREATER MUMBAI -RESPONDENTS
L. C. Suit 1474 Of 2003
Decided On: 06/15/2007
The only evidence required by the appellant/plaintiff who brings an action in law with regard to claiming a legal right to an immovable property is to show his title. The plaintiff in this case claims tenancy rights. He has, therefore, to produce an unambiguous document showing his tenancy. His case must rest on such document. In fact of entire evidence which relates to other counterfoil receipt books, for receipts which have not been issued is irrelevant and could have been disallowed by the trial Court. The trial Judge allowed the evidence to come on record to see its worth. Having found it not worthy to show the plaintiff’s title to the land claimed, for the reliefs sought, he has rightly not relied upon such evidence.
In the interest of justice the appellant’s Advocate has been allowed to show the Court the evidence which he considered material. The appellant’s Advocate argued that an adverse inference has to be drawn for non-production of the counterfoil receipt books for one year 1984-1985 and for the production of the receipt along with its copy in the counter-foil receipt book. Even if adverse inference is drawn against the respondent No. 2 who is defendant No. 2 in the suit, the appellant’s claim of title to the suit land has not seen. That is what the Judge has rightly considered. Having not shown his title, the appellant is not entitled to the reliefs claimed. Upon considering the evidence relied upon by the appellant’s Advocate and the documents of the appellant it is seen that the impugned judgment refusing to grant reliefs and dismissing the suit of the appellant is correct.
( 2 ) THE ambit of this Appeal is extremely narrow. The legal right of the appellant is essentially to be determined upon documentary evidence since it is with regard to title to an immovable property.
( 3 ) THE appellant claims to have taken on tenancy two distinct lands at two separate times.
( 4 ) THE respondent No. 2 contends that there is no second tenancy and that the appellant has trespassed upon the land outside the land tenanted to him on which he has put up a structure.
( 5 ) THE appellant's suit is for a declaration that the sanction of plan by respondent No. 1, the MMC, which is the Planning Authority, permitting the construction of the compound wall to respondent No. 2 is illegal and injunction against respondent No. 2 not to dispossess him from the second larger open land and against constructing the compound wall within that portion. It is also for injunction restraining respondent No. 2 from interfering with the appellant's business activities on the second larger open land.
( 6 ) THE appellant has therefore, to show his title, right and interest in respect of such open lands.
( 7 ) THE appellant's case can be decided only upon the documents produced and proved by the appellant in support of his claim. The claim to immovable property and the legal right, title and interest claimed therein can only be by production of documentary evidence with regard to such immovable property. The appellant's claim for two lands of entirely different dimensions in the same area under two rent receipts has to be shown. For the reliefs claimed by the appellant showing and proving his legal right by documents is the only requirement. On this basis the impugned Judgment has to be considered.
( 8 ) THE appellant admittedly took on rent one open premises admeasuring about 1500 sq. ft. from the respondent No. 2. The appellant was issued a rent receipt in respect of that open land. That rent receipt is shown to be dated 13th november, 1984. It is for the months of August to November, 1984. It is for Rs. 2000/ -. Hence, for an open land of about 1500 sq. ft. rent at the rate of Rs. 500/- per month came to be charged and paid. The appellant has constructed a structure thereon. There is another lis between the parties in the Small Cause Court, bombay under a Bombay Rent Act with regard to that structure, and with which the Civil Court as well as the Appeal from the Judgment of the Civil Court are not concerned.
( 9 ) THE appellant claims to have taken on tenancy another open land from the respondent No. 2. That is the suit premises. That aspect has been disputed. The appellant has to prove his claim of tenancy on that second open land. That land is admittedly still an open land. It admeasures 6925 sq. ft. The rent receipt shown by the appellant's Advocate for that second larger open land is dated 31st january, 1986. It is for the month of November, 1985, for Rs. 500/ -. Hence, for the much larger open land also in the month of November, 1985 the rent which was charged was Rs. 500/- per month, if the case of the appellant has to be believed under that claim.
( 10 ) AT the time the second open land was taken, the appellant already had taken on tenancy the first open land on which a structure has, later has been constructed by the appellant. Hence, the appellant must have two rent receipts for the period immediately after he took on tenancy the second larger open land. The appellant has not produced two separate rent receipts for the two separate lands tenanted by him from the respondent No. 2 for the month of November, 1985 or thereafter.
( 11 ) IT is argued on behalf of the appellant that after the first rent receip
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