The burden of proof in possession disputes and the validity of lease agreements.

JUDGMENT :

1. Heard Mr. S. D. Lotlikar, learned Senior Advocate who appears along with Ms. S. Arur, for the Appellant and Mr. P. A. Kholkar who appears along with Mr. N. Shirgaonkar, for Respondent Nos.1, 4(a) to (c) and 5.

2. This Second Appeal was admitted on 29th August 2013 on the following substantial question of law.

“1. Whether, in view of the undisputed position, that the "suit shed" was constructed by M/s Shreemala Industries of which the Respondent No. 2 was admittedly a partner, and the possession of the plot admeasuring 100 square metres, was undisputedly with the said Firm and further admitted position that the Respondent nos. 2 and 3 had started the Factory and were carrying on business therein, the execution of the Deed of Lease in respect of the "suit shed", could not be challenged by the Respondent nos. 4 and 5, nor a claim by them, to be in possession thereof, could be entertained?

3. Mr. Lotlikar, learned Senior Advocate urged for framing of an additional substantial question of law to the following effect.

“2. Whether the counterclaim filed by the original Defendant Nos.4 and 5 seeking eviction of the Plaintiff (present Appellant) was at all maintainable in the absence of any counterclaim to seek eviction of original Defendant Nos. 2 and 3 who had leased the suit shed in favour of the original Plaintiff vide Deed of Lease dated 12th March 1993?”

4. Mr. Kholkar opposed the formulation of such additional substantial question of law by pointing out that such issue was never raised either before the Trial Court or the First Appellate Court at any stage. In any case, he submitted that such an issue does not even arise in the facts and circumstances of the present case.

5. Mr. Lotlikar submitted that the additional substantial question of law, as the name suggests is a pure question of law that arises in the facts and circumstances of the present case and therefore, the same may be formulated.

6. Although indeed, such a question was never raised by the original Plaintiff (Appellant herein) either before the Trial Court or the First Appellate Court, in the interest of justice, the additional substantial question of law is formulated in the exercise of the powers under Section 100(5) of the CPC. At the same time, liberty is retained in the Respondents to urge that such a question neither arises nor is the same a substantial question of law.

7. Mr. Lotlikar submits that two Courts have misdirected themselves in law by holding that the Deed of Lease dated 12th March 1993 was executed based on power of attorney dated 27th October 1991, which had conferred no powers upon the Defendant Nos.2 and 3 to lease the suit shed. He submits that there is overwhelming evidence on record that the suit shed was constructed by Defendant Nos.2 and 3. He submits that there is overwhelming evidence on record that Defendant Nos.2 and 3 were in possession of the suit property even before the execution of the agreement for sale dated 20th March 1992. He submitted that the agreement for sale dated 20th March 1992 specifically states that Defendant Nos. 2 and 3 were put in possession of the suit property on which they had already constructed the suit shed. He submits that in such facts, Defendant Nos.2 and 3 were authorised to lease out the suit shed to the Plaintiff (Appellant herein) without having to resort to the power of attorney dated 27th October 1991. He submits that the impugned decrees are therefore liable to be interfered with and the Plaintiff's suit decreed.

8. Mr. Lotlikar submits that the two Courts erred in non-suiting the Plaintiff on the ground that the suit property had been agreed to be sold to the partnership firm M/s Shreemala Industries and the Deed of Lease dated 12th March 1993 in respect of the suit shed situated in the suit property was executed by Shrikant Naik and his wife Rekha Naik. Mr. Lotlikar pointed out that these were only two partners of the firm and the two Courts erred in treating the partnership firm as so