The burden of proof lies with the party claiming tenant rights, requiring proper evidence to establish the nature of possession.

JUDGMENT

Navin Chawla, J. (Oral)

CM APPL. 12191/2021 in RSA 5/2021

1. This appeal has been filed by the appellant challenging the judgment and order dated 31.07.2020 passed by the learned Additional District Judge-01, Shahdara District, in appeal, being RCA DJ No. 44/2019, dismissing the appeal of the appellant against the judgment and decree dated 14.02.2019 passed by the learned Senior Civil Judge in Suit being CS No. 7323/2016.

2. The Suit had been filed by the respondent seeking possession, permanent injunction and recovery of damages from the appellant herein with respect to the suit property, that is, 1st Floor of the residential building No. 308, AGCR Enclave, Karkardooma, Delhi-110092, consisting of one room, kitchen, bathroom and balcony. It is the case of the respondent that the appellant was inducted in the suit property as a licensee on humanitarian grounds as the appellant's wife was working as a house maid of the respondent. The possession was in the nature of gratuitous license which was terminated by the respondent through legal notice dated 27.10.2014 issued to the appellant.

3. On the other hand, the appellant claimed that the appellant was in possession of the suit property as a tenant paying rent of Rs. 2,400/- per month to the respondent.

4. The case of the appellant was, however, disbelieved by both the learned Trial Court as also by the learned Appellate Court with the Suit being decreed in favour of the respondent.

5. The learned counsel for the appellant submits that the learned Trial Court as also the learned Appellate Court failed to appreciate that the daughter of the respondent, who was produced as PW-2, had, in a statement recorded before the police, admitted that the appellant was occupying the tenanted premises as a tenant. The learned counsel for the appellant submits that the said document was discarded by both the learned Trial Court as also the learned Appellate Court only on the ground that the same was not exhibited in the trial and therefore, remained unproved. He submits that there was an error in not appreciating that the PW-2, in her statement recorded on 16.02.2016, during cross examination admitted her signatures on the said document. The statement recorded before the police, being a public document in terms of Section 74 of the Indian EVIDENCE ACT , 1872, was admissible under Section 76 and Section 65 (e) of the Act. He submits that once the signatures were admitted by PW-2, PW-2 being admittedly a well-read lady, such admission was relevant to be considered by the learned Trial Court as also by the learned Appellate Court.

6. I have considered the submissions made by the leaned counsel for the appellant, however, find no merit in the same. The learned Trial Court in its judgment and decree dated 14.02.2019 has, in detail, considered the evidence lead by the parties including on the alleged statement made by PW-2. Specifically on this document, the learned Appellate Court in the impugned judgment, has observed as under:-

24. Further, the Appellant in order to prove that he is a tenant in the property in question, relied upon the statement given by the PW-2 to the police, wherein she has purportedly stated that the Appellant was living as tenant in property in question for the last 14-15 years. The said document Mark XX is stated to have been put to the witness during cross examination on 16.02.2016, however, perusal of cross examination of PW2 reveals that she specifically denied the suggestion given to her as to giving any statement to police regarding the fact that Appellant and his wife were residing in the property in question for the last 14-15 years as tenant. In fact, it was voluntarily stated by her that defendant was his father's caretaker and he w