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2023 Supreme(Jhk) 895
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
Ashit Kumar Basak @ Asit Kumar Basak, son of Late Radha Raman Basak - Appellant
Versus
Jyotsana Basak, w/o Late Amulya Kumar Basak and Ors. - Respondents
Second Appeal No. 130 Of 2010
Decided On : 10-01-2023
For the Appellant : Mr. Indrajit Sinha.
For the Respondents: Mr. Praveen Akhauri.
The burden of proof to establish a title and rights over the suit property lies upon the plaintiff, as per the Evidence Act.
Headnote:
relationship of licensor and licensee - Recovery of Possession - [Evidence Act, Section 101, Section 102] - The court discussed the relationship of licensor and licensee between the parties and the plaintiff's right, title, and interest over the disputed shop. The court highlighted the burden of proof on the plaintiff to establish a better title and rights over the suit property, as per Evidence Act, Section 101 and Section 102. The court also referred to a recent judgment by the Hon'ble Supreme Court to emphasize the burden of proof on the party asserting the existence of a particular state of things.
Fact of the Case:
The appellant filed a second appeal against the judgment and decree passed by the lower court, which reversed the finding in a title suit for recovery of possession of a shop premises. The dispute revolved around the relationship of licensor and licensee, the plaintiff's right, title, and interest over the disputed shop, and the entitlement to recover possession.
Finding of the Court:
The court found that the plaintiff failed to prove the relationship of licensor and licensee over the disputed shop, and therefore, was not entitled to recovery of possession. The burden of proof to establish a title lay upon the plaintiff, and the court emphasized the need for the plaintiff to prove title as per the Evidence Act.
Issues: The issues revolved around the relationship of licensor and licensee, the plaintiff's right, title, and interest over the disputed shop, and the entitlement to recover possession.
Ratio Decidendi: The court's decision was based on the failure of the plaintiff to prove the relationship of licensor and licensee and establish a better title and rights over the suit property, as per the burden of proof under the Evidence Act.
Final Decision: The second appeal was dismissed, affirming the judgment of the lower court.
JUDGMENT :
Heard Mr. Indrajit Sinha, learned counsel for the appellant and Mr. Praveen Akhauri, who appeared on behalf of the respondents.
2. This second appeal has been filed aggrieved and dissatisfied with the judgment and decree dated 17.04.2010 (decree signed on 27.04.2010) passed by the learned 1st Additional District Judge, Singhbhum (East), Jamshedpur in Title Appeal No.8 of 2005 reversing the judgment and decree dated 14.02.2005 (decree signed on 28.02.2005) passed by the learned Subordinate Judge-V at Jamshedpur in Title Suit No. 12 of 1990.
3. Title Suit No.12 of 1990 was instituted for recovery of possession of the suit premises evicting the defendant from the property mentioned in the schedule of the plaint. The said suit was decreed in favour of the plaintiff vide judgment dated 14.02.2005 and the defendant was directed to vacate the disputed shop premises within 60 days from the order passed in Title Suit, failing which, the plaintiff may get recovery of possession of the suit shop premises through the process of the Court. Being aggrieved with the said judgment and decree, the defendant filed Title Appeal No.08 of 2005 and vide judgment dated 17.04.2010, learned 1st Additional District and Sessions Judge, Jamshedpur, Singhbhum East has been pleased to reverse the finding in the suit. Aggrieved with the said judgment in the Title Appeal, the appellant has filed the present second appeal.
4. In the plaint, it was contended that the shop no.13, Old Tina Shed, Bistupur Bazar, Jamshedpur belong to M/s TISCO Ltd. and M/s TISCO Ltd. allotted the shop to Radha Raman Basak, the father of the appellant/plaintiff on monthly tenancy basis and the father of the appellant/plaintiff was in occupation of the suit premises as a monthly tenant under M/s TISCO Ltd. as a monthly tenant. Radha Raman Basak died in the year 1950 leaving behind his four sons including the appellant/plaintiff. After the death of the father of the appellant/plaintiff, the tenancy of the suit premises was transferred in favour of the appellant/plaintiff by M/s TISCO Ltd. and accordingly the appellant/plaintiff was paying rent and other charges to M/s TISCO Ltd. and the defendant was in possession of the suit premises on leave and licence of the appellant/plaintiff. It was further contended that the plaintiff's father Radha Raman Basak and defendant's father Gopi Pada Basak were brothers. Gopi Pada Basak was a TISCO employee and his son Manindra Nath Basak was permitted to run a business in the said shop premises by the father of the plaintiff. The shop was lying vacant and was in occupation of the plaintiff. The defendant passed Matriculation in the year 1967 and was sitting idle, thereafter, he requested the plaintiff to allow him to occupy the said shop no.13 where he wanted to run business and agreed to vacate the same as and when it will be required by the plaintiff and accordingly the defendant was allowed to occupy the said shop premises on leave and licence of the plaintiff. It was further contended that the plaintiff in the year 1989 requested the defendant to vacate the suit shop premises, but he refused to vacate the shop and that is why the plaintiff issued notice on 10.09.1989 to the defendant though his lawyer asking the defendant to vacate the shop and deliver possession of the shop premises immediately from the expiry of 30.09.1989 and therefore his license was revoked and the defendant was asked to handover the possession of the suit shop premises to the plaintiff by 01.10.1989. The said notice was replied by the defendant denied the claim of the plaintiff and refused to deliver the possession and pursuant to that the said title suit was filed by the plaintiff.
5. The defendant appeared in the said title suit and filed written statement. The defendant challenged the relationship of licensor and licensee and denied the averments made in the plaint. In the written statement, the point of maintainability, waiver, acquiescence were taken by th
