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BOMBAY HIGH COURT
T.V. Nalawade, J.
Vishwanath Hiralal Joshi —Appellant
versus
Vimalabai Magangal Joshi
& Anr. —Respondents
Second Appeal No. 675 of 2013, With, Civil Application No. 12386 of 2013
Decided on 11.3.2014
Counsel for the Parties:
For the Appellant:Mr. G.V. Wani, Advocate
For the Respondent No.1:Mr. V.T. Choudhari, Advocate.
IMPORTANT POINT
Municipal entries do not have much evidentiary value.
Headnote:(A) Specific Relief Act, 1963—Section 5—Possessory suit—Appeal by defendant against order of reversal—First Appellate Court observed that there is evidence of power of attorney, husband of plaintiff to prove that defendant is licensee and evidence also shows that he has personal knowledge about permission given by plaintiff in that regard—Circumstance that name of defendant is shown as tenant in data register, assessment record of Municipal Council cannot help defendant to prove is case—Purpose of creating such record is to make assessment of general tax—Only on the basis of such entry inference cannot be drawn that occupant is tenant—Appeal dismissed. (Paras 5, 6, 9, 13 and 14)
(b) Civil Procedure Code, 1908—Order 3 Rules 1 and 2—Power of Attorney—Possessory suit—Not in each and every case, it is necessary for the plaintiff to step in witness box to prove his case—Plaintiff can put on record sufficient material with regard to his case—General power of attorney holder is husband of plaintiff and there is evidence on his personal knowledge. (Para 12)
(c) Easements Act, 1882—Section 3—Easementary suit—For proving that defendant is tenant, statutory requirement mentioned in Rent Legislation needs to be fulfilled—For license no record is required to be created but when there is tenancy, some record like rent receipt is required to be created—When plaintiff comes with the case that defendant is a licensee, burden lies on defendant to prove that he is a tenant—Defendant has failed to discharge this burden. (Para 13)
Result: Appeal dismissed.
T.V. Nalawade, J.—The appeal is filed against judgment And decree of R.C.A. No. 259/2007 which was pending in the Court of District Judge-2, Jalgaon. The appeal was filed by present respondent/owner against judgment And decree of R.C.S. No. 71/2001 which was pending in the Court of Civil Judge, Junior Division, Jalgaon. The suit was filed by present respondent for relief of possession of some premises And the suit was dismissed by the Trial Court. The First Appellate Court has set aside that judgment And decree And the decision is given in favour of owner. Both the sides are heard.
2. It is the case of respondent/owner that the defendant is a son of sister of her mother-in-law. It is contended that the defendant was in dire need of some premises for starting business as he was unemployed. It is contended that considering his need And relationship, the plaintiff allowed him to use plat-form portion (Ota portion) of her house for the business. It is contended that defendant was in financial crises And so, such permission was given And it was gratuitous license. It is her case that when she made demand to vacate the premises, the defendant refused to do so And so, she was required to file suit for possession.
3. The defendant/present appellant took many defences in the suit. He tried to defend the suit by contending that the plaintiff has no title And she is not absolute owner of the property. He took the defence that he is in possession as a tenant And not as a licensee. He contended that the premises was given to him for monthly rent of Rs. 50/- And this amount was increased from time to time And on the date of suit, the monthly rent was Rs. 350/-. It is his case that he runs a Sweet Mart in the premises And he has earned reputation And goodwill. He prayed for dismissal of the suit.
4. The plaintiff examined her husband, who was holding general power of attorney for the plaintiff. She examined one more witness to prove that it is the relationship of licensor And licensee. The defendant examined himself And he produced some record to show that he is a tenant.
5. The Trial Court dismissed the suit on the ground that plaintiff had not stepped in the witness box And in view of nature of dispute, the evidence given by general power of attorney holder of plaintiff cannot prove the case. It is observed that the plaintiff has failed to prove that the defendant is licensee. However, it is also held that the defendant has not proved that he is a tenant. The Trial Court placed reliance on the case reported as [Janki Vashdeo Bhojwani And Anr. Vs. Indusind Bank Ltd. And others, 2004 AIR SCW 7064.] And the Trial Court has held that the evidence of power of attorney cannot be used to prove that the defendant is licensee.
6. The First Appellate Court has observed that there is the evidence of power of attorney, husband of plaintiff to prove that defendant is licensee And the evidence also shows that he has personal knowledge about the permission given by the plaintiff in that regard. The evidence of one Shri. Pande (PW 2), a tenant of plaintiff occupying some portion of the same house, is also believed by the First Appellate Court. The First Appellate Court has considered the circumstance that there is no documentary evidence with the defendant like rent receipt And it is held that the defendant has failed to prove that he is a tenant. In view of these circumstances, the decree of possession is given in favour of the plaintiff.
7. In the appeal memo, following grounds are mentioned And the learned counsel for the appellant submitted that these grounds need to be considered as substantial questions of law, which are as under :-
(i) That, the relevant material is not considered by the Courts below And that material includes the deposition given in previous proceeding And data register viz. assessment record of the Municipal Council And the license under the Shop Act.
(ii) That, wrong inference is drawn by the Appellate Court that the d
