VINAYAK MAHADEO GANGAN Vs. BHASKAR DATTATRAYA DONGRE

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 17th December, 1993 passed by the learned Judge, City Civil Court. Greater Bombay in S. C. Suit No. 1778 of 1972. The appellant is the original defendant.

(2.) THE suit for declaration was filed by the respondents-plaintiffs for the possession of Shop No. 1547, admeasuring 10 x 15 ft. , situated at New Colony, North of K,d. Railway, Govandi, Bombay. It is the case of the plaintiffs that original plaintiff had purchased a stall No. 41 at Road No. 1, Lotus Colony, Govandi, Chembur from one Shri Vellapan for the consideration of Rs. 3,500/ by an agreement dated 13th March, 1967. It is also the case of the plaintiffs that before that said Vellapan had given stall No. 41 to the original plaintiff on Leave and Licence Agreement dated 23rd November, 1965 and he was in possession of stall No. 41 situated at Road No. 1 Lotus Colony, Govandi as a tenant of Vellapan for the period of 1965 to 1967 and in 1967, he purchased a Stall. It is the case of the plaintiffs that the plaintiff has given to the appellant-defendant the Stall for running the business of Tobacco and said premises acquired by the Municipal Corporation-respondent No. 2 for putting a slaughter house. The occupant of the respective premises were offered alternate premises at New Colony, North of K. D. Railway, Govandi, Bombay in lieu of the said Stall No. 41. It is the case of the plaintiffs that the respondent No. 2 Bombay Municipal Corporation on survey found that the appellant-defendant who was found in possession of Stall No. 41, situated at Road No. 1, Lotus Colony, Govandi, Chembur, Bombay, he had been offered Shop No. 1547, admeasuring 10 x 15 ft. situated at New Colony, North of K. D. Railway, Govandi, Bombay in lieu of Stall No. 41 and accordingly, the name of the appellant came to be entered in the record and the name of the appellant-defendant has been shown as the occupant and the owner of the said-shop. It reveals from the record that respondent-plaintiff informed respondent No. 2 Bombay Municipal Corporation that he has terminated the leave and licence of the defendant and as he has purchased this premises from the original tenant Vellapan by written agreement, his name should be entered in the record of right. However, it appears in the record the name of the defendant is shown as the owner of the shop in dispute and the claim of the plaintiff has been ignored totally. Hence, the suit came to be filed. It further reveals that before the suit, a suit being Suit No. 708 of 1971 for eviction was also filed. However, it appears that, that suit became infructuous in view of the suit filed by the plaintiff. It reveals from the record that the defence of the defendant in the suit is of total denial but the defendant claims to be the owner of the suit shop by virtue of the alleged purchase from the Vellapan, the original tenant of the suit shop in the year 1965. There is no document produced by the defendant in support of his claim. After framing the issues and recording the evidence of the parties, the learned Judge has allowed the suit and passed the decree by his order dated 17th December, 1993. Hence, this appeal.

(3.) IT has been contended by Mr. Pandey, learned Counsel appearing on behalf of the appellant that the learned Judge has relied on the documents Exhibits "b" and "c" which are not admissible in the evidence. It has been argued that the signature on Exhibit B i. e. the Agreement of Leave and Licence between the plaintiff and Vellapan is not proved. Further, the document of Sale Deed dated 13th March, 1967 (Exhibit, "c") is not a registered document, the learned Judge has wrongly allowed and exhibited the same in evidence. In support of his argument, he relied on certain authorities as under:-