USHA DATTATRAYA PACHPANDE Vs. LATE MANOJ EKNATH CHAUDHARY

JUDGEMENT

(1.) Present appeal has been filed by the original defendants challenging the concurrent judgment and decree passed in Regular Civil Appeal No.188 of 2011 dated 17.11.2016, thereby their appeal came to be dismissed in which they had challenged the judgment and decree passed in Special Civil Suit No.134 of 2003 by learned 4th Joint Civil Judge, Senior Division, Jalgaon dated 30.08.2011, thereby the suit for possession and mesne profits filed by the present respondents came to be decreed.

(2.) Heard learned Advocate Shri. S. B. Yawalkar for appellants/original defendants and learned Advocate Mr. M. M. Bhokarikar for respondent No.3. Respondent Nos.1 and 2 were served, but remained absent.

(3.) It has been vehemently submitted on behalf of the appellants that both the Courts below have not properly appreciated the evidence as well as the law points involved in the case. Both the Courts below have not framed proper issues and points for consideration respectively. The defendants had come with the case that they are the tenants of the suit property inducted by the father of the original plaintiffs and defendant No.2 had made the construction in the suit premises with the consent of father of the plaintiffs. Both the Courts below failed to consider the admission given by the father of the plaintiffs that he has not issued any rent receipts to other tenants. By applying the same rule, it could have been inferred that he had not issued rent receipt to the defendants also. Both the Courts below have blamed the defendants for not producing the rent receipts. When in fact the rent receipts were not issued at all, there was no question of production of the same or giving any reason for not producing them on record. Both the Courts below failed to consider that the plaintiffs had not produced on record that the defendants were the gratuitous licencee as they were inducted on the health ground of defendant No.1. Defendant No.2 was serving with the partnership firm ' Auto Point' ; wherein the original plaintiff was the partner and the rent amount of Rs.200/- per month was deducted from his salary. There was no proper refutal by the plaintiff in that respect. It was the specific pleading of the defendants that though the land belonged to the father of the plaintiff which was, in fact, purchased when the plaintiff was a minor and could not have any income, it was given on rent at the rate of Rs.200/- per month. The defendants made construction on the same by spending about Rs.35,000/- and under the said circumstance, they had the entire control/exclusive possession over the property. Therefore, proper distinction ought to have been drawn between either it was lease as defined in Section 105 of the Transfer of Property Act, 1882 or it was a licence defined in Section 82 of the Indian Easements Act, 1882. Reliance has been placed on the decision in C. M. Beena and another v. P. N. Ramchandra Rao , 2004 AIR(SC) 2103 : (2004 AIR SCW 1858)], wherein following are the observations :