Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8400-8401 OF 2011 [Arising out of SLP (C) Nos. 6095-6096/2009]

Dnyaneshwar Ranganath Bhandare & Anr. … Appellants

Vs.

Sadhu Dadu Shettigar (Shetty) & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Parties will be referred by their ranks in the first matter  

arising from the suit for possession in RCS No.278/1993.

2. The case of appellants is as under : The appellants are brothers and are  

the  owners  of  premises  No.289  (New  No.424)  Gandhi  Chowk,  Vita  

(described  in  schedule  ‘A’  to  the  plaint  and  referred  to  as  the  ‘said  

property’). Two rooms in the said property, one measuring 10’ 6” x 22’ and  

the other measuring 10’ x 10’ (described the schedules B and C to the plaint  

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and together referred to as the “suit portions”) are the subject matter of the  

dispute. The said property originally belonged to Ranganath Bhandare, who  

was  living  in  the  said  property  with  his  wife  Laxmibai  (mother  of  the  

appellants), two sons (appellants 1 and 2) and a daughter. After the death of  

Ranganath Bhandare, the daughter got married in 1984 and started living  

separately.  Appellant  No.2  got  married  in  1985  and  shifted  to  Sangli  in  

connection with his employment in the beginning of 1986. Appellant No.1  

was  away  at  Pune  in  connection  with  his  employment.  Thus  appellants’  

mother Laxmibai who was aged and suffering from several complaints was  

staying alone  in  the  said  property from the  middle  of  1986.  The second  

respondent (Chhaya) was engaged in or about the year 1985 as a servant to  

look after Laxmibai and was allowed to reside in one room as a licencee  

without any rent. In November 1986, Laxmibai died. The second respondent  

requested the appellant for some time to vacate the room stating that she  

would leave as soon as she got some alternative accommodation. As second  

respondent had looked after their mother and their property, the appellants  

agreed for her continuing as licencee for some time. She did not however  

vacate. Taking advantage of the fact that the owners were not around, she  

and  the  first  respondent  (Sadhu)  with  whom  she  had  a  ‘living-in-

relationship’, broke open the door of another room (10’ x 10’) and occupied  

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it. Further, first respondent started asserting that he is the tenant of the suit  

portions (two rooms) and filed RCS 114/1993 on the file of the Civil Judge,  

Junior  Division,  Vita,  against  the  first  appellant,  seeking  a  permanent  

injunction. In these circumstances, the appellants filed RCS No.278/1993 for  

possession of the suit portions, contending that respondents were gratuitous  

licencees regarding one room  and unauthorized encroachers in respect of  

second  room.  They  also  sought  damages/mesne  profits  for  wrongful  

occupation.

3. The suit was resisted by the respondents on the ground that the first  

respondent (second defendant) was the husband of second respondent (first  

defendant); that they were in occupation of the suit premises as tenants on a  

monthly rent of `25 from February 1982; that the rent was increased to `60/-  

per  month  from  1988;  that  the  appellants  illegally  disconnected  the  

electricity supply to the suit portions on 25.8.1991 and tried to forcibly evict  

the respondents; that the first respondent had therefore lodged a complaint  

under section 24(4) of the Bombay Rents Hotel, and Lodging House Rates  

Control Act, 1947 (‘Rent Act’ for short) and filed an application for fixation  

of standard rent under section 11 of the Rent Act. They also alleged that the  

appellants prevented them from carrying out repairs to the premises which  

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was in a dilapidated condition and were threatening to evict them from the  

premises.  Therefore,  the  first  respondent  filed  a  suit  for  permanent  

injunction  in  RCS  No.114/1993  to  restrain  the  first  appellant  from  

dispossessing him from the premises without due process of law.  

4. The suit for permanent injunction (RCS No.114/1993) filed by first  

respondent was resisted by the first appellant. The averments in the plaint  

and  written  statement  in  the  suit  for  injunction  were  the  same  as  the  

averments  in  the written statement  and plaint  respectively  in  the suit  for  

possession filed by appellants.

5. Both suits were tried together. The trial court decreed both the suits by  

a common judgment dated 17.7.2002. The trial court held that the appellants  

are  the  owners  and  they  have  established  that  second  respondent  (first  

defendant) was their licencee. The trial court after exhaustive consideration  

of the evidence held that the respondents had failed to prove that they were  

residing in the suit premises as tenants from February, 1982 on a monthly  

rent of  `25 or that they were paying the rent at the rate of  `60/- per month  

from the year 1988. The trial court also held that the second respondent was  

in  possession  of  the  two  rooms  as  a  licencee  with  the  permission  of  

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Lakshmibai and had continued in occupation as gratuitous licencee and was  

not  a  tenant;  and that  the first  respondent  had not  trespassed or  forcibly  

occupied the second room but  was residing in  the suit  portions with the  

licensee  (second  respondent)  as  her  husband.  As  the  respondents  were  

licensees  and the  licence  had been  revoked,  the  trial  court  held  that  the  

appellants  were entitled to  possession of  the suit  portions.  Consequently,  

RCS No.278/1993 for possession filed by the appellants was decreed and the  

respondents were directed to deliver vacant possession of the suit portions  

within sixty days. The trail court also directed a separate enquiry regarding  

damages and mesne profits. As the claim for tenancy was rejected, but as  

respondents were in occupation of two rooms, the trial court decreed RCS  

No.114/1993 filed by first respondent in part, and directed that the appellants  

shall not evict the first  respondent otherwise than in accordance with law.  

As the trial court has granted a decree for possession simultaneously, the  

decree in RCS No.114/1993 was academic.

6. Feeling  aggrieved  respondents  1  and 2  filed  Regular  Civil  Appeal  

No.180/2002  against  the  decree  for  possession.  Respondent  No.1  filed  a  

Regular  Civil  Appeal  No.198/2002  against  the  dismissal  of  his  suit  for  

injunction.  The first  appellate  court  (District  Court,  Sangli)  allowed both  

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appeals by its common judgment dated 13.12.2007. The first appellate court  

formulated  the  following  five  questions  for  consideration  :   (i)  Whether  

defendants in RCS No.278/93 are in unauthorized and illegal possession by  

making an encroachment in suit property?  (ii) Whether the suit property-B  

& C portions was given to Chhaya as a gratuitous licensee in since 1986?  

(iii)  Whether  the possession of  schedules  B & C properties  by  Sadhu is  

referable  to  any legal  right?   (iv)  Whether  the  possession  of  Sadhu was  

illegally obstructed by the owners? (v) What relief?  

7. The first appellate court answered the first two points in the negative  

and the third and fourth in the affirmative. The first appellate court held that  

appellants failed to prove that the respondents were gratuitous licensees or  

that they had encroached upon one room. Consequently, it dismissed the suit  

for possession by appellants and decreed the suit for injunction by the first  

respondent.  It  did  not  address  itself  or  decide  whether  respondents  were  

tenants. It held that they had paid some amounts and appellants had failed to  

explain the said payments.  

8. The second appeals filed by the appellants challenging the judgment  

and decree of the first appellate court were dismissed by the High Court by a  

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short common order dated 7.10.2008 holding that the finding of fact by the  

lower appellate court that the respondents were not gratuitous licensees did  

not  call  for  interference  and  no  substantial  question  of  law  arose  for  

consideration.  The  said  common  judgment  is  under  challenge  in  these  

appeals by special leave.

9. Normally this Court will not, in exercise of jurisdiction under Article  

136 of the Constitution of India, interfere with finding of facts recorded by  

the first  appellate  court,  which were  not  disturbed by the High Court  in  

second appeal. But what should happen if the first appellate court reverses  

the findings of fact recorded by the trial court by placing the burden of proof  

wrongly  on  the  plaintiffs  and  then  holding  that  the  plaintiffs  did  not  

discharge  such  burden;  or  if  its  decision  is  based  on  evidence  which  is  

irrelevant or inadmissible; or if its decision discards material and relevant  

evidence, or is based on surmises and conjectures; or if  it bases its decision  

on  wrong  inferences  drawn  about  the  legal  effect  of  the  documents  

exhibited; and if grave injustice occurs in such a case on account of High  

Court missing the real substantial question of law arising in the appeal and  

erroneously  proceeds  on  the  basis  that  the  matter  does  not  involve  any  

question  of  law and summarily  dismisses  the  second appeal  filed by the  

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appellant? In this context we may remember that the legal effect of proved  

facts  and  documents  is  a  question  of  law.  (See  Dhanna  Mal   vs.  Rai   

Bahadur Lala Moti  Sagar [AIR 1927 P.C.  102] and  Gujarat  Ginning &  

Manufacturing Co. Ltd. vs. Motilal Hirabhai Spinning & Manuacturing Co.   

Ltd. [AIR 1936 PC 77]. In such cases, if the circumstances so warranted, this  

court may interfere in an appeal by special leave under Article 136. Let us  

therefore  consider  whether  circumstances  in  this  case  warrant  such  

interference.  

10. Two suits were tried together. In both the suits (suit for possession  

filed by the appellants, and suit for permanent injunction filed by the first  

respondent),  the trial  court  framed issues  placing the burden on both the  

plaintiff and defendants. The appellants were required to prove whether the  

suit portions were given to second respondent as a gratuitous licensee. The  

respondents were required to prove that they were in occupation from 1982  

as  tenants,  initially  by  paying  ` 25/-  per  month  as  rent  up  to  1988  and  

thereafter at the rate of ` 60/- per month. These issues were proper as it was  

evident  from  the  pleadings  that  respondents  were  in  possession  of  suit  

rooms,  and  appellants  claimed  that  the  respondents  were  licencees  and  

respondents claimed that they were tenants, but admitted that there was no  

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document evidencing tenancy/lease or payment of rent. The entire evidence  

was analysed in detail  by the trial  court,  leading to the findings that  the  

respondents were in occupation of the suit portions as gratuitous licensees  

and the respondents failed to prove that they were tenants paying rent. In  

appeals filed by the respondents, the court wrongly shifted the entire burden  

of proof on the appellants and held that the appellants had failed to prove  

that respondents were gratuitous licensees and consequently dismissed the  

suit  for  possession  filed  by the  appellants.  As noticed  above,  admittedly  

there was no lease deed or tenancy agreement to evidence the tenancy; nor  

were there any receipts  for  payment  of  any rent.  The first  appellant  had  

given evidence on oath that respondents were gratuitous licensees and they  

had never paid any rent or other charges and his evidence was corroborated  

by  a  neighbour  (PW2).  In  the  circumstances,  the  burden  was  on  the  

occupants (respondents) to establish that they were tenants and not licensees.  

But the first  appellate court  chose to wrongly place the burden upon the  

appellants.  The first  appellate  court  failed  to  record  any finding that  the  

respondents were the tenants. The documents produced by the respondents  

which merely showed their possession were wrongly interpreted to hold that  

the appellants failed to prove that respondents were gratuitous tenants.  

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11. The  undisputed  facts  noted  by  the  first  appellate  court  are  :  The  

appellants are the owners of the Premises No.289 (Schedule A property),  

Gandhi  Chowk,  Vita.  The  suit  property  earlier  belonged  to  Ranganath  

Bhandare (father of appellants)  who died in the year 1979. Dnyaneshwar  

(the first  appellant)  was  employed in Pune and was away from Vita  for  

several years. Lata, the sister of appellants got married and left the premises  

in the year 1984. Mukund, the second appellant got married in 1985 and left  

Vita  and  shifted  to  Sangli  in  the  first  half  of  1986.  Appellants’  mother  

Laxmibai who was staying alone, died in November, 1986. Property bearing  

No.289 consists of a ground floor and first floor. Two rooms described in  

Schedules  B  &  C  to  the  plaint  were  in  the  possession  of  the  second  

respondent Chhaya and the first respondent Sadhu. There was no lease deed  

or tenancy agreement  evidencing tenancy, nor were any receipts to show  

payment of any rent.  It is in this background, that the evidence was required  

to be examined.  

12. Laxmibai was an old lady. The second appellant who was staying with  

his aged mother in 1985, was obviously not able to look after her. In the  

beginning  of  1986,  he  left  Vita  in  connection  with  his  employment.  

Laxmibai was all alone from then till her death in November, 1986. Seen in  

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this  background,  the  evidence  of  first  appellant  (PW1)  that  the  second  

respondent was appointed as a servant to look after his mother in the year  

1985 and was permitted to stay in a portion of the premises free of rent,  

corroborated by the evidence of the neighbour (PW2) and the fact that there  

is absolutely no evidence of tenancy, that when his mother Laxmibai died,  

second respondent sought permission to continue living in a portion of the  

property till she got some alternative accommodation, and that the appellant  

agreeing  for  the  same,  particularly  as  that  also  solved  the  problem  of  

someone looking after the property as care taker, becomes very probable.  

His  evidence  is  not  shaken  in  cross-examination.  There  is  nothing  to  

disbelieve the evidence of PW1 and PW2.  

13. According  to  the  appellants,  the  first  respondent  was  not  legally  

married to second respondent and was a live-in-partner. According to the  

respondents  they  were  a  married  couple.  Whether  they  were  a  married  

couple or whether they were merely living together, is not very relevant for  

the decision in this case, as the fact that both were living in the schedule  

portion was not  disputed.  Further  one of  the witnesses  of  respondents  --  

G.S.Thakale  (DW3)  gave  evidence  that  second  respondent  and  first  

respondent were his tenants in the year 1980 and that they got married some  

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time in the year 1981 and that  thereafter  they shifted to the premises of  

appellants, demonstrates that at some point of time, second respondent and  

first respondent were living together without marriage. DW3 also admitted  

that  he did not  have any personal  knowledge about  the solemnization of  

marriage of second respondent with first respondent. However all the courts  

proceeded on the basis that they were married in the absence of any evidence  

to rebut the claim of Respondents 1 and 2 that they were a married couple.

14. None of the owners was staying at Vita and according to appellants  

second respondent continued to stay in a portion of Premises No.289 as a  

gratuitous licencee even after November 1986 and the first respondent was  

also  living  with  her.   Admittedly,  there  was  no  lease  deed  or  tenancy  

agreement  between  the  parties.  No  rent  receipts  are  produced  by  the  

defendants. No document was produced by respondents which showed that  

they were tenants of the suit portions (B & C schedule properties) or that  

they  were  paying  any  rent  to  the  owners  of  the  property.  As  it  was  an  

admitted  position  that  there  was  no document  evidencing the tenancy  or  

evidencing payment of any rent, the trial court also placed the burden upon  

the defendants to prove that they were residing in the premises as tenants.  

The trial court believed the evidence of PW1 supported by the evidence of  

the neighbour (S.B.Bhandare) (PW2), that Laxmibai was ailing and to look  

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after  her  and to  look after  the house,  Laxmibai  had engaged the second  

respondent as a maid servant and given her a place to stay free of cost as  

licencee and that the first respondent was also staying with her and neither of  

them had ever paid any rent to appellants or Laxmibai.  

15.  The  trial  court  considered  the  following  documentary  evidence  

produced by the respondents  to establish that  they were the tenants  :  (a)  

Assessment Register extracts (Ex. 61 and Ex. 62); (b) Tax paid receipts (Ex.  

63, Exs. 67 to 72); (c) Bank cash deposit challan counter foils (Ex. 64 to Ex.  

66); (d) Electoral roll for 1991 (Ex. 74); (e) Notices through counsel dated  

9.10.1992 and 15.6.1993 (Ex. 75 & Ex.77) with acknowledgments (Ex. 76 &  

Ex.78).   The trial court held that none of the above documents established  

the  claim  of  tenancy  by  the  respondents  and  consequently,  held  that  

respondents  failed to prove that  they were in occupation of the premises  

from February 1982 as tenants on a rent of  `25 per month from 1982 and  

`60  per  month  from  1988.  The  court  however  held  that  there  was  no  

evidence to show that Sadhu broke open the lock of 10’ x 10’ room and  

occupied  it  illegally.  The  court  held  that  as  the  evidence  showed  that  

respondents were living as husband and wife and rejected the claim of the  

appellants  that  first  respondent  had  forcibly  occupied  the  premises,  

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particularly as the appellants had not lodged any complaint in regard to such  

illegal occupation. The fact that the respondents were in possession of the B  

& C schedule properties was not in dispute and therefore the evidence that  

was required was evidence to show tenancy and not possession. The trial  

court found that the tax receipts were issued in the name of the owners and  

the fact that first respondent had produced some tax receipts merely showed  

that the owner had sent  the tax through respondents for  payment  as they  

were not staying in Vita. In regard to remittances to the Bank, he found that  

stray remittances of  `300,  `60 and  `300 did not prove that they were paid  

towards the rent, or that the said payments were made with the knowledge  

and consent  of the appellants.  In regard to the other  documents,  the trial  

court  held  that  all  documents  showed  that  the  respondents  were  in  

possession but did not establish any tenancy.

16. On the very same material (that is Assessment Register extracts, tax  

paid receipts,  bank cash deposit  challans,  Electoral Roll  and notices),  the  

first appellate court came to the  conclusion that the case of appellants (in  

the  pleadings  and  evidence),  that  second  respondent  was  inducted  as  a  

licencee  was  not  believable.  Though  the  first  appellate  court  does  not  

anywhere record a  finding that  the respondents  had established that  they  

were the tenants, but concluded that the appellants failed to give a proper  

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explanation in regard to the documents  produced by the respondents  and  

therefore  their  suit  should  be  dismissed.  We  may  examine  each  of  the  

conclusions purportedly recorded by the first appellate court with reference  

to documents.

Re : Tax paid Receipts (Exs. 63, 67 to 72)

17. Ex. 63, 67 to 72 are the tax receipts issued by the Vita Municipality  

produced by first  respondent  which showed that  the taxes for  the period  

1989-90 upto  1992-1993 were paid  in  the  name of  the registered  owner  

Ranganath Bhandare. The first appellate court held that the appellant has not  

explained  these  receipts.  But  if  the  respondents  were  licencees  in  the  

premises, looking after Laxmibai and the premises, there is nothing strange  

in the appellants who were not living at Vita, to send the tax amount through  

respondents, for payment to the Municipal authorities. It is possible that first  

respondent  was  planning  from 1988-89  onwards  to  create  some  kind  of  

evidence to claim tenancy and had therefore retained the tax receipts. What  

is significant is that these receipts do not show that the amounts paid as taxes  

were paid by the first respondent were from his personal funds. Further the  

case of the first respondent is that he was a tenant from 1982 to 1988 paying  

`25/- p.m. and thereafter `60/- per month. It is not the case of the respondents  

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that in addition to rent, they were required to pay the municipal taxes and  

that they were therefore paying the municipal taxes. If payment of taxes was  

part  of  the  consideration  for  the  tenancy,  there  is  no  explanation  by  

respondents as to why they did not pay the taxes for earlier years.

Re : Assessment Register Extracts (Exs.61 and 62)

18. The respondents relied upon the assessment register extracts (Exs. 61  

and 62) pertaining to the years 1988-89 to 1991-92 in regard to property  

No.289. Appellants have relied upon assessment Register extract (Ex. 4) and  

CTS extracts (Exs. 5 to 8).  These documents show that premises No.289  

originally stood in the name of Ranganath Bhandare as owner and thereafter  

the property was mutated in the names of his legal representatives, namely,  

the  appellants,  their  mother  and  sister.  They  also  showed  that  initially  

Bhanudas  Keshav  Waghmode  was  a  tenant  in  the  said  property.  Ex.  62  

pertaining to the years 1988-89 to 1991-92 showed that apart from Bhanudas  

Keshav Waghmode, first respondent was also an occupant of a portion of the  

premises.

19. The fact that Bhanudas Keshav Waghmode was a tenant of another  

portion of premises No.289 is not in dispute. The fact that second respondent  

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and first respondent were also living in premises No.289, has never been in  

dispute.  The  issue  is  whether  they  were  in  occupation  as  tenants  or  as  

licensees. The assessment register extract would not help the respondents to  

establish that they were tenants of a portion of the premises. It will at best  

help them to show that they were occupying a portion of premises No.289.  

The fact that the name of first respondent was introduced as an occupant  

only during the year 1988-1989 belies his case that he was in occupation of  

the suit portions as a tenant from 1982. It only shows that in the absence of  

the owners, first respondent had managed to get his name inserted in the  

municipal records as an occupant.   

Re : Remittances to owner’s account (Exs. 64, 65 and 66)

20. Exs. 64 to 66 produced by first respondent show that he had deposited  

`300, `60 and `360/- on 19.8.1988, 20.11.1991 and 14.3.1989 to the account  

of first appellant with Bank of Karad. The case of the respondents was that  

when Laxmibai inducted them as tenants of the suit portions on a monthly  

rent of `25/-; that they used to pay rent to Laxmibai; that after her death, they  

used  to  pay  rent  to  the  first  appellant;  that  in  1988,  the  first  appellant  

compelled them to increase the rent to ` 60/-; that as both the appellants were  

living outside  Vita,  the first  respondent  used to  deposit  rent  in  the bank  

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account of the first appellant with Bank of Karad.  The first appellate court  

held the fact  that the amounts were deposited to first  appellant’s account  

showed that the appellants had given the account number to first respondent  

and inferred that the said amounts might have been deposited towards rent.

21. Appellants have given satisfactory explanation. They submitted that  

the bank account was a non-functional and non-operated account at Vita and  

as no notice of deposit was given, they were unaware of the deposits. They  

submitted that Bank of Karad went into liquidation and they therefore did  

not even have any record of these payments. They argued that as the second  

respondent was looking after Laxmibai and as respondents were also looking  

after the premises, the respondents would have come to know about the bank  

account of the first appellant and that first respondent, being aware that one  

day or the other, the owners will take action to evict them, had deposited the  

said amounts to create some kind of evidence. It should also be noted that  

the respondents did not send any communication informing the appellants  

about the deposits to the first appellant. Nor did the challans showed that the  

deposits were being made towards rent. These factors when coupled with the  

following three circumstances show that the deposits were not bonafide: (i)  

There were no rent receipts from either Laxmibai or from the appellants; (ii)  

the respondents did not choose to send the rents by postal money orders; and  

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(iii)  there is no explanation as to non-deposit  of the alleged rents for the  

earlier  period.  These  receipts  cannot  be  relied  upon  to  support  the  

uncorroborated  oral  testimony  of  DW-1  (Sadhu)  that  the  same  were  

deposited towards rent.    

Re : Electoral Roll (Ex. 74) :

22. The Electoral Roll (Ex. 74) showed the respondents as husband and  

wife and they were staying in the premises No.289 in the year 1991. The  

appellate court held that Ex. 74 showed the respondents as the residents of  

premises No.289 in the year 1991 and if the second respondent was a mere  

licensee and if there was no marriage solemnized between her and the first  

respondent, the name of first respondent would not have been recorded as  

husband in Ex. 74. From this the first appellate court inferred that the second  

respondent was not a mere licensee and appellants had failed to prove that  

the first respondent was not the husband of the second respondent.

23. The Electoral  Roll  will  not  show whether a person is occupying a  

premises as a tenant or as a licencee. It may at best show that the person was  

residing in the premises. The fact that both respondents were residing in the  

premises  had  never  been  disputed.  If  they  represented  that  they  were  

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husband and wife,  the  electoral  roll  will  reflect  the same.  The inference  

drawn  by  the  first  appellate  court  from  the  electoral  roll,  that  second  

respondent was not a mere licencee, is totally illogical and unsustainable.

Re : Notices (Exs. 75 to 78)

24. The  first  appellate  court  found  that  notices  dated  9.10.1992  and  

15.6.1993 issued by the respondents were not replied by the appellants and  

draws an inference therefrom that the averments therein should be true. But  

by then the litigations were already pending. The petition for fixation of fair  

rent had been filed on 3.1.1992 (Application No.1/1992). A criminal case  

under section 24(4) of Rent Act had also been filed (Crl. Case No.6/1992).  

Thereafter,  in  1993,  suits  were  filed  by  the  second  defendant  in  RCS  

No.114/1993 and by the appellants  in  RCS No.278/1993. In view of the  

pending litigation, non issue of the replies to the notices cannot be treated as  

an admission of the averments in the notices.  

Re : Application for fixation of standard rent

25. The first respondent filed a petition for fixation of standard rent in the  

year 1992 wherein he had claimed to be the tenant. The first appellate court  

held that as this was not controverted, the allegations therein should be true.  

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The fact that the first respondent filed an application for determination of the  

standard rent is not disputed. But it is also not in dispute that the appellants  

filed a counter in the said proceedings wherein they clearly stated that the  

first respondent had no connection with the property and the premises was  

not given to him on rent or on any other understanding and that the first  

respondent was falsely claiming tenancy with the help of second respondent.  

It may be mentioned that the said petition for fixation of standard rent was  

not pursued by the first respondent and ultimately it was dismissed for non-

prosecution on the ground that the first respondent had failed to prosecute  

the matter  from 1998. Therefore,  filing of  the application for  fixation of  

standard rent does not assist the respondents in proving tenancy.

Conclusion

27. It is thus seen that none of the documents produced or relied upon by  

respondents evidenced tenancy or payment of rent. The documents no doubt  

established that respondents were in possession of a portion of the premises  

No.289, but that fact was never in dispute. It should be noted that though  

respondents submitted that they occupied the suit portions in 1982, they did  

not prove occupation of the suit portions from 1982. The first appellate court  

erroneously  held  that  the  appellants  had  failed  to  offer  satisfactory  

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explanation  regarding the documents  relied upon by the respondents  and  

held that therefore the suit should be dismissed. The first appellate court has  

not  recorded  any  finding  that  these  documents  produced  by  respondents  

established a tenancy. In fact as noticed above, there is no finding in the  

entire judgment that the respondents had proved that they were the tenants.  

The documents relied upon by respondents do not establish a tenancy. The  

trial  court  found  that  none  of  these  documents  established  tenancy.  The  

appellants had explained all documents relied upon by the respondents by  

demonstrating that they only prove occupation (which was not disputed) but  

not  tenancy. When there was nothing more to explain,  the first  appellate  

court  held  that  appellants  failed  to  explain  those  documents  and  

consequently failed to establish that respondents were licencees. The first  

appellate court inferred from documents which disclosed mere occupation of  

a portion of the house and documents which showed some payments which  

cannot be linked to rent, that appellants  failed to prove that the occupation  

by respondents was as gratuitous licensees. It did not however infer from the  

documents that there is a tenancy. The entire reasoning is therefore unsound.  

In spite of this legal lacunae, the High Court did not interfere on the ground  

that no question of law was involved. It failed to notice that the inferences  

and legal effect from proved facts is a question of law and the inferences  

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drawn by the first appellate court were wholly unwarranted. The fact that  

was proved was possession of suit portions which was not in dispute, but not  

tenancy in regard to the suit portions, which was in dispute. In the absence  

of any documentary evidence showing the tenancy or payment of rent, the  

evidence  of  PWs.1  and  2  is  more  trustworthy  and  probable  than  the  

uncorroborated interested evidence of DW1. (The evidence of DWs. 2 and 3  

does not have any bearing on the issue of tenancy claimed by respondents).  

We therefore find that the judgments of the first appellate court and the High  

Court are unsustainable and the finding of the trial court that respondents are  

gratuitous licencees was correct and justified.  

28. Therefore, we allow this appeal, set aside the judgment of the High  

Court and the first appellate court and restore the decree for possession of  

the suit portions granted by the trial court.   Parties to bear their respective  

costs.       

…………………………..J. (R.V. Raveendran)

New Delhi; ………………………..J. September 30, 2011. (A.K. Patnaik)

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