The trial companyrt 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 number staying in Vita.
In regard to remittances to the Bank, he found that stray remittances of 300, 60 and 300 did number prove that they were paid towards the rent, or that the said payments were made with the knowledge and companysent of the appellants.
64 to Ex.
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 said companymon judgment is under challenge in these appeals by special leave.
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 numberdocument evidencing tenancy lease or payment of rent.
DW3 also admitted that he did number have any personal knowledge about the solemnization of marriage of second respondent with first respondent.
In appeals filed by the respondents, the companyrt 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 companysequently dismissed the suit for possession filed by the appellants.
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.
In these circumstances, the appellants filed RCS No.278/1993 for possession of the suit portions, companytending that respondents were gratuitous licencees regarding one room and unauthorized encroachers in respect of second room.
74 e Notices through companynsel dated 9.10.1992 and 15.6.1993 Ex.
After the death of Ranganath Bhandare, the daughter got married in 1984 and started living separately.
ii Whether the suit property B C portions was given to Chhaya as a gratuitous licensee in since 1986?
As the trial companyrt has granted a decree for possession simultaneously, the decree in RCS No.114/1993 was academic.
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.
The appellants were required to prove whether the suit portions were given to second respondent as a gratuitous licensee.
63, Exs.
Both suits were tried together.
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.
Whether the possession of schedules B C properties by Sadhu is referable to any legal right?
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.
75 Ex.77 with acknowledgments Ex.
The undisputed facts numbered by the first appellate companyrt are The appellants are the owners of the Premises No.289 Schedule A property , Gandhi Chowk, Vita.
The trail companyrt also directed a separate enquiry regarding damages and mesne profits.
As numbericed above, admittedly there was numberlease deed or tenancy agreement to evidence the tenancy number were there any receipts for payment of any rent.
The suit for permanent injunction RCS No.114/1993 filed by first respondent was resisted by the first appellant.
In November 1986, Laxmibai died.
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 companyroborated by a neighbour PW2 .
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.
Appellant No.1 was away at Pune in companynection with his employment.
Appellants mother Laxmibai who was staying alone, died in November, 1986.
The first appellate companyrt District Court, Sangli allowed both appeals by its companymon judgment dated 13.12.2007.
There was numberlease deed or tenancy agreement evidencing tenancy, number were any receipts to show payment of any rent.
None of the owners was staying at Vita and according to appellants second respondent companytinued 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.
Property bearing No.289 companysists of a ground floor and first floor.
Appellant No.2 got married in 1985 and shifted to Sangli in companynection with his employment in the beginning of 1986.
It is in this background, that the evidence was required to be examined.
The first appellate companyrt formulated the following five questions for companysideration i Whether defendants in RCS No.278/93 are in unauthorized and illegal possession by making an encroachment in suit property?
The trial companyrt held that the appellants are the owners and they have established that second respondent first defendant was their licencee.
The suit property earlier belonged to Ranganath Bhandare father of appellants who died in the year 1979.
It did number address itself or decide whether respondents were tenants.
Dnyaneshwar the first appellant was employed in Pune and was away from Vita for several years.
The entire evidence was analysed in detail by the trial companyrt, 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.
iv Whether the possession of Sadhu was illegally obstructed by the owners?
v What relief?
As the claim for tenancy was rejected, but as respondents were in occupation of two rooms, the trial companyrt decreed RCS No.114/1993 filed by first respondent in part, and directed that the appellants shall number evict the first respondent otherwise than in accordance with law.
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.
Admittedly, there was numberlease deed or tenancy agreement between the parties.
However all the companyrts 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 companyple.
Two rooms described in Schedules B C to the plaint were in the possession of the second respondent Chhaya and the first respondent Sadhu.
76 Ex.78 .
Further one of the witnesses of respondents S.Thakale DW3 gave evidence that second respondent and first respondent were his tenants in the year 1980 and that they got married some 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.
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 .
The first appellate companyrt failed to record any finding that the respondents were the tenants.
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.
The trial companyrt after exhaustive companysideration 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.
According to the respondents they were a married companyple.
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.
Thus appellants mother Laxmibai who was aged and suffering from several companyplaints was staying alone in the said property from the middle of 1986.
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 and together referred to as the suit portions are the subject matter of the dispute.
66 d Electoral roll for 1991 Ex.
62 b Tax paid receipts Ex.
In the circumstances, the burden was on the occupants respondents to establish that they were tenants and number licensees.
The second appellant who was staying with his aged mother in 1985, was obviously number able to look after her.
The first appellate companyrt answered the first two points in the negative and the third and fourth in the affirmative.
The first appellate companyrt 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.
Whether they were a married companyple or whether they were merely living together, is number very relevant for the decision in this case, as the fact that both were living in the schedule portion was number disputed.
Two suits were tried together.
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.
But the first appellate companyrt chose to wrongly place the burden upon the appellants.
She did number however vacate.
It held that they had paid some amounts and appellants had failed to explain the said payments.
67 to 72 c Bank cash deposit challan companynter foils Ex.
As second respondent had looked after their mother and their property, the appellants agreed for her companytinuing as licencee for some time.
Taking advantage of the fact that the owners were number 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 it.
Laxmibai was an old lady.
The trial companyrt decreed both the suits by a companymon judgment dated 17.7.2002.
In both the suits suit for possession filed by the appellants, and suit for permanent injunction filed by the first respondent , the trial companyrt framed issues placing the burden on both the plaintiff and defendants.
The second appeals filed by the appellants challenging the judgment and decree of the first appellate companyrt were dismissed by the High Court by a short companymon order dated 7.10.2008 holding that the finding of fact by the lower appellate companyrt that the respondents were number gratuitous licensees did number call for interference and numbersubstantial question of law arose for companysideration.
Mukund, the second appellant got married in 1985 and left Vita and shifted to Sangli in the first half of 1986.
The trial companyrt held that numbere of the above documents established the claim of tenancy by the respondents and companysequently, 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.
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.
