DNYANESHWAR RANGANATH BHANDARE & ANR.versusSADHU DADU SHETTIGAR (SHETTY) & ANR.

                [2011] 14 (ADDL.) S.C.R. 187


   DNYANESHWAR RANGANATH BHANDARE & ANR.                              A
                                v.
       SADHU DADU SHETTIGAR (SHETTY) & ANR.
          (Civil Appeal Nos. 8400-8401 of 2011)
                    SEPTEMBER 30, 2011
                                                                      B
      [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

     Constitution of India, 1950:

      Article 136 - Interference by Supreme Court - Suit for          c
possession of premises by landlord alleging that the
respondents were gratuitous licencees regarding one room
and unauthorized encroachers in respect of the second room,
decreed - Suit for permanent injunction by respondents that
they were tenants - Trial court held that respondents                 0
continued in occupation as licencee and not as tenant - First
appellate court holding that the appellants failed to prove that
the respondents were gratuitous licensees or that they had
encroached upon one room, decreed the suit for injunction
by the first respondent - High Court upheld the order in              E
second appeals - On appeal, held: Burden was on the
respondents to establish that they were tenants and not
licensees but the first appellate court wrongly placed the
burden upon the appellants - None of the documents
produced or relied upon by respondents evidenced tenancy
or payment of rent - First appellate court failed to record any       F
finding that respondents were tenants - 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 - High Court
did not interfere on the ground that no question of law was           G
involved - It failed to notice that the inferences and legal effect
from proved facts is a question of law and tfW inferences
drawn by the first appellate court were wholly unwarranted -
Thus, the judgment of the first appellate court and the High
                                 187                                  H
    188 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.


A Court are unsustainable and the findings of the trial court that
  respondents are gratuitous licencees was correct and justified
    -- Decree for possession of the suit portions granted by the
    trial court is restored.

         Article 136 - Jurisdiction under - Exercise of -
8
    Interference with findings of facts - When warranted - Stated.

         Appellant No. 1 and 2 are the sons of 'L'. It is the case
    of the appellants' that their mother was staying alone in
    the ~uit premises. In the year 1985, second respondent
C was engaged as a servant to look after 'L' and was
    allowed to reside in one of the room as a licensee without
    any rent. Next year 'L' died and second respondent was
    allowed to continue as a licencee for some time.
    However, she did not vacate the room and first
D respondent with whom second respondent was having
    a live-in relationship, forcibly occupied the other room
    and claimed himself to be tenant of the two rooms. First
    respondent filed a suit for permanent injunction asserting
    himself to be the tenant of the suit premises whereas the
E appellants filed suit for possession of the suit premises
    contenting that the respondents were gratuitous
    licencees regarding one room and unauthorized
    encroachers in respect of the second room. The trial
    court decreed both the suits holding that the appellants
F are the owners and they have established that second
    respondent was their licencee. Aggrieved, respondent
    No. 1 and 2 filed ar. appeal against the decree for
    possession and respondent no. t filed an appeal against
    the dismissal of his suit for injunction. The first appellate
G court holding that the appellants failed to prove that the
    respondents were gratuitous licensees or that they had
    encroached upon one room dismissed the suit for
  . possessiol1tby appellants and decreed the suit for
    injunction by the first respondent. The appellants filed
    second appeals. The High Court dismissed the same
H
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                 189
          DADU SHETTIGAR (SHETTY)
holding that the finding of fact by the lower appellate          A
court that the respondents were not gratuitous licensees
did not call for interference and no substantial question
of law arose for consideration. Therefore, the appellants
filed the instant appeals.
                                                                 B
    Allowing the appeal, the Court

      HELD: 1.1 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            C
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            D
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        E
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 appellant? In           F
this context the legal effect of proved facts and
documents is a question of law. In such cases, if the
circumstances so warranted, this court may interfere in
an appeal by special leave under Article 136. [Para 9]
[199~0-H]
                                                                 G
     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 - relied on.
                                                                 H
    190   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A        1.2 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
B 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 Rs.25/- per month as
   rent up to 1988 and thereafter at the rate of Rs.60/- per
c month. These issues were proper as it was evident from
   the pleadings that respondents we:-e 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 document
0 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
E 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. Admittedly there was no lease deed or
F 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
G 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
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                191
          DADU SHETTIGAR (SHETTY)

documents produced by the respondents which merely              A
showed their possession were wrongly interpreted to
hold that the appellants failed to prove that respondents
were gratuitous tenants. [Para 10] [200-B-H; 201-A]

     1.3 'L' was an old lady. The second appellant w.ho         8
was staying with his aged mother in 1985, was obviously
not able to look after her. In the beginning of 1986, he left
for place 'V' in connection with his employment. 'L' was
all alone from then till her death in November, 1986. The
evidence of first appellant (PW1) is to the effect that the     C
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 'L' died, second respondent sought permission            0
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        E
in cross-examination. There is nothing to disbelieve the
evidence of PW1 and PW2. [Para 12] [201-F-H; 202-A]

     1.4 None of the owners was staying at place 'V' and
according to appellants second respondent continued to          F
stay in a portion of said Premises 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.       G
There was no document evidencing the tenancy or
evidencing payment of any rent to the owners of the
property, 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      H
    192 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A of PW1 supported by the evidence of the neighbour
  (PW2), that 'L' was ailing and to look after her to look after
  the house, 'L' 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
B with her and neither of them had ever paid any rent to
  appellants or 'L'. [Para 14] [202-F-H; 203-A-B]

        1.5 The trial court considered the documentary
   evidence: Assessment Register extracts; Tax paid
C receipts; Bank cash deposit challan counter foils;
   Electoral roll for 1991; Notices through counsel dated
  9.10.1992 and 15.6.1993 with acknowledgments,
   produced by the respondents to establish that they were
   the tenants. The trial court held that the said documents
  established the claim of tenancy by the respondents and
D consequently, held that respondents failed to prove that
  they were in occupation of the premises from February
  1982 as tenants on a rent of Rs.25 per month from 1982
  and Rs.60 per month from 1988. The court however, held
  that there was no evidence to show that 'S' broke open
E 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, particularly as the appellants had
F 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
G 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 at place 'V'. In regard to
H remittances to the Bank, he found that stray remittances
  DNYANESHWAR RANGANATH BHANDARE v. SADHU              193
          DADU SHETIIGAR (SH ETTY)
of Rs.300, Rs.60 and Rs.300 did not prove that they were      A
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. [Para 15]       B
[203-C-H; 204-A-B]

     1.6 On the very same material (that is Assessment
Register extracts, tax paid receipts, bank cash deposit
challans, Electoral Roll and notices), the first appellate    C
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    D
to give a proper explanation in regard to the documents
produced by the respondents and therefore, their suit
should be dismissed. [Para 16] [204-C-D]
     1.7 None of the documents produced or relied upon        E
by respondents evidenced tenancy or payment of rent.
The documents no doubt established that respondents
were in possession of a portion of the said premises, but
that fact was never in dispute. It should be noted that
though respondents submitted that they occupied the           F
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 explanation regarding the documents relied
upon by the respondents and held that therefore, the suit     G
should be dismissed. The first appellate court did not
record any finding that these documentS produced by
respondents established a tenancy. In fact, there is .no
finding in the entire judgment that the respondents had
proved that they were the tenants. The documents relied       H
    194   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A 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
B 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
c 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.
0
   The entire reasoning is therefore, unsound. In spite of the
   said 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
E facts is a question of law and the inferences 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
F 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). Therefore, the judgments of the
G 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. The
  judgment of the High Court and the first appellate court
  is set aside and the decree for possession of the suit
H
   DNYANESHWAR RANGANATH BHANDARE v. SADHU                     195
           DADU SHETTIGAR (SHETIY)

portions granted by the trial court is restored. [Para 27 &           A
28) [208-G-H; 209-A-H; 210-A-B]

     Dhanna Mal vs. Rai Bahadur Lala Moti Sagar AIR 1927
P.C. 102; Gujarat Ginning & Manufacturing Co. Ltd. vs.
Motilal Hirabhai Spinning & Manuacturing Co. Ltd. AIR 1936
                                                                      8
PC 77 - referred to.
                       Case Law Reference:
     AIR 1927 PC 102             Referred to            Para 9
     AIR 1936 PC 77              Referred to            Para 9        c
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8400-8401 of 2011.

    From the Judgment and Order dated 07.10.2008 of the
                                                                      0
High Court of Bombay in SA No. 298 and 299 of 2008.

     Prasanth P. and T. Harish Kumar for the Appellants.

    Pravin Satale and Rajiv Shankar Dvivedi for the
•Respondents. ·                                                       E

     The Judgment of the Court was delivered by

     R.V. RAVEENDRAN, J. 1. Leave granted. Parties will be
ireferred by their ranks in the first matter arising from the suit
lfor possession in RCS No.278/1993.                                   F

      2. The case of appellants is as under : The appellants are
 'rothers and are the owners of premises No.289 (New No.424)
 3andhi Chowk, Vita (described in schedule 'A' to the plaint and
 ·eferred to as the 'said property'). Two rooms in the said           G
 )roperty, one measuring 1O' 6" x 22' and the other measuring
110' x 10' (described the schedules B and C to the plaint and
•ogether referred to as the "suit portions") are the subject matter
 >f the dispute. The said property originally belonged to
-~anganath Bhandare, who was living in the said property with         H
    196   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A 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
B 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
c   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
0
    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
E had a 'living-in-relationship', broke open the door of another
    room (1 O' x 1O') and occupied 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
F filed RCS No.278/1993 for possession of tha 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.
G
         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
H of '25 from February 1982; that the rent was increased to '60/
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                     197
  DADU SHETIIGAR (SHETTY) [RV. RAVEENDRAN, J.]

- per month from 1988; that the appellants illegally                 A
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    B
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 was in a dilapidated
condition and were threatening to evict them from the premises.
Therefore, the first respondent filed a suit for permanent           c
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 permanenfinjunction (RCS No.114/1993)
filed by first respondent was resisted by the first appellant. The   D
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.
                                                                     E
      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      F
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 Rs. 25 or that they were paying the
rent at the rate of Rs. 60/- per month from the year 1988. The
trial court also held that the second respondent was in              G
possession of the two rooms as a licencee with the permission
of Lakshmibai and had continued in occupation as gratuitous
licencee and was not a tenant; and that th.e first respondent had
not trespassed or forcibly occupied the second room but was
residing in the suit portions with the licensee (second
                                                                     H
    198    SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A 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
B 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
c 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.
D       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 appeals by its
E 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-8 & C portions was given to
F 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?

G      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
H injunction by the first respondent. It did not address itself or
 DNYANESHWAR RANGANATH BHANDARE v. SADHU                     199
 DADU SHETIIGAR (SHETIY) [R.V. RAVEENDRAN, J.]

decide whether respondents were tenants. It held that they had      A
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
                                                                    B
dismissed by the High Court by a 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 substan~ial question of law arose
for consideration. The said common judgment is under                C
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 app~al. But what D
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 E
discards material and relevant evidence, or is based on
surmises and conjectures; or if it bases its decision on wrong
inferences drapwn 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 F
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 appellant?
In this context we may remember that the legal effect of proved
facts and documents is a question of law. (See Dhanna Mal G
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 H
     200   SUPREME COURT REPORTS [2011] 14 (AODL.) S.C.R.


A   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
8
    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
C month as rent up to 1988 and thereafter at the rate of ' 601- 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
D that there was no 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
E 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
F 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
G 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
H documents produced by the respondents which merely showed
  DNYANESHWAR RANGANATHBHANDARE v. SADHU                     201
  DADU SHETTIGAR (SHETTY} [R.V. RAVEENDRAN, J.]

their possession were wrongly interpreted to hold that the          A
appellants failed to prove that respondents were gratuitous
tenants.

      11. The undisputed facts noted by the first appellate court
are : The appellants are the owners of the Premises No.289          8
(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      C
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 gro1:1nd floor and first floor. Two rooms described
in Schedules B & C to the plaint were in the possession of the      D
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.                                                           E

     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         F
then till her death in November, 1986. Seen in 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 py the evidence of the          G
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,        H
    202    SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.


A 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
8
  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
C 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 time in the year 1981 and
  that thereafter they shifted to the premises of appellants,
D 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
E 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
F 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
G 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
H payment of ariy rent, the trial court also placed the burden upon
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                    203
  DADU SHETTIGAR (SHETTY) [RV. RAVEENDRAN, J.]

the defendants to prove that they were residing in the premises     A
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 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          B
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 t)lat they       C
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               D
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 Rs. 25 per month from         E
 1982 and Rs. 60 per month from 1988. The court however held
that there was no evidence to show that Sadhu broke open the
lock of 1O' x 1O' 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      F
first respondent had forcioly occupied the premises, 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        G
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          H
    204   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.


A remittances to the Bank, he found that stray remittances of Rs.
  300, Rs. 60 and Rs. 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
B 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
C 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
D the appellants failed to give a proper explanation in regard to
  the documents produced by the respondents and therefore their
  suit should be dismissed. w_e may examine each of the
  conclusions purportedly recorded by the first appellate court
  with reference to documents.
E
    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
F 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
G 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
H that the amounts paid as taxes were paid by the first respondent
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                   205
  DADU SHETTIGAR (SHETTY) [RV. RAVl::ENDRAN, J.]

were from his personal funds. Further the case of the firs~        A
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 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               B
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)
                                                                   c
     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           D
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      E
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
                                                                  F
tenant of another portion of premises No.289 is not in dispute.
The fact that second respondent 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 po:1ion of the premises. G
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 H
        206    SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.


A 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
B he had deposited Rs. 300, Rs. 60 and Rs. '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
C 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 'Rs. 60/-; that as both the appellants were living outside Vita,
  the first respondent used to deposit rent in the bank account
  of the first appellant with Bank of Karad. The first appellate
D 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.

E            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
F       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
H       when coupled with the following three circumstances show that
  DNYANESHWAR RANGANATH BHANDARE v. SADHU 207
  DADU SHETTIGAR (SHETIY) [RV. RAVEENDRAN, J.]
the deposits were not bonafide: (i) There were no rent receipts     A
from either Laxmibai or from the appellants; (ii) the respondents
did not choose to send the rents by postal money orders; and
(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           B
(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 C
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 C
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.
                                                                  E
     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 husband
and wife, the electoral roll will reflect the same. The inference F
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)                                        G
     24. The first appellate court found that notices dated
9.1 Q.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   H
      208   SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.~.


A 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 ((;rl. 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
B 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

C .     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. The fact
  that the first respondent filed an application for determination
D 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
E 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
F matter from 1998. Therefore, filing of the application for fixation
  of standard rent does not assist the respondents in proving
  tenancy.

    Conclusion

G        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
H
  DNYANESHWAR RANGANATH BHANDARE v. SADHU                   209
  DADU SHETTIGAR (SHETTY) [R.V. RAVEENDRAN, J.]

 respondents submitted that they occupied the suit portions in A
 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 explanation regarding
the documents relied upon by the respondents and held that
 therefore the suit should be dismissed. The first appellate court B
 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 c
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 0
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 r·
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 F
from proved facts is a question of law and the inferences 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 G
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 H
    210    SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.


A   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
8
    decree for possession of the suit portions granted by the trial
    court. Parties to bear their respective costs.

    N.J.                                          Appeal allowed.