High Court

Legal Reasoning

{1} sa111.24.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.111 OF 2024Vishal Chandan Bharti and Others APPELLANTSVERSUSPravin Harishchandra Bharti RESPONDENT.......Mrs. Rutuja Jakhade h/f Mr. S. A. Kulkani, Advocate for appellants....... [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 12 th JUNE, 2024 ORDER :1.This second appeal is filed by original defendants, takingexception to the judgment and decree passed by learned CivilJudge, Junior Division, Shindkheda in Regular Civil Suit No. 52 of2014 dated 1st March, 2019 and the judgment and decree passedby learned District Judge-2, Dhule in Regular Civil Appeal No. 28of 2019 dated 30th March, 2024.2.Respondent – plaintiff filed the suit for possession of shed,on the basis of ownership and for mesne profit. It is the case ofthe plaintiff that property, described in paragraph No.2 of theplaint, comprising of a shed admeasuring 56 feet X 28 feet,situated in Gut No. 43/1 Mauje Salve, Taluka – Shindkheda,District – Dhule, is the suit property (hereinafter for brevity will {2} sa111.24.docbe referred as “suit shed”). Plaintiff claimed that he and thedefendants are relatives and are residing in the same village. Thesuit shed was used by workers for keeping agriculturalequipments and it was also used as cow shed. When plaintiff wasworking in Ahinsa Polytechnic College at Dondaicha, he hadapplied for permission to start hotel in the suit shed, however,since the property had no NA permission, permission to starthotel there was refused.Since defendant was having business of crains and diggingwell and he was running hotel in the name “Shri Sai Baba kaDhaba” he requested plaintiff to let out the suit shed for keepingmaterial. Plaintiff acceded to the request of defendant. Plaintiffgot knowledge that defendants are trying to start hotel businessin the suit shed, without his permission and they were makingpreparations for the same. On inquiry by plaintiff, defendantsreplied that the suit shed is the proper place to start hotelbusiness and they will pay Rs.12,000/- per month towards rent.Thereafter, without permission of plaintiff, defendants startedtheir hotel business in the month of July, 2012, however they didnot pay the agreed rent to plaintiff. Plaintiff, therefore, issuednotice dated 19th May, 2014 and claimed back possession of suitshed. By reply dated 3rd June, 2014, defendants replied that theyhave started hotel business in partnership with plaintiff and they {3} sa111.24.dochave invested Rs.8 to 10 lakh for electricity connection, tables,furniture, levelling of ground etc. and till November, 2012, theyhave paid Rs.1500/- towards rent. Plaintiff, therefore, filed suit forvacant possession of suit shed and for mesne profit. 3.Defendants No.1 to 3 appeared and filed their writtenstatement, contending that alleged transactions of plaintiff iswith defendants No.1 and 2 and defendant No.3 has no concernwith the same. They denied all the contentions of plaintiff. Theyclaimed that since defendant No.1 was having experience ofhotel business, in the year 2011 plaintiff requested defendantNo.1 to start hotel business in the suit shed. Since plaintiff wasnot having sufficient funds, defendant No.1 invested Rs.8 to 10lakh for development of the shed, to run hotel business thereand thereafter hotel Bharti was started there. Defendant No.1helped plaintiff for getting license of hotel from the concernedauthorities. Since land was in the name of plaintiff, defendantNo.1 deposited Rs.500/- in the name of plaintiff towards licensefees on 23rd July, 2012. They further contended that as there waschange in circumstances and the hotel business was not runningwell, plaintiff requested defendant No.1 to handle said businesstill he recovers the amount invested by him and requested him topay Rs.1,500/- per month towards rent of suit shed. Accordingly,defendant No.1 started paying rent to plaintiff from November, {4} sa111.24.doc2012, but plaintiff never issued any receipt. Rent was paid till 1stApril, 2014 and, there was no default. With a view to extractmore rent from defendant No.1 and to avoid paying amountinvested by defendant No.1, false suit is filed.4.Trial Court, after recording evidence, decreed the suit anddirected defendants No.1 to 3 to hand over vacant possession ofthe suit shed to plaintiff within one month. Plaintiff was also heldentitled to get mesne profit from the date of passing of thejudgment and decree till receiving the actual possession of thesuit shed. Defendants unsuccessfully challenged judgment anddecree passed by Trial Court, in Regular Civil Appeal No. 28 of2019, hence the present second appeal.5.Heard learned advocate for appellants. Perused thedocuments placed on record.6.Documents on record indicate that it is not in dispute thatthe suit shed and the agricultural land on which it stands,belongs to plaintiff, which was purchased by him from one VeduRajdhar Badgujar. Admittedly, the suit shed is in possession ofdefendants. According to plaintiff, he had gratuitously given thesuit shed to defendants to keep articles.7.There is no material on record, except oral evidence of DW- {5} sa111.24.doc1 Vishal Bharati, DW-2 – Rajendra Pardeshi, DW-3 Vijay Thakurand DW-4 Atul Bharati, to show that hotel was being run bydefendant No.1, in partnership with plaintiff. In their cross-examination, they have admitted that neither there is anywritten partnership deed executed between plaintiff anddefendants nor they have witnessed any business transactionbetween them. Contention of defendant No.1 that he was payingRs.1500/- rent to plaintiff, runs counter to the partnership theorypropounded by defendants. Defendant No.1 has failed to provethe fact that the suit shed was let out to him on monthly rent ofRs.1,500/-In cross examination, defendant No.1 has admitted that hehas no documentary proof to show that Rs.8 to 10 lakh expenseswere incurred by him for development of hotel. No evidence,whatsoever is led by defendant No.1 in support of the saidcontention. 8.Though defendant No.1 claimed that he was running hotel,as on the date of his deposition, the said fact was denied byplaintiff. Plaintiff filed photographs (Articles A to F), which wereconfronted to defendant No.1 during his cross-examination anddefendant No.1 admitted that all the photographs are of the suitshed. The photographs reveal that the suit shed is in dilapidated {6} sa111.24.doccondition and the same is not in use. No tables, chairs or counteris seen in the suit shed. Even public access is not seen to the suitshed. It is, therefore, not possible to accept that defendant No.1was running hotel business in the suit shed.9.In the light of aforestated evidence, Trial Court has rightlyheld that :“the suit shed belongs to plaintiff and the defendant No.01 has failed to showthat, he has incurred huge expenses over it. Therefore, the plaintiff being theowner of the suit shed is entitled for the vacant possession from the defendants.… It is evident that, the defendants are not using the suit shed and they have notreturned the possession of suit shed, even after they received notice (Exh. N.21)issued by plaintiff. On the contrary, they replied with reply notice (Exh. No.22).This shows that defendants have deliberately withhold the possession of suit shedwithout any sufficient cause.”The Trial Court, therefore, has rightly held that plaintiff isentitled for possession of the suit shed, along with mesne profit. 10.Appellate Court has confirmed the judgment and decreepassed by Trial Court, by assigning proper reasons.11.There is no illegality or perversity in the impugnedjudgments and decrees. Concurrent findings of facts are notliable to be interfered with in the present appeal, as nosubstantial question of law is involved in this appeal. SecondAppeal being devoid of merit, is dismissed with no order as tocosts. [NITIN B. SURYAWANSHI]JUDGE drp/sa111.24.doc