TUKARAM NARAYAN GAIKWAD Vs. PANDURANG RAMCHANDRA JOG

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 13.7.1983 passed by the District Judge, Pune in Civil Appeal No.442/1982. That Appeal was filed by the present petitioners, challenging the order dated 21.1.1982, dismissing the suit filed by the petitioners. The petitioners had filed Civil Suit No.1079 of 1979, seeking a declaration that they are tenants of two rooms tenement in House No.122/1, at Balwantashram, Chiplunkar Road, Pune - 4. It was their claim that originally their father Narayan was the tenant of the suit premises and after his death they became the tenants of the suit premises. They filed a suit for the said declaration and they also sought injunction, restraining the landlords from evicting them from the suit premises. The Trial Court recorded finding against the tenants, holding that Narayan was a domestic servant and was not a tenant of the suit premises and dismissed the suit. The finding of the Trial Court was confirmed by the Appellate Court in the Appeal filed by the petitioners and the Appeal was dismissed. In the present petition, these two orders of the courts below are challenged.

(2.) SHRI Mandlik, the learned counsel for the petitioners urged before me that the petitioners have relied on the two public documents to establish that they were occupying the suit premises as tenants. An extract from the assessment register, maintained by the Pune Municipal Corporation relating to the year 1975, which showed that the suit premises were occupied by the father of the petitioners, namely, Narayan on the monthly rent of Rs.20/- and the licence issued under the Bombay Shop Act in favour of the father of the plaintiffs who was carrying on the business of ironing clothes in the suit premises. In the submission of Shri Mandlik, the courts below refused to rely on both these documents for the reasons which are not tenable in law. In so far as the entry in the assessment register, maintained by the Municipal Corporation is concerned, that entry has been discarded by the Trial Court because the employee of the Corporation, who produced that register before the Court to prove an extract of the entry filed by the plaintiff, was not in a position to state the name of the officer who has signed the entry and the procedure followed by the officer before taking that entry. In my opinion the reasons given by the Trial Court for discarding the entry in the assessment register are not proper. The procedure that is to be followed for preparing the assessment register is laid down by law and therefore, failure of an employee of the Corporation to describe the procedure that is followed before taking entry in the assessment register is irrelevant. Similarly, if the entry was of the year 1975 and the suit was filed in the year 1979 and the witness was being examined some time thereafter, the employee concerned is not likely to identify the signature of the officer who signed below the entry. The fact remains that, that was the entry made by the local authority in the regular course of its business and therefore, the moment that entry was proved a presumption was raised and now the burden was on the respondent landlord to rebutt that presumption. Now it is clear that the approach adopted by the Trial Court in discarding the entry in the assessment register is wrong. Similarly, so far as the licence issued by the Corporation to the father of the petitioner is concerned, that licence has been discarded by the Appellate Court because the plaintiffs have not produced account books. Now I fail to understand what account a man doing the business of ironing clothes in a small room will maintain. In my opinion, therefore, the approach adopted by the Appellate Court in discarding this material, is not proper. In my opinion, the basic approach of the courts below in appreciating the material evidence on the record was wrong. In the present case, it was undisputed that the plaintiffs-petitioners are occupying the suit premises for the said business. It was the case of the landlord that the Petitioners are not tenant and the premises were given to their father as he was domestic servant and therefore, it was for the landlord to prove that Narayan was a domestic servant and in that capacity the room was given to him. I do not find any material produced by the landlord in this regard. In my opinion, entry in the assessment register together with the licence issued in the name of the father of the plaintiffs clearly indicated that the plaintiffs were occupying the suit premises as tenant.

(3.) WHICH is occupied by the plaintiffs. By this order the respondents are also restrained from disturbing the possession of the petitioners otherwise than in accordance with law. Rule is made absolute accordingly with no order as to costs.