9911796707
TMI Blog2007 (5) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1. Several constructions were raised by it from time to time. 3. Respondent No. 3, however, entered into a development agreement with the managing partner of the appellant and other persons on 01.04.1986. A deed of partnership was executed on 21.04.1986. Disputes and differences having arisen between the partners, the same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms whereof a sum of Rs. 4,00,000/- was awarded in favour of Respondent No. 3. The said award was made the rule of court in terms of Section 14(2) of the Arbitration Act, 1940 by an order dated 29.02.1988. Allegedly, by reason of the said award, the appellant became the owner of the property. Respondent No. 1 was called upon to pay rents in respect of the suit property by a notice dated 22.11.1987. The tenancy was terminated by a notice dated 30.10.1988. On or about 08.12.1988, Respondent No. 1, in reply to the said notice, asked the appellant to furnish the particulars in regard to the ownership of the suit property. It, however, not claimed therein that it had acquired any ownership by reason of a purported oral gift made by Respondent No. 3 herein, as appears to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xi) The witnesses of the purported oral gift being DW-2, DW-3 and DW- 4, being the Chairman of the Respondent No.1-society, his P.A. and a Chartered Accountant and friend of DW-2 respectively, no reliance can be placed upon their evidence. xii) Plea of purported oral gift was made for the first time only in the written statement. xiii) No gift tax was paid in respect of the said purported gift either by Respondent No. 3 or by Respondent No.1. xiv) Had Respondent No. 1 any intention to make any gift, ordinarily it would have been presumed to do so in favour of the minority Muslim Societies. xv) No explanation had been offered by Respondent No. 1 as to why it paid rent upto October 1976. xvi) In none of the letters addressed by Respondent No. 1 to the University Grants Commission, Osmania University, Urban Land Ceiling Authority, Registrar of Cooperative Societies, Municipal Corporation of Hyderabad, the factum of the alleged deed of gift was disclosed. xvii) The purported reply sent to the notice marked as Ex. A4 had not been disclosed. xviii) For proving the oral gift Respondent No. 1 should have examined Respondent No.3. xix) Respondent No. 1 had not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Dave, learned Senior Counsel appearing on behalf of the appellant, would submit: i) The High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that Respondent No. 3 being admittedly the owner of the property, the burden lay on Respondent No. 1 who had alleged an oral gift was made in its favour, and it having failed to prove the same, assuming that Respondent No. 3 did not demand rent or did not take step therefor, Respondent No. 1 cannot be said to have proved its case. ii) The question of Respondent No. 1 acquiring any title by adverse possession would not arise, as at all material point of time, it was a tenant. 10. Mr. K. Parasaran, learned Senior Counsel appearing on behalf of Respondent No. 1, would, on the other hand, submit : i) The burden of proof lay heavily on Appellant to prove the oral gift was made by examining the donor i.e. Respondent No. 3 in the suit and in any event, as it was incumbent on him to examine himself inasmuch he having supported the case of the appellant must also be held to be plaintiff. ii) Although DW-2, one of the attestors of the oral gift in his cross- examination stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last 10 years" 13. As it was known to the said witness that Respondent No. 1 had not been paying rents even before the partnership deed was entered into, the appellant would be presumed to have no knowledge that Respondent No. 1 had been in possession of the property in assertion of his title by not paying rents. As Respondent No. 1 was in possession for a period of more than 12 years, it must be held to have acquired title by prescription. 14. Respondent No. 3 was admittedly the owner of the property. As his ownership had not been disputed, the burden was on Respondent No. 1 to prove his title. It has, as noticed hereinbefore, claimed title : (i) by reason of an oral gift; and (ii) by adverse possession. 15. The case that the oral gift was made on 01.10.1975 was specifically made out. The witnesses to the said oral gift were members of the Governing Council, his Personal Assistant and a Chartered Accountant, who admittedly was a friend of DW-2. 16. It is expected of a person who has obtained title by reason of an oral gift; Hiba although permissible in law, but a heavy burden lay on him to prove the same. Respondent No. 1 is an educational society. It was running an institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof: 20. The said decision has been noticed by this Court in subsequent decisions in Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204] and Citibank N.A. etc. v. Standard Chartered Bank and Others etc. [(2004) 1 SCC 12] 21. As the said letter has not been produced, the inference which could be drawn therefrom is that either DW-2 did not tell the truth that such a letter was written and/or an adverse inference could be drawn that had the said letter been produced, the same would have gone against the interest of Respondent No. 1. In making an oral gift by an owner of the property in favour of his tenant apart from it being wholly unlikely, actual delivery of possession is imperative. There is nothing on record to show that at any point of time, Respondent No. 3 had delivered the possession of the premises in question to Respondent No. 1. Respondent No. 1 being a tenant, continued to be a tenant. Its status as a lessee on its own showing merged into a higher status. At what point of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn. 28. It may be true that Respondent No. 3 herein should have examined himself and the learned Trial Judge committed a serious error in drawing an adverse inference in that behalf as against Respondent No. 1. It was, however, so done keeping in view the fact that Respondent No. 3 was evidently not interested in the property in view of the fact that it had suffered a decree. For all intent and purport, even if the submission of Mr. Parasaran is accepted that the appellant is claiming is claiming only by reason of an award, he has transferred the property in his favour. He received a valuable consideration in terms of the award. We are not concerned with the validity thereof. Non-examination of Respondent No. 3 indisputably would give rise to a presumption, as has been held by this Court in Sardar Gurbaksh Singh v. Gurdial Singh [AIR 1927 PC 23], Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bombay 97], and The Ramanathapuram Market Committee, Virudhunagar v. East India Corpn. Ltd., Madurai [AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any view of the matter. Sections 12 and 13 of the Bombay Rent Act co-exist and must be harmonized to effect the purpose and intent of the legislature for the purpose of eviction of the tenant. In that view of the matter Article 113 of the Limitation Act has no scope of application. Large number of authorities were cited. In the view we have taken on the construction of the provisions of Articles 67 and 66 of the Limitation Act and the nature of the cause of action in this case in the light of Sections 12 and 13 of the Bombay Rent Act, we are of the opinion that the period of limitation in this case would be 12 years. There is no dispute that if the period of limitation be 12 years, the suit was not barred." 32. The said decision has no application in the facts and circumstances of the present case as there is nothing to show that after the expiry of period envisaged in the lease and despite the fact that the respondent itself had been paying/tendering monthly rent, there had been final determination of the tenancy pursuant whereto the respondent was required to hand over the vacant possession to the landlord. Nothing has been brought on record to show that the landlord has served ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
