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As second respondent had looked after their mother and their property, the appellants agreed for her continuing as licencee for some time. She did not however vacate=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 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 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 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= 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 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 appellate court and the High Court are unsustainable and the finding of the trial court that respondents are gratuitous licencees was correct and justified.

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 1

 Reportable 

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NOS. 8400-8401 OF 2011

 [Arising out of SLP (C) Nos. 6095-6096/2009]

Dnyaneshwar Ranganath Bhandare & Anr. ... Appellants

Vs.

Sadhu Dadu Shettigar (Shetty) & Anr. ... Respondents

 J U D G M E N T

R.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.

2. 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'). 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 

 2

and together referred to as the "suit portions") are the subject matter of the 

dispute. 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. 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 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 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 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 had a `living-in-

relationship', broke open the door of another room (10' x 10') and occupied 

 3

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 filed RCS No.278/1993 for 

possession of the 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.

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 of `25 from February 1982; that the rent was increased to `60/- 

per month from 1988; that the appellants illegally 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 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 

 4

was in a dilapidated condition and were threatening to evict them from the 

premises. 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. 

4. The suit for permanent injunction (RCS No.114/1993) filed by first 

respondent was resisted by the first appellant. 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.

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 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. The trial court also held that the second respondent was 

in possession of the two rooms as a licencee with the permission of 

 5

Lakshmibai and had continued in occupation as gratuitous licencee and was 

not a tenant; and that the first respondent had not trespassed or forcibly 

occupied the second room but was residing in the suit portions with the 

licensee (second 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 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 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.

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 

 6

appeals by its 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-B 

& C portions was given to 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? 

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 injunction by the first 

respondent. It did not address itself or decide whether respondents were 

tenants. It held that they had 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 dismissed by the High Court by a 

 7

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 substantial question of law arose for 

consideration. The said common judgment is under 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 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 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 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 

 8

appellant? In this context we may remember that the legal effect of proved 

facts and documents is a question of law. (See 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]. In such cases, if the circumstances so warranted, this 

court may interfere in an appeal by special leave under Article 136. Let 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 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 month as rent up to 1988 and 

thereafter at the rate of ` 60/- 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 that there was no 

 9

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 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 

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 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 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. 

 10

11. The undisputed facts noted by the first appellate court are : The 

appellants are the owners of the Premises No.289 (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 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 ground floor and first floor. Two rooms described in 

Schedules B & C to the plaint were in the possession of the 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. 

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 then till her death in November, 1986. Seen in 

 11

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 by the evidence of the 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, 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 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 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 

 12

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. 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 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 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 

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 payment of any rent, 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 of PW1 supported by the evidence of 

the neighbour (S.B.Bhandare) (PW2), that Laxmibai was ailing and to look 

 13

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 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 that they 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 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 `25 per month from 1982 and 

`60 per month from 1988. The court however held that there was no 

evidence to show that Sadhu broke open 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, 

 14

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 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 remittances to the Bank, he found that 

stray remittances of `300, `60 and `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 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 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 to give a proper 

 15

explanation in regard to the documents produced by the respondents and 

therefore their suit should be dismissed. We may examine each of the 

conclusions purportedly recorded by the first appellate court with reference 

to documents.

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 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 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 that the amounts paid as taxes 

were paid by the first respondent were from his personal funds. Further the 

case of the first 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 

 16

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 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)

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 

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 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 tenant of another 

portion of premises No.289 is not in dispute. The fact that second respondent 

 17

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 portion of the premises. 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 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 he had deposited 

`300, `60 and `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 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 ` 60/-; that as both the appellants were 

living outside Vita, the first respondent used to deposit rent in the bank 

 18

account of the first appellant with Bank of Karad. The first appellate 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.

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 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 when coupled with the 

following three circumstances show that the deposits were not bonafide: (i) 

There were no rent receipts from either Laxmibai or from the appellants; (ii) 

the respondents did not choose to send the rents by postal money orders; and 

 19

(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 (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 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 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.

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 

 20

husband and wife, the electoral roll will reflect the same. The inference 

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)

24. The first appellate court found that notices dated 9.10.1992 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 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 (Crl. 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 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

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. 

 21

The fact that the first respondent filed an application for determination 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 

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 matter from 1998. Therefore, filing of the application for fixation of 

standard rent does not assist the respondents in proving tenancy.

Conclusion

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 

respondents submitted that they occupied the 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 

 22

explanation regarding the documents relied upon by the respondents and 

held that therefore the suit should be dismissed. The first appellate court 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 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 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 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 from proved facts is a question of law and the inferences 

 23

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 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 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 decree for possession of 

the suit portions granted by the trial court. Parties to bear their respective 

costs. 

 ................................J.

 (R.V. Raveendran)

New Delhi; .............................J.September 30, 2011. (A.K. Patnaik)

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