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Fashion Linkers & Others v/s Mrs. Savitri Devi & Another

    RFA (OS) 3 of 2002 & Crl. M. No. 256 of 2003

    Decided On, 18 August 2006

    At, High Court of Delhi

    By, THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA & THE HONOURABLE MS. JUSTICE HIMA KOHLI

    For the Appellants: J.K. Seth, Sr. Adv. with S.P. Pandey, Ms. Arunima Dwivedi, Advocates. For the Respondents: S.N. Gupta, Advocate & In person.



Judgment Text

Hima Kohli, J.

1. This is a Regular First Appeal filed against the judgment and decree dated 20.12.2001, passed by the learned Single Judge in suit No.1590/1988, whereunder, the learned Single Judge has decreed the suit of the respondent herein (the plaintiff in the suit) for possession of the property bearing No. A-51/1 Phase-I, Naraina Industrial Area, New Delhi (hereinafter referred to as ‘the suit premises’). A decree for recovery of a sum of Rs.1,83,600/- with costs and interest @ 12% per annum on the principal amount till final payment, with effect from the date of instituting the suit till final order has also been passed by the learned Single Judge in favour of the respondent/plaintiff against the appellant/defendants.

2. The facts giving rise to the present appeal are briefly stated hereunder:

Smt. Savitri Devi, respondent No. 1 herein, filed a suit for recovery of Rs. 7,99,500/-, for possession of the suit premises and also for permanent and mandatory injunction. Late Shri Gian Chand, husband of the respondent No. 1, was carrying on the business of running a printing press at premises No. 5397, Arya Samaj Road, Karol Bagh, New Delhi under the name and style M/s. Kisoo Mal Gian Chand. Late Shri Gian Chand was also the owner of the suit premises situated on a plot of land measuring 468 sq. yards comprising a ground floor, mezzanine floor and a first floor. He expired on 18.12.1977 leaving behind his wife, Smt. Savitri Devi, respondent No.1, an unmarried daughter, namely, Ms. Suman Arora and a son, Shri Girish. He had executed a Will dated 13.12.1977 whereunder he had bequeathed property in favour of his wife, respondent No.1 as the absolute owner, and the said property was also mutated in her name.

3. It is averred in the plaint that Shri Gian Chand was approached by late Shri Mahender Pratap Makkar in August, 1977 for permission to jointly use part of the suit premises as a licensee and that the licence fee was settled @ Rs. 5,100/- per month and a cheque dated 10th August, 1977 for the said amount was issued in favour of M/s. Kisoo Mal Gian Chand. It is further averred that on the basis of the permission granted, the predecessor-in-interest of the appellants became a licensee in part of the suit premises, while late Shri Gian Chand retained a hall and two rooms of the said premises with him. It is also stated that the machinery belonging to late Shri Gian Chand had been installed in the suit premises and that the first floor thereof remained in his exclusive possession.

4. It is further alleged that upon the death of Shri Gian Chand, the predecessors-in-interest of the appellant, Smt. Asha Makkar and her husband Shri Mahender Pratap Makkar tried to take advantage of the situation by taking possession of the remaining part of the premises and even misappropriated the machinery of the respondents/plaintiffs that was lying there. This resulted in a complaint lodged by the respondent No. 1 against the appellants at the Police Station Naraina on 13.2.1980 and was followed by two suits filed by the appellants against respondent No. 1, one being a suit for injunction which was ultimately dismissed for want of evidence, and the second being an inter-pleader suit raising certain disputes and alleging that the appellant No.1 was a tenant in the suit premises. After the respondent No.1 served a legal notice on the appellants on 6.5.1988, revoking their licence and calling upon them, amongst others, to vacate the premises and hand over possession thereof, she instituted the suit out of which the present appeal has arisen.

5. The appellants filed their written statements and took up a plea that there was a relationship of landlord and tenant between the respondent No. 1 and the appellants with respect to the suit property and consequently, the civil suit, as instituted by the respondent No. 1, was barred under the provisions of Section 50 of the Delhi Rent Control Act, 1958. It is alleged that late Shri Gian Chand had in fact let out the suit property to the appellant No. 1 on 10.8.1977 at the monthly rent of Rs. 2,000/- and since then, the appellants were in exclusive and peaceful possession of the suit premises. It is denied that there was any joint user of part of the premises by the appellants at a monthly license fee of Rs. 5,100/-.

6. The appellants placed reliance on a receipt dated 10.8.1977 (Ex. DW-1/1) stated to have been issued by late Shri Gian Chand in favour of Smt. Asha Makkar, partner of appellant No. 1, claiming the same to contain the consent of late Shri Gian Chand to give on tenancy the suit premises at the rate of Rs. 2,000/- per month to the appellant No. 1. It was also averred that the machinery belonging to late Shri Gian Chand and lying in the suit premises was junk and that though the respondent No.1 promised to remove the same but had not done so.

7. In the replication, the respondent No. 1 reiterated her stand that the status of the appellants was not of a tenant, but of a licensee, which also stood revoked subsequently and that late Sh. Gian Chand had taken the suit premises for shifting his printing press business there; that the machinery was in fact installed in the suit premises and upon the demise of Sh. Gian Chand, the appellants attempted to illegally take over such portion of the suit premises from the plaintiff, which was not even licensed to them and from where, in fact, work was being carried out by respondent No. 1.

8. After completion of pleadings, vide order dated 28th May, 1999, the learned Single Judge framed 15 issues which are as under:

1. Whether the defendant Nos. 1 to 3 are tenant of the property in question. If so its effect?

2. Whether in view of the judgment in suit No. 304/78, can the defendants raise the plea of tenancy? If so its effect?

3. Whether the suit is barred by time as pleaded in para 6 of the preliminary objection in the written statement of defendants 1 to 3?

4. If issue Nos. 1 and 2 are proved, then has this Court no jurisdiction?

5. Whether the suit is liable to be stayed pending the decision in probate case No. 104 of 1978?

6. Whether the Will dated 13.12.1977 is the last Will and testimony of the deceased Gian Chand? And whether the registered Will dated 19.7.1975 stood revoked consequently?

7. Whether defendant No. 5 has acquired any property right in the property in question after the death of Gian Chand on the basis dated 19.7.1975?

8. Whether defendant No. 5 is entitled to receive the rent/licence fee on the ground of the Will dated 19.7.1975?

9. Whether defendant No. 5 is entitled to receive the mesne profit and damages from defendants 1 to 3 on the basis of the Will dated 13.12.1977?

10. Whether the plaintiff is entitled to recover the suit amount from defendants 1 to 3? If so from which date?

11. Whether the plaintiff is entitled to a decree for permanent injunction as claimed?

12. Whether the plaintiff is entitled to recover to Rs. 1500/- per month as pleaded against defendant No. 4?

13. To what rate of interest the plaintiff is entitled to?

14. Whether defendant Nos.1 to 3 are estopped from denying the title of the plaintiff without first surrendering the possession of the suit premises? If so its effect?

15. Relief.

9. It is pertinent to state that issue Nos. 5, 6, 7, 8, 9 and 14 were decided by the learned Single Judge against the appellants. However, it was submitted by the appellants before us that the findings on the said issues are not being challenged by them in the present appeal. Similarly, the issue No. 2 which was decided in favour of the appellants, was not contested by the Counsel for the respondent No. 1. Hence, as agreed upon by the parties, the decision in the present appeal is rendered confined to the findings of the learned Single Judge with respect to issue Nos. 1, 4 and 11 above, which are inter-connected issues.

10. In support of her case, the respondent No. 1/plaintiff examined herself as PW-1, her daughter Ms. Suman Arora as PW-2, Shri Rakesh Vaid as PW-3 and Shri N.S. Deswal as PW-4. The evidence of PW-3 is not material as the said witness was a witness to the Will of late Shri Gian Chand, which controversy is no longer in issue. The statement of Shri V.K. Khanna, Sr. Scientific Officer, CFSL as PW-5 is relevant as the purported receipt dated 10.8.1977 (Ex. DW-1/1) relied upon by appellant No. 1, has been examined by the said witness and found not to be a genuine document.

11. In support of their case, the defendants examined appellant No. 2, Shri Rajiv Makkar (son of late Shri Mahender Pratap Makkar who appeared as DW-1, Shri S.C. Chopra as DW-2 and Shri Arvind Mehta as DW-3. Ms. R.K. Vij, a handwriting expert was examined as DW-4 in relation to the opinion given by her with respect to the receipt dated 10.8.1977 (Ex. DW1/1).

12. The main thrust of the arguments addressed by the learned Senior Advocate, Shri J.K. Seth, on behalf of the appellants was that the learned Single Judge erred in disbelieving the trustworthiness of the evidence produced on behalf of the appellants and failed to appreciate that the respondent No. 1/plaintiff was unable to impeach the credibility of their witnesses. It was also argued that there was no reason for the learned Single Judge to throw out the evidence of the defendants in respect of the receipt (Ex. DW-1/1) and to disbelieve their handwriting expert merely in the light of the CFSL report submitted by DW-5.

13. It was also argued by the appellants that the relationship of respondent No.1 and the appellants was that of landlord-tenant and not of a licensor and licensee and that assuming but without admitting the receipt (Ex. DW-1/1) purportedly issued by late Shri Gian Chand is ignored, the surrounding circumstances ought to have been taken into consideration by the learned Single Judge which clearly established that Section 52 of the Transfer and Property Act was not applicable to the facts of the case and that the suit premises was in fact exclusively leased out to the appellants. It was stated that there was no plea of joint user taken by respondent No. 1/plaintiff in the plaint, and that the evidence of PW-2 to the said effect was beyond the pleadings and ought not to have been considered by the learned Single Judge. Similarly, the statement of PW-2 that the plaintiffs were carrying on joint business from the suit premises, was also claimed by the appellant to be beyond the pleadings and it was asserted that no evidence, documentary or oral was produced by the respondent No. 1/plaintiff to substantiate the said claim, whereas the appellants had produced cogent oral and documentary evidence in support of their case which was overlooked by the learned Single Judge. It was also submitted that the learned Single Judge failed to take into consideration the fact that respondent No. 1 never paid house tax, electricity bills or water bills in respect of the suit premises which went to show that not only were the appellants carrying on business in the suit premises, but that they were in exclusive possession thereof. The final leg of the arguments of the appellant was that the burden of proof to establish her case was on respondent No. 1/plaintiff which she failed to discharge and that the onus could not have been shifted to the appellants/defendants, as has been done in the impugned judgment.

14. It is, therefore, the case of the appellants that the learned Single Judge failed to correctly weigh the evidence of both the parties and appreciate the infirmities in the evidence produced by the respondents/plaintiffs, which was given undue weightage, while rejecting that of the appellants.

15. In reply to the aforementioned arguments, Sh. S.N. Gupta, the learned Counsel for the respondent No. 1 stated that the contention of the appellants that respondent No. 1/plaintiff raised no plea in the plaint to the effect that the suit premises was in joint user and not in exclusive possession of the appellants, is not borne out from the records and, particularly, from a perusal of the plaint itself. It was submitted that the said pleas and the plea that the business of M/s. Kisoo Mal Gian Chand was continued to be carried on from the suit premises during the life- time and even after the death of Shri Gian Chand, were also further elaborated by respondent No. 1/plaintiff in the replication to the written statement.

16. In response to the arguments of the appellants that they were tenants in the suit premises at the rate of Rs. 2,000/- per month and that an amount of Rs. 5,100/- was paid by them to late Shri Gian Chand as an auspicious amount, it was stated that no such plea had been taken by the appellants in their written statement, nor did the appellants produce any evidence on the record by way of books of accounts, etc. to show payment of Rs. 2,000/- by cheque to Sh. Gian Chand so as to establish that the rent of the suit premises was Rs. 2,000/- and that the said amount had in fact been paid to the respondents. It was submitted that in the absence of the said material evidence, the learned Single Judge rightly drew an adverse inference against the appellants. It was also submitted by the learned Counsel for the respondent No. 1 that the learned Single Judge rightly arrived at the conclusion that mere payment of some amounts to the MCD under the demand notice, cannot be taken to be payment of rent unless and until the appellants/defendants could have established that there was any intention to create a tenancy on the part of the parties, which, according to the respondent No. 1, the appellants failed to establish.

17. We have heard the learned Counsel appearing for the parties at length. We have been taken through not only the impugned judgment dated 20th December, 2001, but also the entire suit record including the pleadings, the evidence adduced by both the parties, the documents filed on record, particularly, the receipt dated 10.8.1977 and the opinion of the handwriting experts in the said context. We have also considered the written arguments submitted by both the parties.

18. Much emphasis has been laid by the appellants on the receipt dated 10.8.1977 (Ex. DW-1/1) purportedly issued by late Sh. Gian Chand and it was vehemently argued that the evidence of their hand writing expert (DW-4) has been completely overlooked by the learned Single Judge despite the fact that DW-4 not only gave cogent reasons in support of her opinion, DW-4/1, but also gave reasons for not agreeing with the report dated 28.9.1994 submitted by the CFSL. In our opinion, the said evidence was rightly not given credence by the learned Single Judge when pitted against the report submitted by the CFSL which clearly stated that the signatures on the receipt dated 10.8.1977 (Ex. DW-1/1) stated to be that of late Shri Gian Chand, were in fact, not his. A perusal of the evidence given by Sh. V.K. Khanna, handwriting expert from the CFSL, as PW-5, shows that the said witness has not only testified in support of his written opinion dated 28.9.1994 submitted to the Court, but his deposition remained unshakable even during his cross-examination.

19. We have also examined the aforesaid receipt, DW-1/1 and compared the signature claimed to be that of Sh. Gian Chand thereon with his undisputed signatures, forwarded to the handwriting expert for comparison and opinion. We find that there are remarkable differences in the signature of Shri Gian Chand appearing on the disputed document (Ex. DW/1/1) when compared with his admitted signatures including the flow of hand, the formulation of letters, the angle of writing, etc. Hence, the learned Single Judge cannot be faulted in rejecting the opinion of the handwriting expert, (DW-4) examined by the appellants.

20. Learned Senior Advocate for the appellants has further argued that even de hors the receipt dated 10.8.1977, the surrounding circumstances have to be ascertained not only from the documents, but also from the intention of the parties so as to establish as to whether the parties intended to create a lease or a licence. The Counsel for the appellants has placed reliance on the following judgments which draw a distinction between a lease and a licence:

(i) Associated Hotels of India Ltd. v. R.N. Kapoor, AIR 1959 SC 1262;

(ii) C.M. Beena and Anr. v. P.N. Ramachandra Rao, III (2004) SLT 36=AIR 2004 SC 2103;

(iii) Achintya Kumar Saha v. Nanee Printers and Ors., II (2004) SLT 290=AIR 2004 SC 1591.

21. There is no gainsaying the fact that for the purposes of determining whether there is a lease or a license existing between the parties, use of the terms, 'lease' or 'license' or 'licensor' or 'licensee' or 'rent' or 'licence fee' are in themselves, not decisive in nature. It is settled law right from the Associated Hotels case (supra) till date that an effort should be made to find out from the conduct of the parties, both, before and after creation of the relationship, as to their real intention and whether what has been granted is a right to possess exclusively coupled with transfer of a right to enjoy the property, or merely a right to use the property while possession is retained by the owner.

22. In the Associated Hotels of India (supra), the Supreme Court has held as below :

'The following propositions may be taken as well established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.'

23. In C.M. Beena and Anr. v. P.N. Ramachandra Rao (supra), the Supreme Court has, while referring to the cases of Associated Hotels of India (supra) and Corporation of Calicut v. K. Sreenivasan reported as IV (2002) SLT 38=(2002) 5 SCC 361(396), held that:

'The crucial issue for determination is as to whether there is a lease or licence existing between the parties. Though a deed of licence may have been executed it is open for the parties to the document to show that the relationship which was agreed upon by the parties and was really intended to be brought into existence was that of a landlord and tenant though it was outwardly styled as a deed of licence to act as a camouflage on the Rent Control Legislation. ‘Lease’ is defined in Section 105 of the Transfer of Property Act, 1882 while ‘licence’ is defined in Section 52 of the Indian Easements Act, 1982. Generally speaking the difference between a ‘lease’ and ‘licence’ is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful.'

24. Applying the aforesaid tests to the present case, in our opinion, the learned Single Judge has rightly arrived at the conclusion that the predecessor-in-interest of the appellants was not in exclusive possession of the suit premises and that they were not tenants but only licensees therein for the reasons elaborated hereinafter. The said finding and conclusion is well substantiated by the documents placed on record by the respondent No. 1/plaintiff. The learned Counsel for the respondent No. 1 has taken us through the suit record and we have perused the various documents including the statement of accounts of M/s. Kisoo Mal Gian Chand issued by the State Bank of India, Ajmal Khan Road, Karol Bagh, New Delhi (Ex. PW-2/3), a perusal of which clearly reflects that the said Bank account was operated only till 22.10.1977, whereafter Shri Gian Chand shifted his printing press business from Karol Bagh to Naraina Industrial Area. We have also perused Ex. PW-2/D-4, which is a licence dated 30th September, 1997 issued by the MCD in favour of M/s. Kisoo Mal Gian Chand for manufacturing paper napkins from the address at Naraina Industrial Area, Delhi being the suit premises. The above documents demolish the contention of the appellants that no business was being carried out by M/s. Kisoo Mal Gian Chand from the suit premises. The said fact is also established from a perusal of the evidence not only of PW-2, Ms. Suman Arora but also of DW-1, Shri Rajiv Makkar and DW-2, Shri S.C. Chopra.

25. In his examination-in-chief, DW-1 has himself admitted that there were two old and discarded machines lying in the rear corner of the ground floor of the suit property. The statement of DW-1 demolishes the claim of the appellants that they were in exclusive possession of the entire suit property. In his evidence, DW-2 has also categorically admitted that there was a joint mahurat in the suit premises at the time of its letting out. The learned Single Judge has rightly not placed much reliance on the statement of DW-3 who has stated in his deposition at one place that he has visited the suit property about a hundred times from the year 1979 onwards, but when cross-examined about the number of floors existing in the suit premises, he claimed that it consisted of a ground floor and a first floor, while admittedly, the same comprises a ground floor, mezzanine floor and a first floor.

26. In our opinion, the learned Single Judge did not commit any error in accepting the statement of PW-2 to the effect that the suit premises was granted by late Sh.Gian Chand on licence basis and that it was being used by the predecessor-in-interest of the appellants as a licensee and not as a tenant. The above said stand that the appellants were granted a licence and not a lease and that there was joint user of the suit premises, has been taken consistently by respondent No. 1/plaintiff not only in the pleadings, but is also established in the evidence adduced on her behalf and the documents placed by her on the record. Our attention has been drawn to para Nos. 6 and 7 of the plaint wherein it has been categorically stated that the deceased husband of the plaintiff had allowed the appellants joint user of a part of the suit premises on a monthly license fee of Rs. 5,100/- and that a portion of the same was kept by Shri Gian Chand. It was also stated that the remaining part of the premises was retained by late Shri Gian Chand to be used exclusively by him, where the machinery belonging to him stood installed. It will be fallacious to hold that the learned Single Judge ought to have rejected such of the depositions on the part of PW-2 which went beyond the pleadings. It is not necessary for the plaintiff to elaborately state each and every minute detail of her case in the plaint. What is material is that whatever has been largely stated in the plaint is substantiated by both, documentary as well as oral evidence at a later stage.

27. While adverting extensively to the oral evidence of PW-2, Ms. Suman Arora, daughter of late Shri Gian Chand, as well as the documentary evidence produced by the respondent No.1/plaintiff by way of the statement of accounts of M/s. Kisoo Mal Gian Chand, it has been correctly held by the learned Single Judge that it is established that the business of M/s. Kisoo Mal Gian Chand continued to be carried on from the suit premises even in the year 1978, after the expiry of late Shri Gian Chand. Admittedly, the machines of respondent No. 1/plaintiff were lying in the suit property.

28. The issue pertaining to the alleged rent of Rs. 2,000/- per month, stated by the appellants to have been paid in their capacity as tenants to late Shri Gian Chand, has also been rightly held against the appellants by the learned Single Judge, particularly, in the light of the fact that there was nothing produced by the appellants on the record to establish that a sum of Rs. 2,000/- had been paid by cheque to the respondents as rent of the suit premises as alleged. In fact, in the course of his cross-examination, DW-1 stated that he could not produce the statement of accounts to reflect that the deceased husband of the respondent No.1/plaintiff had encashed the cheque of Rs. 2,000/- allegedly handed over on the relevant date. In the absence of the said prime evidence which had a direct bearing on arriving at a conclusive finding that the relationship between the appellants and the respondent No. 1 was that of a tenant and a landlord, the learned Single Judge cannot be faulted in drawing an adverse inference against the appellant that there was no such payment of Rs. 2,000/- per month purported to have been made with respect to the rent.

29. Instead, the plea of the respondent No. 1/plaintiff that the suit premises was given on a licence basis at the rate of Rs. 5,100/- per month is believable and has rightly found favour with the learned Single Judge. The claim of the appellants that the said amount of Rs. 5,100/- was only an auspicious amount and not a licence fee, has been rightly rejected by the learned Single Judge, particularly since perusal of the written statement reflects that no such statement was made therein. The argument put forth on behalf of the appellants that the said amount of Rs.5,100/- had been spent on repair work, has been rightly disbelieved by the learned Single Judge, when it was claimed that an additional expenditure was also incurred by the appellant on 25.2.1978 to the tune of Rs. 5,991.80 towards repairs. The learned Single Judge did not commit any error in giving a finding that there was no occasion to make the payment of Rs. 2,000/- when it was claimed by the appellants that the rent of Rs. 5,100/- had been paid to late Shri Gian Chand to be adjusted towards future rent, inasmuch as on the one hand, a witness of the appellants/defendants had deposed in the witness box that the said amount of Rs. 5,100/- had been spent on the repair of the window (Jalli), other minor repairs and security for electricity connection, and on the other hand, the appellants claimed that they had incurred additional expenditure of Rs. 5,991.80 for repairs of the suit premises, which amount was to be adjusted towards future rent. In this view of the matter, the learned Single Judge rightly arrived at the conclusion that having spent so much amount, there was little occasion to pay the rent at Rs. 2,000/- per month.

30. We have perused Ex. DW-1/2 and Ex. DW-1/3 filed by the appellants. The same are receipts dated 28.10.1988 and 1.7.1988 issued by the MCD towards property tax dues. The learned Single Judge rightly refused to place any reliance on the receipts, Ex. DW-1/2 and Ex. DW-1/3 stated to have been the rent paid by the appellants to the MCD at Rs. 6,000/- and Rs. 4,000/- (as a multiplier of Rs. 2,000/-) on account of the demand dated 16.6.1988 (Ex. PW 2/D-1) for Rs. 1,24,974/- raised by the MCD towards arrears of property tax charges. We are, therefore, in agreement with the learned Single Judge that mere payment of some amounts to the MCD on account of demands raised by the MCD towards arrears of property tax charges or payment of electricity bills or water bills cannot entitle the appellants to claim that the said amount was adjustable towards the rent payable to the respondents/plaintiffs, more so when the surrounding circumstances do not establish the intention of the parties to create a lease and instead, point otherwise. We can also not overlook the fact that the abovesaid payments were made by the appellants only after institution of the suit for possession by the respondent No. 1, in May, 1988. There is even no proof placed on the record of making such payment at the rate of Rs. 2,000/- per month

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prior to service of legal notice dated 6.5.1988 issued by the respondent No. 1 to the appellants revoking the licence and calling upon them to hand over possession of the suit premises, or even prior to the institution of the suit. 31. We are of the opinion that the respondent No. 1/plaintiff has sufficiently discharged the onus placed on her for establishing her case as pleaded by her. We find no merit in the submission of the appellants that the learned Single Judge shifted the burden of proving the case set up by the respondent No. 1 in the plaint, on to the shoulder of the appellants. Hence, we do not find any infirmity in the findings and conclusion of the learned Single Judge that the suit premises was not in the exclusive possession of the appellants and consequently, their claim that they were tenants under the respondent No. 1/plaintiff and not licensees also falls through. The appellants were licencees under the respondent No.1 in respect of the suit property and were enjoying joint user thereof since the beginning. 32. We do not propose to deal with the issue as to the effect of the inter-pleader suit filed by the appellant/defendant prior to the institution of the present suit in hand, and the decision rendered thereon as also whether the same would operate as res judicata or not inasmuch as the said issue No. 2, which was decided in favour of the appellants, was not pressed by respondent No. 2. We also do not propose to deal with submissions made in relations to the effect of an unregistered document and whether it can be seen for collateral purposes for the reason that the document in question, namely, the receipt dated 10.8.1977 (Ex. DW-1/1) has been carefully examined not only by the learned Single Judge, but also by this Court to arrive at the same conclusion, that no reliance can be placed on the said document produced by the appellants/defendants and the same has to be discarded for the reasons already stated hereinabove. 33. In the light of the aforesaid discussion, we have no hesitation in holding that the scales rightly tilted in favour of the respondent No. 1 and against the appellants. There is no error in the impugned judgment and decree passed by the learned Single Judge against the appellants and in favour of the respondent No. 1 and the same are upheld. The appeal is rejected. All interim orders are vacated. The respondent No.1 is granted the liberty to withdraw the amounts deposited by the appellants in the Court from time to time. 34. The appellants have filed an application being Crl. M. No. 256/2003 on 5.12.2003 under Section 340, Cr.P.C. for initiating appropriate action against the respondent and/or any other person for allegedly committing the act of forging the signatures on the application and affidavit filed on the Court record. The said application was listed from time to time but merely adjourned on request. In the light of the decision rendered in the appeal and in the facts of the case, we dismiss the application filed under Section 340, Cr.P.C. 35. The appeal along with the application stand dismissed. The parties shall bear their own costs in the appeal.
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