D.M. Rege, J.
1. This writ petition challenges the validity of the judgment and order of the Appellate Bench of the Court of Small Causes dated 22-4-1982 in Appeal No. 315 E/79, allowing the first respondent's appeal and reversing the finding of the trial Court dated 5th April, 1979 on the preliminary issue raised in respondent No. 2's application being Ejectment Application No. 23/119/1971 against respondent No. 1 for ejectment and possession viz. whether first respondent proved that he was a tenant of the suit premises.
2. Few facts, necessary to dispose of this writ petition, are as under :---
The petitioner herein is at present the owner of a building called Jalaram Nivas in which the suit premises being block No. 9 on the second floor are situate. Respondent No. 1 claimed to be a tenant in respect of the said premises. Petitioner purchased the said building from respondent No. 2 some time in 1975. Since 1968 respondent No. 1 was admittedly in possession of the suit premises. According to respondent No. 2. he had in November 1968 granted to respondent No. 1 leave and licence in respect of the suit premises at a compensation of Rs. 175/- per month. According to him from the date of being put in possession of the suit premises, the respondent No. 1 did not pay any compensation and, therefore, he by a notice dated 4th October, 1970 revoked the licence. In reply to the said notice respondent No. 1 by his letter dated 14th October, 1972 claimed to be a tenant of the suit premises on payment of Rs. 103.32 per month as rent from 1-11-68 and alleged that there existed an agreement of tenancy between the parties and that he had paid Rs. 4000/- as and by way of loan to the respondent No. 2 at an interest of 9% per annum.
3. Thereafter on 4-3-1971 respondent No. 2 filed an application for ejectment being Ejectment Application No. 23/119 of 1971 under Chapter VII of the Presidency Small Causes Courts Act, against respondent No. 1 for eviction and possession. On 10-6-71 respondent No. 1 filed his defence wherein he, inter alia, claimed to be a monthly tenant of the premises at the rent of Rs. 103.32 p.m. on and from 1-11-1968 as per terms and conditions of the agreement of tenancy given and signed by the plaintiff as well as himself. He also claimed that he was in exclusive possession and occupation of the suit premises since November 1968 and that at the time of letting out of the suit premises he had paid an amount of Rs. 4,000/- to the second respondent as and by way of loan at the rate of interest of 9% p.a. on 15th November, 1968 by a cheque and that the said amount with interest was to be adjusted by respondent No. 2 towards the future rent at the rate of 103.32 p.m. and after calculating the rent till the application was made, respondent No. 1 claimed that an amount of Rs 797.08 was still due and payable to him as the amount being outstanding against respondent No. 2.
4. At the hearing of the said application, an issue, 'Whether respondent No. 1 proved that he was a tenant of the suit premises and as such protected under the Bombay Rent Act?', was dealt with as a preliminary issue. At the hearing in the course of his evidence, respondent No. 1 tendered in evidence a document dated 14-10-1970, purporting to be an agreement of tenancy in his favour under the signature of respondent No. 2 and himself. Thereupon respondent No. 2 made an application to the Court to have the document impounded and got the said document examined by a hand-writing expert as he denied its existence and his signature on the same, and claimed the same to be forged. The said application was granted by the Court and the document was forwarded to the hand-writing expert for his report. The report of the hand-writing expert showed that the signature on the document was not that of respondent No. 2 and secondly that although the document was purported to have been executed on 1-11-1968 it was on a stamp paper in the name of the first respondent purchased on 19-12-1968. The trial Court, therefore, held that the said document, Ex. 2, produced by respondent No. 1 in support of his tenancy was forged and fabricated document. The Court also held that even otherwise respondent No. 1 had failed to prove the tenancy. It, therefore, answered the preliminary issue in the negative holding that respondent No. 1 had failed to prove that he was a tenant in the suit premises.
5. Against the said order of the trial Court, the respondent No. 1 preferred an appeal to the Appellate Bench of that court being Appeal No. 315/E/79. The lower Appellate Court also concurred with the finding of the trial Court that the document Ex. 2 produced by respondent No. 1 in his evidence in support of his claim of tenancy was a forged and fabricated one. However; according to the Appellate Bench although the document produced by respondent No. 1 was not proved the Court could still consider other circumstances prevailing in this case for the purpose of finding out real nature of the transaction between the parties and decide the question of tenancy. In that connection, the Court considered the following four admitted circumstances in the case viz:---
(i) that the respondent No. 1 had obtained the premises through the intervention of a broker;
(ii) that he was in exclusive possession of the suit premises and that respondent No. 2 had no control over the suit premises;
(iii) that respondent No. 2 in his evidence had admitted that he was not recovering any compensation from respondent No. 1 in view of respondents No. 1 having given the said amount of Rs. 4000/- on interest of 9% per annum, and;
(iv) that although the grievance of respondent No. 2 was that respondent No. 1 never paid any amount of compensation after being put in possession, it was only by his letter dated 4-11-1970, i.e. after about two years that he had made a demand for arrears of compensation from 1968 onwards without taking any action for recovery of the same earlier.
The Court on the said circumstances came to a conclusion that the real nature of the transaction between the parties was that of landlord and tenant and not of licensor and licensee and respondent No. 1 had proved that he was the tenant of the suit premises. It was this finding of the lower Appellate Court which is being challenged in this writ petition.
6. The learned Counsel for the petitioner contended that although the Court was entitled to consider apart from the document produced by respondent No. 1 other circumstances in this case to find out the real nature of transaction, firstly, in doing so the Court did not take into consideration the conduct of respondent No. 1 in producing a forged and fabricated document purporting to be an agreement of tenancy which was a very material circumstances to be considered. Secondly, he has contended that the Court had also taken into consideration the fact that respondent No. 1 had failed to prove the case as to tenancy as set up by him. According to him if the Court had taken into consideration the said circumstances considered by the Court, the Court would not have come to the conclusion, as it has done, that the real nature of the transaction between the parties is to create tenancy.
7. In my view, the said contention of the learned Counsel for the petitioner has substance. The lower Appellate Court while arriving at its finding that the defendant had proved that he was a tenant in the premises, has omitted to take into consideration certain relevant circumstances viz. defendant's conduct in procuring a forged agreement of tenancy shortly after he was put into possession and his failure to prove his case set up in his defence and evidence satisfactorily and the same was liable to vitiate the said order.
8. It is true that in this case there were certain admitted facts which have been referred to by the lower Appellate Court in paras 8 and 9 of the judgment. Shortly stated, they were :---
(i) the suit premises were acquired by the defendant through a broker;
(ii) defendant being put in exclusive possession of the suit premises
(iii) payment by the defendant to the plaintiff of the sum of Rs. 4,0000/- at the time of putting him in possession of the premises;
(iv) admission by the plaintiff in his evidence that although he was recovering rent from the order tenant he was not recovering compensation from the defendant as he had received from the defendant Rs, 4000/- in advance; and
(v) the plaintiff had not demanded compensation for about two years till he wrote letter dated 4-11-1970 demanding the arrears.
9. Although the fact that the defendant had got possession through a broker and his possession was exclusive, were circumstances to be taken into consideration along with other circumstances for determining tenancy they by themselves were not conclusive. The admitted circumstances that the plaintiff had received Rs. 4000/- from the defendant had no relevance to the question of tenancy. As regards the said payment of Rs. 4000/- the case of respondent No. 1 was that he had paid the said amount to respondent No. 2 by way of a loan at interest of 9% p.a. and the said amount was to be adjusted towards the rent payable by him at the rate of Rs. 103:32 p.m. This case of respondent No. 1 was not proved. It was also first respondent's case in evidence that he had paid one month's rent to respondent No. 1 for which respondent No. 2 did not pass any receipt. This case of respondent No. 1 was proved to be false. On the other hand, the case of respondent No. 2 in his evidence was that he had not recovered compensation from respondent No. 1 as he recovered rent from the other tenant, as he had received Rs. 4000/- from respondent No. 1. However, the circumstances of receiving Rs. 4000/- from the respondent No. 1 and appropriating it towards the compensation payable by respondent No. 1 every month on whatever version of the case, could be consistent both with the existence of a tenancy or a licence. Further, the circumstance that respondent No. 2 delayed demanding compensation from respondent No. 1, could have no relevance to the question at issue.
10. However, in my view, in this case the Court ought to have taken into consideration also two other circumstances, which were material in finding out the real nature of the transaction between the parties. They were :---
Firstly, the conduct of defendant in producing in evidence, for the first time, a forged and fabricated document said to be an agreement of tenancy supposed to have been executed by respondent No. 2 and respondent No. 1 on 1-11-1968 on a stamp paper purchased by respondent No. 1 on 19-12-1968. Prior to the production of the said document respondent No. 1 appears to have in correspondence prior to the suit or even in his points of defence to the suit scrupulously avoided giving any particulars about the said agreement, such as, date of its execution and contents, except stating that there existed such an agreement. The plaintiff had denied the said allegation. The lower Appellate Court, however, while accepting the finding of the trial Court that the said document produced by respondent No. 1, for the first time in his evidence was a fabricated document containing a forged signature of the plaintiff had brushed aside the same by merely stating that it was not proved and the Court had thereafter proceeded to consider the other circumstances, apart from the contents of the document to find out the real nature of the transaction. This the Court did without taking into consideration the material circumstances in connection with the said document viz., the conduct of respondent No. 1 in producing in evidence for the first time a document as the basis of his case, which was evidently fabricated with the forged signature of respondent No. 2 and which appeared to have been done within two months of respondent No. 1 being put in possession of the premises. The lower Appellate Court appears to have thought the said conduct of the defendant as innocuous or not relevant while considering the other circumstance for determining the real nature of the transaction. If the real nature of the transaction between the parties and or their intention was to create a tenancy, then one fails to understand why respondent No. 1 could be driven to put forth a fabricated document containing forged signature of respondent No. 2 purporting to contain the terms of tenancy between the parties. This conduct of the respondent No. 1 in my view, strongly militates against there being any intention on the pat of the parties to create tenancy in respect of the suit premise. The said conduct of the respondent No. 1 shows that even according to him, but for the production of the said document the nature of the transaction could bot have been a tenancy.
11. In additional to this the other circumstances which the Court failed to consider was that the defendant on whom the burden to prove the tenancy lay, had set up a false case and in any event, had failed to prove the same. Firstly all along respondent No. 1 was claiming tenancy on the terms and conditions on an agreement of tenancy supposed to have been given and signed by respondent No. 2 and himself. That is brought out it his letter dated 14-4-1970 in reply to the second respondent's letter of demand dated 4-10-1970 as well as in his point of defence and in his evidence. Respondent No. 1, however not only miserably failed to substantial or prove his said case, but was found to have attempted to substantia; his case by producing a fabricated document with the forged signature of the respondent No. 2 supposed to contain conditions of tenancy. That also appears to be the reason for his scrupulously avoiding giving particulars as to the date of execution of the agreement or its terms anywhere either in his letter prior to the suit or its points of defence. Even otherwise, in the evidence of respondent No. 1 as regards the date of executive of the said agreement his case was convenient. In his evidence he first stated that he executed the agreement a day next after he was put into possession on 1-11-1968. However, the case to respondent No. 2 in his cross-examination was that after one month from giving of possession to the first respondent he i.e., 2nd respondent had brought two agreements one original and other duplicate and had taken the signature of respondent No. 1 on both of them and that one copy was retained with him and other was taken away.
12. Similarly his evidence was that apart from Rs. 4,000/- he had paid to respondent No. 2 now months rent in advance for which respondents No. 2 had not passed any receipt. This receipt was set up by him his evidence possibility because the document that he produced said so. However, no such case was made out by him at any time before. In my view, therefore, the case respondent No. 1 that the second respondent had put him in possession as a tenant of the premises on the terms and conditions contained in the document Ex. 2 which was found to be fabricated and forged by him was totally false and respondent No. 1 had failed to prove his case as to tenancy.
13. If, therefore, the said circumstances of the conduct of the first respondent in supporting his case of tenancy by producing a fabricated and forged document in evidence and secondly his conduct in setting up a totally false case, were taken into consideration, then in my view in spite of the existence of other admitted circumstances taken into consideration by the lower Appellate Court, it could not be said that the real nature of the transaction between the parties was that of a tenancy and/or that the first respondent had proved that he was a tenant in the suit premises.
14. The result, therefore, is that the petition succeeds. Rule is made absolute in terms of prayer (b) and (c) of the petition. Respondent No. 1 to pay costs of the petition to the petitioner and the second respondent.