JUDGMENT : 1. First Appeal No. 797/2008 is directed against the common judgment and order dated 10.1.2008 passed by learned III Joint Civil Judge, Sr.Dn., Nagpur in Special Civil Suit No. 1190/1995 which was decreed; whereas First Appeal No.393 /2010 is directed against the abovesaid judgment and order whereby Regular Civil Suit No. 543/ 1993 was dismissed with costs. 2. Facts briefly are: The dispute relates to house bearing No.336 situated in Municipal Ward No.65, at Khalasi Line, Mohan Nagar, Nagpur which is owned originally by S. Vyankatarayalu Naidu and inherited by Smt. S. Kamlabai w/o S.V.Naidu; she being the sole owner of suit house. It is case of the plaintiff that three rooms of the suit house were given on rent to the defendant-Rambhau Talewar at the monthly rent of 45/pursuant to the order passed by House Allotment Officer (in short “HAO”) in a case No. 8/8//A71 (C/D) 198081 dated 4.10.1980; while two remaining rooms were kept for occupation by the plaintiff for her own use. The plaintiff's family ordinarily resided at Bhopal and intermittently used to visit Nagpur. 3. The rent of three rooms in occupation of Shri Rambhau was enhanced to 100/with effect from 1.8.1986. In March 1993 when plaintiff-Kamlabai visited Nagpur she noticed to her dismay and surprise that that the defendant without consent, took possession of two rooms which were in the use and occupation of the plaintiffs after removing articles from these two rooms. The plaintiff lodged report to the Police. The defendant contended that the plaintiff had given five rooms to him on rent. The plaintiff was, thus, constrained to institute a suit for possession of two rooms, mesne profits and damages against the defendant. 4. The defendant had resisted the suit tooth and nail, on the ground that entire house was let to him on rent pursuant to an order by HAO. It is also contended that in 198081 the defendant constructed two rooms by spreading tin-sheets on two rooms. The defendant also contended that he had agreed to increase rent to 100/in lieu of one additional room given by the plaintiff. The defendant instituted Regular Civil Suit No. 543/ 1993 to get declaration and injunction for to protect his possession as defendant apprehended his dispossession from two rooms. 5. The defendant also contended that he had agreed to increase rent to 100/in lieu of one additional room given by the plaintiff. The defendant instituted Regular Civil Suit No. 543/ 1993 to get declaration and injunction for to protect his possession as defendant apprehended his dispossession from two rooms. 5. The trial Court found upon after dissecting evidence that defendant's possession over disputed premises was illegal and declared that the plaintiff is entitled to possession of disputed premises and mesne profits @ 500/per month from March 1993 till 8.11.1995 (filing of the suit). The trial Court disbelieved the case of the defendant-Rambhau and dismissed his Regular Civil Suit No. 543/ 1993 with costs. 6. Mr. A. Shelat, learned Advocate for the appellant (original defendant Rambhau) submitted that the trial Court ought to have accepted case of the defendant that entire house was rented in favour of the tenant pursuant to the order from the HAO. Learned Advocate submitted that the trial Court ought not to have believed the evidence of S Kameshwarrao Naidu as he could not have personal knowledge as to whether house was constructed as per sanctioned plan. He submitted that Kamlabai, the landlady was not examined in the trial Court as witness for the plaintiff as also brothers of Kameshwarrao were not examined. According to him, Nagpur Municipal Corporation ( in short “NMC”) had issued notice to defendant as occupant of the house on 3.10.1987 (Exh.99) which shows that Rambhau was tenant of entire house and not only of three rooms as alleged by plaintiff. It is also contended that merely a sanctioned plan by the NMC did not mean that the construction accordingly was in fact done by the plaintiff. It is further contended that complaint by Kamlabai to police against the defendant ( Exh.62) dated 22.3.1999 did not mention that only three rooms were let to defendant. According to Mr Shelat, the trial Court ought to have borne in mind that protected tenant is liable to be evicted only by due process of law and, therefore, suit by the tenant-defendant ought to have been decreed. Learned Advocate for the appellant, then, submitted that obligation to lead evidence to establish an allegation made by a party is on the party making allegation. The test would be who would fail if no evidence is led. The party must seek an opportunity to lead evidence. Learned Advocate for the appellant, then, submitted that obligation to lead evidence to establish an allegation made by a party is on the party making allegation. The test would be who would fail if no evidence is led. The party must seek an opportunity to lead evidence. According to Mr Shelat, the plaintiff had failed to discharge burden of proof required of them in view of Section 101, 102 of Indian Evidence Act. Mr Shelat submitted that no amount of evidence can be looked into without basis of pleadings in view of the ruling in Shankar Chakravarthi vs. Britannia Biscuit Co.Ltd. & another: AIR 1979 SC 1652 (Para 31). Mr Shelat submitted that in view of the Chapter III of the C.P. & Berar Letting of Premises and Rent Control Order, 1949, the defendant was placed in possession of entire suit house by the order of HAO. The plaintiff had not complied with schedule (under clause 22) which require furnishing of details such as, number of rooms and verandahs etc. According to Mr Shelat, the allotment order (Exh.93) referred to whole house and was not limited to three rooms (portion of suit premises). He submitted that since brothers of Kameshwarrao and Kamlabai were not examined in the trial Court adverse inference needed to be drawn by the learned trial Judge. Mr Shelat referred to ruling in Govardhan P. Thakare vs. Janardhan G. Thakare and another : 2005 AIHC 1276 ( Para 9) and contended that the plaintiff is required to produce appropriate evidence and discharge burden of proof to prove his case. Any lacunae in the evidence of defendant cannot be of much benefit to the plaintiff. Leaned Advocate argued that the plaintiff can succeed on the strength of his own title. Appellant-tenant had filed Regular Civil Suit No. 543/ 1993 as he apprehended forcible dispossession by the respondents who made false police report against him. Therefore, appellant was required to institute Regular Civil Suit No. 543/ 1993 for to protect his possession by seeking declaration that he is lawful tenant and should not be evicted without due process of law. It is contended that the respondents instituted Special Civil Suit No. 1190/ 1995 after about two years to set up counterblast to the suit by the tenant. Both the suits were heard together and decided by a common judgment impugned herein. It is contended that the respondents instituted Special Civil Suit No. 1190/ 1995 after about two years to set up counterblast to the suit by the tenant. Both the suits were heard together and decided by a common judgment impugned herein. The appellant moved in First Appeal No. 797/ 2008 in the High Court to challenge the decree in Special Civil Suit No. 1190/1995 while he also challenged dismissal of Regular Civil Suit No. 543 /1993 by RCA No. 319/ 2008 before the District Court, Nagpur. The appellant applied by Civil Application (F) No. 717/ 2010 to have RCA No. 319/ 2008 transferred for hearing along with First Appeal No.797/ 2008. According to Shri Shelat, cause of action for Special Civil Suit No. 1190/ 1995 was not established by the plaintiff. Shri Kameshwarrao (Plaintiff No.7) who deposed in Court stated that his mother visited Nagpur some time in March 1993 and she noticed that defendant had taken illegal and forcible possession of two rooms by breaking open the door and therefore, report (Exh.62) was lodged with police. The report is about breaking open the lock. According to witness material from the premises forcibly and illegally occupied by the defendant was removed, but no description was given in deposition/affidavit. Smt.Kamlabai who expired on 25.10.2007 who had allegedly noticed dispossession of two rooms was not examined. Her evidence was crucial but she was not examined. Kameshwarrao was not present at the time of alleged dispossession. He had last visited in 199293. According to Kameshwarrao, his brothers were present at the time when the house was given in possession of the defendant but none of the brothers were examined. Therefore, the learned trial Judge ought to have rejected evidence of Kameshwarrao. Mr Shelat, contended that the allotment order (Exh.93) from the HAO Rent Control Office, Nagpur was passed which had ordered landlady Smt. Kamalabai w/o S.V.Naidu under clause 23 (1) of the Central Provinces and Berar Letting of House and Rent Control Order to let out a vacant house to Shri R.V. Talewar R/o Nagpur and to place him in vacant possession thereof. It did not mention portion only of the vacant house. Arunrrao who allegedly gave intimation to HAO regarding three rooms vacated on 17.9.1980. by earlier tenant Baburao Falke, is also not examined. It did not mention portion only of the vacant house. Arunrrao who allegedly gave intimation to HAO regarding three rooms vacated on 17.9.1980. by earlier tenant Baburao Falke, is also not examined. According to Mr Shelat, such intimation is required to be given to HAO in prescribed proforma under clause 22 of the Rent Control Order. Therefore, since copy of that application is not placed on record, an adverse inference ought to have been drawn against the landlords. Thus, it is contended that learned trial Judge did not consider all the relevant oral and documentary evidence and ignored settled legal principles. Therefore, Regular Civil Suit No. 543/ 1993 by the tenant ought to have been decreed while Special Civil Suit No.1190/1995 filed by landlords ought to have been dismissed, with costs. 7. Per contra, learned Advocate Mr M. B. Naidu, supported the impugned common judgment and order on the ground that it was only logical outcome in the facts and circumstances of the case. He submitted that the house owned by plaintiff /landlord consisted of total five rooms. The defendant tenant while he filed written statement in the Special Civil Suit No. 1190/1995 admitted existence of five rooms; but stated that he had constructed two rooms. The tenant-defendant thereafter went on changing his version in the affidavit (Exh.97) and tried to set up a new version to contend that he had consent from the landlord for constructing walls in existing three rooms. The defendant contradicted his own version in his application (Exh.5). Relief of interim injunction against landlord was refused. The defendant-tenant preferred an appeal against the order below his application (Exh. 5). The Appeal from Order was admittedly dismissed by the District Court. Civil Revision Application filed in the High Court was also dismissed. Thereafter, the defendant tasting failure tried to invent a new apocryphal story by amending pleadings to suit his altered version. According to learned Advocate Mr Naidu, the house owned by the plaintiffs landlord consisted of five rooms since inception in the Municipal Records. In view of the sanctioned plan, the tenant could not have divided the three rooms in the five rooms contrary to the same. Mr Naidu referred to documentary evidence on record. In municipal records Exh. 119 previous tenants Mr B V Falke was in possession of H.No. 448/1 25' x 12' =300 sq.ft. In view of the sanctioned plan, the tenant could not have divided the three rooms in the five rooms contrary to the same. Mr Naidu referred to documentary evidence on record. In municipal records Exh. 119 previous tenants Mr B V Falke was in possession of H.No. 448/1 25' x 12' =300 sq.ft. {ALV 218} and Shri R.G. Panse was in possession of House No. 448/2; 24' x 12' + 8' x6' =336 sq.ft. {ALV 218}. Notice from NMC dated 1.6.1965 (Exh.120) for increase in taxes also indicated separate occupancies of previous tenants S/Shri Falke and Panse, who furnished information pursuant to notices dated 25.1.1965 from NMC indicating that Shri R.G. Panse was occupying three rooms and Shri B.V. Falke was occupying two rooms ( vide Exh.121 and Exh.122). These are tell-a-tale circumstances to prove that the suit house consisted of two tenements which were separately occupied by previous two tenants Shri Falke and Shri Panse indicating that five rooms were constructed by landlord, pursuant to the sanctioned plan and were let out as above. Shri Naidu criticised reliance of the defendant upon notice from NMC dated 3.10.1987 as got up and fabricated evidence as it appears served upon him and submitted to NMC on the same date. No action of reassessment of taxes was taken by NMC upon that notice. Thus, according to Shri Naidu, the plaintiff/ landlord has brought ample evidence on record in consonance with their pleadings that three rooms vacated by Shri Falke were let in favour of defendant and two rooms vacated by tenantShri Panse remained in occupation of the landlady-Kamlabai and that defendant-tenant had not made any new construction as alleged by him in his written statement to the suit. It is contended that no direct evidence was necessary of the landlady or other brothers of Kameshwarrao, as contended by Mr Shelat when material facts were pleaded and established on record by documentary evidence produced from the Municipal records, including sanctioned plan. 8. Learned trial Judge on appreciating the pleadings in the case observed that the defendant-tenant had admitted in his written statement that he had taken three rooms on rent along with toilet, bathroom and open space pursuant to the order from HAO (Exh.63). Lease agreement (Exh.64) also did not support the case of the defendant that whole house was taken by him on rent. Lease agreement (Exh.64) also did not support the case of the defendant that whole house was taken by him on rent. The version of the tenant that additional two rooms were newly constructed by him is also without any basis of prior written consent of the landlord or any other document like sanction obtained from NMC. No evidence was led by the defendant of any construction worker to support his case of additional construction as pleaded in para no.2 of the written statement to the effect that : “in or about the year 198081 the defendant constructed two rooms by putting corrugated iron sheets in the said premises”. Exh. 94 is titled as “Deed of Lease of a Portion of House” and description of the property leased out to lessee also mentioned clearly that western portion of the house No.448 situated at Mohan Nagar, Nagpur consisting of three rooms of a single storied building with bathroom and latrine was subject of the lease agreement between the landlady Kamlabai and the defendant tenant Rambhau. These facts established by documentary evidence leads to an only logical inference that the defendant tenant illegally occupied additional two rooms and is striving hard to retain his unauthorized occupation, by indulging into various versions by inventing a suitable story with a view to defeat landlord's claim by way of amending pleadings. Falsehood of the defendant-tenant was exposed by the documentary evidence produced on record. The submission on behalf of the landlords are convincing and acceptable. The trial Court appreciated the pleadings and evidence both oral and documentary led on record and have considered it so as to reach a correct conclusion in the facts and circumstances of the case. Due weightage has to be given to findings recorded by learned trial Judge who had opportunity to see witnesses deposing before him. The changes made in his version by the defendant during pendency of the trial were also well-appreciated by the trial Court to draw its own inferences and conclusion in respect of both the suits while delivering common judgment and order. Consequently, for reasons stated above and having given my anxious consideration to the submissions at the Bar and to the impugned judgment and order in the light of evidence led on record, I am not prepared to take any different view than that of the trial Court. Consequently, for reasons stated above and having given my anxious consideration to the submissions at the Bar and to the impugned judgment and order in the light of evidence led on record, I am not prepared to take any different view than that of the trial Court. Due process of law as contemplated by law has been followed by landlord to recover possession of two rooms which are in unauthorised occupation of the defendant. The defendant was and is bound to hand over vacant possession thereof to the landlords in the facts and circumstances of the case. The Appeals being devoid of merits, are dismissed with costs. After pronouncement of the judgment, learned counsel for the appellant orally requests for stay to the operation and execution of the above judgment and order for a period of nine months. The prayer is vociferously objected. The suit premises (i.e. two rooms which are in unuthorized occupation of the defendant) which he has to hand over to the landlords since rest of the three rooms will continue to remain in his occupation, there will be no hardship or inconvenience so as to require staying the operation of this judgment. According to learned counsel for the appellant, however, there will be hardship regarding use of latrine, bathroom and courtyard (i.e. washing place). It is hoped that the landlords would ensure that the use of essentials, such as, use of bathroom, toilet and washing place shall be permissible by the landlords for a period of three months from the date of this order.