sa.202.01
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO.202/2001
1) Smt. Sayatribai @ Prabhawati w/o Nana Powale Aged 50 years, occu: cultivator
2) Dilip s/o Nana Powale Aged 25 years, occu: cultivator
3) vijay s/o Nana Powale Aged 20 years, occu: cultivator
4) Gangadhar s/o Natthu Dongre Aged 40 years, occu: service All R/o Gosebujurk Tal. Pawani, Dist. Bhandara. ... APPELLANTS v e r s u s
1) Kisan s/o Vitthal Landge Aged 60 years, occu: cultivator R/o Gose (Bk) Tah. Pawani, Dist. Bhandara. .. ... RESPONDENT ...........................................................................................................................
Mr. M.V.Masodkar, Advocate for the appellants None for respondent ............................................................................................................................
CORAM: A.B.CHAUDHARI, J .
DATED : 29th February, 2016
ORAL JUDGMENT:
1. Being aggrieved by the judgment and decree dated
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sa.202.01
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21.3.2001 in Regular Civil Appeal No.193/1999 passed by the learned Additional District Judge, Bhandara, thereby partly allowing the Appeal preferred by the respondent/original plaintiff, reversing the judgment and decree, which was passed in favour of appellants by the Civil Judge, Jr. Dn. Pawani, by which the suit was dismissed in its entirety, the present Second Appeal was preferred by the unsuccessful defendants.
2. In support of the Appeal, Mr. M.V. Masodkar, learned counsel for the appellants, assailing the impugned judgment and decree made by the lower Appellate Court, submitted that both the Courts concurrently found that the respondent/plaintiff miserably failed to prove the ownership for claiming the declaration in the Suit as to the ownership over the suit land; for passing a decree for permanent injunction the plaintiff thus failed to prove his ownership but still the lower Appellate Court has issued the order of permanent injunction by recording a finding that if the respondent/plaintiff was not the owner of the property, but being in the possession of the suit property, was entitled to possession as a licensee. Mr.Masodkar, learned counsel contended that reading of the entire plaint, however, nowhere shows that the licensee was being set up, nor any issue was framed for ::: Uploaded on - 01/03/2016 ::: Downloaded on - 31/07/2016 07:06:39 ::: sa.202.01 3 determination and, therefore, the lower Appellate Court made out a third case when the case of the respondent/plaintiff was of exclusive ownership and adverse possession. The respondent/plaintiff failed on both the counts; but then the lower Appellate Court, on its own, invented the case of licensee, which the respondent/plaintiff never claimed nor pleaded. He therefore submitted that the lower Appellate Court ought to have simply maintained the decree passed by the trial Judge, dismissing the Suit in its entirety and nothing more.
3. None appears on behalf of the respondent, though served.
4. Heard learned counsel for the appellants. I frame the following substantial question of law in supersession of the question already framed by this Court, vide order dated 5th April,2004.
"Whether the lower Appellate Court could make a decree for permanent injunction holding that the respondent /plaintiff was, at least a licensee, if not the owner or person in adverse possession, in the absence of even the remotest pleading or case of the respondent/plaintiff to that effect? ..No What order? The Second Appeal is allowed."::: Uploaded on - 01/03/2016 ::: Downloaded on - 31/07/2016 07:06:39 :::
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5. With the able assistance of learned counsel for the appellant, I have perused the entire plaint dated 7.7.1997 and the prayers made therein. In the body of the plaint, the respondent/plaintiff pleaded that he was the owner of the suit property. Admittedly, both the Courts below have held that he failed to prove the ownership. A prayer is made to declare him as the owner of the suit land and the Courts below obviously refused to grant any relief of declaration, having been satisfied that the respondent/plaintiff failed to prove his case about ownership. The next prayer made was for decree of permanent injunction in favour of plaintiff restraining the defendants from disturbing the plaintiff's possession on the suit land. Obviously, the second prayer is based on the first prayer. Perusal of the entire plaint does not show even a single word that in the alternative the respondent/plaintiff was claiming any licence, much less gratuitous licence or license of any kind for that matter. Even the written statement does not say a word about the licence. There is no issue framed about the respondent/plaintiff being a licensee of the suit field.
There is no point for determination framed by the lower Appellate Court about the respondent/plaintiff being a licensee. Despite this position, the lower Appellate Court held in paragraph No.16 of its judgment that the respondent/plaintiff continued to be in possession of ::: Uploaded on - 01/03/2016 ::: Downloaded on - 31/07/2016 07:06:39 ::: sa.202.01 5 the suit land not as a owner but as a licensee and further his licence was not validly revoked by the defendants for making his lawful eviction. It is difficult to countenance the reasons recorded by the lower Appellate Court because the theory of license does not find place anywhere in the entire case and the question of revocation of licence or the lawful eviction from the suit field by termination of licence could not have arisen. Thus, to sump up, this is nothing but a figment of imagination by the lower Appellate Court that if the plaintiff could not be held as owner he must be a licensee and that if he is a licensee he could not be evicted without due process of law. I am unable to agree with such finding, in the absence of pleading and proof. In my view, the Court is supposed to decide the matter on the basis of the stand taken by the parties before the Court which should be explicit. In this case, no issue is to be found in the judgment of the trial court much less in the pleadings anywhere. Apart from that, the Court could not have issued injunction having recorded a concurrent finding of fact and no declaration for his ownership could at all be issued. After all, it must be borne in mind that the relief of permanent injunction is not to be automatically given because the person is found in possession. In that view of the matter, I think the question framed by me will have to be answered in the ::: Uploaded on - 01/03/2016 ::: Downloaded on - 31/07/2016 07:06:39 ::: sa.202.01 6 negative. In the result, the Appeal must succeed. Hence the following order :
ORDER
1) Second Appeal No. 202/2001 is allowed.
2) The judgment and decree dated 21.03.2001 in Regular Civil Appeal No. 193/1999 passed by the learned Additional District Judge, Bhandara, is set aside.
3) The judgment and decree dated 3.11.1999 in Regular Civil Suit No. 49/1997 passed by learned Civil Judge, Jr.Dn. Pauni, is restored.
4) No order as to costs.
JUDGE
sahare
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