Bombay High Court
T. Ramlingam vs Eble Egnasis on 6 December, 2013
Bench: S.B. Shukre
sa61.95.odt 1/46
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.61 OF 1995
1. T. Ramlingam s/o. Thuwel Swami
Pillay, Aged about 50 years,
Occupation : Service.
(Deleted as per Court's Order dated 7.6.2007)
(Ori.Plaintiff No.1)
2. Susairaj s/o. Ramlingam Pillay,
Aged about 25 years,
Occupation : Service.
(Ori.Plaintiff No.2)
Both are r/o. Azad Chowk,
Sadar, Nagpur. : APPELLANTS
...VERSUS...
1. Eble Egnasis s/o. A. Anand,
R/o. House No.1091,
Opposite Hindustan Travels,
Sitla Mata Mandir Road,
Sadar Bazar, Azad Chowk,
Nagpur.
(Ori.Defendant No.1)
(Amendment carried out as per
order of this Court dated 18.1.2012.)
2. Francina w/o. Francis,
Aged about 55 years,
Occupation : House-hold,
R/o. Azad Chowk, Sadar,
Opp.: Bardhan's House Sadar,
::: Downloaded on - 06/01/2014 04:06:50 :::
sa61.95.odt 2/46
Nagpur. (Dead)
(Ori.Defendant No.2)
Through Legal Representatives :
2(a) Morris s/o. J. Francis,
Aged about 65 years,
Occupation : Private Work.
2(b) De'sale s/o. J. Francis,
Aged about 59 years,
Occupation : Service.
2(c) Mrs. Megalmary w/o. Able Egnatius,
Aged about 63 years,
Occupation : Housewife,
2-a to 2-c R/o. Opposite Hindustan
Travels, Sadar Bazar, Azad Chowk,
Nagpur.
(Dead)
Through Legal Representatives :
2(c)(i) Shri Gerard s/o. Eble Egnatius,
Aged about 42 years,
Occupation : Service.
2(c)(ii) Ku. Geraldine d/o. Eble Egnatius,
Aged about 36 years,
Occupation : Household,
(Both residents of - House No.1091,
Opp. Hindustan Travels, Sitlamata
Mandir Road, Azad Chowk, Nagpur.)
(Amendment carried out as per
order of this Court dated 3.4.2012.)
::: Downloaded on - 06/01/2014 04:06:50 :::
sa61.95.odt 3/46
2(d) Smt. Estella w/o. Wasudeo Harode,
Aged about 70 years,
Occupation : Housewife,
R/o. C-402, Utkarsha
Anuradha Apartments,
Near Jaika Motors,
Civil Lines, Nagpur.
2(e) Smt. Eamelia w/o. K.D. Thomas,
Aged about 49 years,
Occupation : Housewife,
R/o. Tuhshiram Jaiswal Building,
Near Mata Mandir,
Gaddigodam, Nagpur.
2(f) Smt. Victoria w/o. J. George,
Aged about 53 years,
Occupation : Housewife,
R/o. Near Noga Factory,
Near Bhonsala School.
2(g) Smt. Gloria w/o. Glen Moses,
Aged about 55 years,
Occupation : Housewife,
R/o. Tara Mata Chowk,
Near Karamore House, Yerkheda,
Tah. Kamptee, Distt. Nagpur.
(Amendment carried out as per
Court's order dated 28.7.2011).
: RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. R.L. Khapre, Advocate for the Appellant.
Mr. P.S. Sadavarte, Advocate for the Respondent No.1.
Mr.R.T. Anthony, Advocate for the Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
::: Downloaded on - 06/01/2014 04:06:50 :::
sa61.95.odt 4/46
CORAM : S.B. SHUKRE, J.
th
DATE : 6
DECEMBER, 2013.
ORAL JUDGMENT :
1. This appeal arises out of the judgment and decree
passed on 26.9.1994 by 7th Additional District Judge, Nagpur in
Regular Civil Appeal No.630 of 1986 confirming the decision of
the 20th Joint Civil Judge, Junior Division, Nagpur rendered in
Regular Civil Suit No.131 of 1983 on 11.7.1986 dismissing the
suit of the appellants.
2. The appellant No.1 (dead) and appellant No.2 are
the original plaintiffs and respondent No.1 and respondent
No.2 (dead) through legal heirs are the original defendants.
They are, hereinafter, being referred to as the plaintiffs and the
defendants in the order in which they were joined as parties in
the suit.
3. The plaintiffs filed the suit claiming possession of the
House No.1091, situated at Sadar-Bazar, Nagpur (for short,
"suit house"), which they alleged to be under illegal occupation
sa61.95.odt 5/46
by the defendant No.1. They submitted that they were the
owners of the suit house and occupying it as a owners. They
submitted that the defendant No.1 was the son-in-law of
defendant No.2 and plaintiff No.1 was married to one Bubbi
alias Francina sister of the defendant No.2. They submitted
that the plaintiff No.2 was the son of the plaintiff No.1. They
further submitted that the defendant No.2 was the owner of
the house bearing House No.1090, which was really the half
portion of one whole house consisting of House Nos.1090 and
1091. According to them, initially, whole house comprising
House Nos.1090 and 1091 belonged to Jesudas, who died in
the year 1959 leaving behind him three daughters, namely,
Arikomary, defendant No.2-Francina, who was married to one
J. Fransis and Bubbi alias Francina. After the death of Jesudas,
the three sisters inherited the whole house. The eldest
daughter, Arikomary was married to one A.M.D. Anthony. He
was a Railway employee stationed at Bhusawal. The plaintiffs
submitted that couple of A.M.D. Anthony and Arikomary died
issueless. A.M.D. Anthony died in the year 1959 while
sa61.95.odt 6/46
Arikomary died on 20.5.1977. They submitted that at the time
of her death, Arikomary was residing in the suit house along
with the plaintiffs. They submitted that second sister,
defendant No.2, was also residing in the same building, but in
a different portion. At the time of filing of the suit, according
to the plaintiffs, husband of defendant No.2 was alive. The
plaintiffs submitted that Bubbi alias Francina, wife of plaintiff
No.1, was the youngest daughter and she was 9 years younger
than defendant No.2. They submitted that she died on
31.5.1981. They further submitted that after the death of
Arikomary, whole house devolved upon two sisters, Francina,
the defendant No.2 and Bubbi alias Francina. They submitted
that defendant No.1, being the son-in-law of defendant No.2,
was allowed to occupy ground floor portion of the suit house
since about the year 1977. They further submitted that by
issuing a notice dated 20.12.1982, they revoked the licence of
the defendant No.1 and thereafter defendant No.1 was residing
on the ground floor of the suit house as a trespasser. This
ground floor portion of the suit house is the suit property
sa61.95.odt 7/46
involved in the dispute. The plaintiffs submitted that since the
defendant No.1 refused to vacate the suit property they were
constrained to file a suit for recovery of possession of the suit
property from defendant No1 together with a claim for mesne
profits under Order 20 Rule 12 of C.P.C.
4. The defendant No.1 resisted the suit by filing his
written statement. He denied that plaintiffs alone were the
owners of the suit house and also denied that they were
exclusively occupying the same as owners. He did not dispute
the relationship between the parties as described in the plaint,
but submitted that the plaintiffs had deliberately and
fraudulently described the relationship in a half hearted
manner. He denied that there was any marriage between the
plaintiff No.1 and sister of defendant No.2 and submitted that
if there was any marriage in between them, it was not valid in
the eye of law. According to him, plaintiff No.1 performed
marriage with defendant No.2 on 21.1.1963. He denied that
the plaintiffs were entitled to succeed to the estate of the
deceased sister of defendant No.2. While defendant No.1
sa61.95.odt 8/46
admitted that plaintiff No.2 was the son of the plaintiff No.1,
he disputed the claim that he was the son of plaintiff No.1
begotten from Bubbi alias Francina. He also denied that
defendant No.2 was the exclusive owner of House No.1090.
He denied that the alleged deceased wife of plaintiff No.1 had
two names, namely, Bubbi and Francina. He however,
admitted that she was 9 years younger than defendant No.2.
He admitted that Jesudas had three daughters and the eldest
one Arikomary was married to A.M.D. Anthony, a railway
employee stationed at Bhusawal. He denied that A.M.D.
Anthony died in the year 1959, but submitted that he died in
the year 1961 at Nagpur. He admitted that Arikomary died on
20.5.1977. He submitted that after retirement of A.M.D.
Anthony from his service in Railway at Bhusawal in the year
1957, he came to Nagpur for permanent residence and since
then A.M.D. Anthony, Arikomary and defendant No.1 occupied
the suit property exclusively. He denied that Arikomary died
issueless. He admitted that younger sister of defendant No.2
was also residing in the same house in a different portion. He
sa61.95.odt 9/46
denied that the defendant No.2 was married to J. Francis. He
asserted that the plaintiff No.1 was the husband of defendant
No.2. He also denied that after the death of Arikomary, whole
house came to the share of wife of plaintiff No.1 and
defendant No.2. He submitted that the whole house,
comprising House Nos.1090 and 1091 was the joint property of
Jesudas and his brother J. David. He submitted that J. David
and his wife Antonima died without leaving any legal heirs.
He admitted that he was the son-in-law of defendant No.2, but
denied that because he was the son-in-law, he was allowed to
occupy the ground floor of house No.1090 as a licensee. He
denied that there existed any licence at any point of time and
that it stood revoked by notice dated 20.12.1982. He
submitted that he was staying in the suit property as owner
thereof. On these grounds, he urged that the suit was liable to
be dismissed.
5. Deceased defendant No.2 also submitted written
statement by which she admitted the entire claim of the
plaintiff.
sa61.95.odt 10/46
6. Trial Court framed the issues and recorded the
evidence. After considering the evidence available on record
and arguments of both sides, the trial Court found that there
was no clear proof about exclusive ownership of the plaintiffs
and then found that the plaintiffs were the joint owners of the
suit property together with defendant Nos.1 and 2 and that
defendant No.1 was not the licensee of plaintiffs. It also noted
that defendant No.1 was entitled to compensatory costs as
plaintiffs had not come clean with all the necessary facts.
Accordingly, the trial Court by its judgment and decree
rendered on 11.7.1986 dismissed the suit with costs and a
direction to plaintiffs to pay to defendant No.1 compensatory
costs of Rs.500.
7. In the appeal preferred before the Additional District
Judge, Nagpur aforestated findings given by the trial Court
came to be confirmed. However, the learned Additional
District Judge did not agree with the finding recorded by the
trial Court that since the plaintiffs had suppressed some
material facts defendant No.1 was entitled to compensatory
sa61.95.odt 11/46
cots of Rs.500/-, and therefore reversed the same.
Accordingly, the first appeal was partly allowed by the learned
Additional District Judge, by his Judgment and decree passed
on 26.9.1994. Not satisfied with it, the appellants are now
before this Court in present second appeal.
8. Second appeal was admitted by this Court on 15th
September, 1995 on the following substantial question of law :
"Whether the defendant, in absence of a plea
that the defendant No.1 has derived his title
being a son of Arikomary could resist the title
of the plaintiffs on the basis of the finding that
he is the son of Arikomary ?"
9. This Court, while hearing the appeal at the final
stage, had considered some aspects arising from the findings
recorded by both the Courts below. It was found by this Court
that on the material propositions of facts, no issue or point was
formulated by the Courts below. It was observed by this Court
that the question as to whether the plaintiff No.1 was the
owner could not have been decided without deciding the
question of relationship of plaintiff No.1 with deceased Bubbi,
sa61.95.odt 12/46
as his marriage with Bubbi was disputed by defendant No.1. It
was also found that while plaintiffs submitted that the
deceased Arikomary died issueless, the Courts below recorded
a finding that defendant No.1 too was having right, title and
interest in the suit property together with plaintiffs and
defendant No.2. It was considered by this Court that right of
defendant No.1 to the suit property would depend upon the
answer to the question as to whether or not he was the son of
deceased Arikomary and answer to this question was not found
to be given by the Courts below and, therefore, two issues were
framed by this Court for recording of findings thereon by the
first appellate Court and they are as follows :
"(1) Do plaintiffs prove that plaintiff No.1 was
legally married to Bubbi daughter of
Jesudas ?
2(a) Whether Arikomary died issueless ?
2(b) If yes, what is the effect on the suit ?"
10. While the appeal remained pending, matter was sent
to the first appellate Court for recording of its findings on these
sa61.95.odt 13/46
two issues. Parties were given liberty to lead evidence and the
first appellate Court was directed to remit its finding on these
two issues within a period of three months.
11. Accordingly, the first appellate Court allowed the
parties to lead the evidence and considering the same, it
recorded its findings on these issues and remitted the same to
this Court by it's order dated 2.4.2011. The order shows that
first appellate Court answered issue No.1 and issue No.2(a) as
in the affirmative and answered issue No.2(b) in terms that the
defendant No.1 could not claim joint ownership over the suit
property with plaintiffs and legal heirs of deceased defendant
No.2.
12. After the aforestated findings were returned to this
Court, respondent No.1(defendant No.1) filed his
cross-objection under Order 41 of Rule 22 of C.P.C. challenging
these findings as being against principles of natural justice,
fairness, transparency and provisions of law and also being
perverse and contrary to evidence on record.
13. After remitting of these findings, final hearing of the
sa61.95.odt 14/46
appeal together with cross-objections was resumed. During the
course of argument, it was revealed that this case also involved
additional substantial questions of law and, therefore, by
passing a separate order on 21st September, 2013, this Court
formulated two additional substantial questions of law. They
are as follows :
1) Whether the finding recorded by the learned
Appellate Court after remand of the case to it
regarding question of deceased Arikomary
having died issueless, in the light of the entire
evidence available on record, is perverse ?
2) In view of the positive finding recorded by
the First Appellate Court after remand on the
question whether the deceased Arickmary died
issueless, what relief could be given to the
appellants, who are the original plaintiffs ?
14. I have heard Mr.R.L.Khapre, learned counsel for the
plaintiffs Mr.P.S. Sadawarte, learned counsel for the defendant
No.1 (respondent No.1) and Shri Anthony, learned counsel for
defendant No.2 (respondent No.2) and with their assistance, I
have carefully gone through the memo of appeal,
cross-objections impugned judgments and decrees and the
sa61.95.odt 15/46
record of the trial Court.
15. While admitting this appeal for the first time on 15th
September, 1995, this Court had passed an order mentioning
that the appeal stood admitted on the "question of law". The
"question of law" is already stated in the earlier part of this
judgment. Mr.Sadawarte, learned counsel for the defendant
No.1, has raised a preliminary objection in this regard. He
submits that this appeal is liable to be dismissed in limine, as it
has been admitted not on a "substantial question of law", but
on a "question of law". He argues that this Court has no
jurisdiction under Section 100 of the Code of Civil Procedure,
1908 to finally hear the appeal as no substantial question of
law has been noted and recorded by this Court as involved in
the appeal. According to him, the scope of Section 100 is well
defined and it allows the High Court to hear a second appeal
only when there is involved in the case a substantial question
of law. He argues that to be a 'substantial question of law', it
must be debatable, not previously settled by law of the land or
a binding precedent, and must have a material bearing on the
sa61.95.odt 16/46
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. He further
submits that substantial question of law must be seen to be
arising from the pleadings and evidence before the Court and it
should be necessary in the facts and circumstances of the case
that the question of law is decided for a proper decision of the
case. He also argues that any point raised for the first time
before the High Court is not a question involved in the case
unless it goes to the root of the matter. In support, he places
reliance upon the following cases :
1) Govindaraju vs. Mariamman, AIR 2005 SC 1008.
2) Shankar Shridharrao Deshmukh vs. Vyankatesh
Shankarrao Deshmukh and others, 2007(1) Mh.L.J.
3) Boodireddy Chandraiah and others vs. Arigela Laxmi
and another, 2008(1) Mh.L.J.389.
4) Ram Khilona and others vs. Sardar and others,
(2002)6 SCC 375.
5) Commissioner, Hindu Religious and Charitable
Endowment vs. P. Shanmugama and others, AIR
2005 SC 770.
6) Roop Singh (dead), through L.Rs. vs. Ram Singh
sa61.95.odt 17/46
(dead), through L.Rs., AIR 2000 SC 1485.
7) Nune Prasad and others vs. Nune Ramakrishna,
(2008)8 SCC 258.
8) Hari Singh vs. Kanhaiya Lal, AIR 1999 SC 3325
9) Dharam Singh vs. Karnail Singh and others, (2008)9
SCC 759.
10) Muthu Gounder vs. Ammayeeammal (2002)6 SCC
11) Bant Singh and another vs. Niranjan Singh (dead) by
LRs. and another, (2008)4 SCC 75.
16. Mr.Khapre, learned counsel for the plaintiffs submits
that there cannot be any dispute about the propositions of law
that at the time of admitting the appeal under Section 100 of
C.P.C. High Court must formulate a substantial question of law
and in it's absence, the appeal is not maintainable. But, he
submits that in this case, when the appeal came to be admitted
by an order passed by this Court on 15th September, 1995, this
aspect was indeed considered and finding that the case did
involve a substantial question of law, the appeal was admitted.
While recording the order, he submits the High Court may not
have prefixed the word "substantial" to the words "question of
sa61.95.odt 18/46
law", but that does not mean that High Court did not intend
and mean that no substantial question of law was involved.
He also submits that if one goes through the pleadings of the
parties and the evidence adduced by them, it would be clear
that the question as framed by the High Court is in fact a
substantial question of law as it raises a debatable and
unsettled issue, the decision on which, in the facts and
circumstances of the case, is necessary and if it is left
unanswered, it would materially affect the rights of the parties
in the case. He places his reliance upon the case of
Govindaraju (supra), which is one of the cases relied upon also
by learned counsel for defendant No.1.
17. There is no dispute about the principle, as stated in
the cases relied upon by learned counsel for defendant No.1
and cited earlier that this Court has no jurisdiction to finally
hear an appeal under Section 100 C.P.C. unless it involves a
substantial question of law and it is so formulated.
18. But, on going through the pleadings and the
evidence adduced by both parties, I find that the learned
sa61.95.odt 19/46
counsel for the plaintiffs is right when he submits that the
question of law as framed by this Court as per the order dated
15th September, 1995 is indeed a substantial question of law.
It raises a debatable issue which has not been settled earlier
and it materially and substantially affects the rights of the
parties, which is in accordance with principles enunciated in
the cases relied upon by both sides and cited in earlier
paragraphs. Once it is found that the question of law as
framed by the High Court is really a substantial question of
law, how the question is described by the High Court would
not and should not alter the the nature of question framed.
An omission may occur in describing a question framed, but
that is inconsequential so far as substance of the question is
concerned. One has to appreciate that nomenclature of a
question is one thing and contents or substance of the question
are altogether different aspects. It is the contents which decide
whether a question is or is not substantial. A question may be
titled as a "substantial question". But, that would not make it
one. One has to look into the substance and contents of the
sa61.95.odt 20/46
question framed and surrounding circumstances to decide what
it really cannotes, whether substantial or ordinary question of
law. This is for the reason that title does not control the
contents of a proposition. It is only suggestive of what the
proposition is likely to be and the proposition, by virtue of it's
pith and substance, is really determinative of what it is about.
When a document is construed, same principle is applied.
19. In the case of B.K. Muniraju vs. State of Karnataka
and others, reported in (2008) 4 SCC 451, Hon'ble Supreme
Court has held that in order to know the real nature of
document, one has to look into the recitals of the document
and not the title of the document. In para 18 it observed as
under :
"...........In order to know the real nature of the
document, one has to look into the recitals of
the document, and not the title of the
document. The intention is to be gathered
from the recitals in the deed, the conduct of
the parties and the evidence on record. It is
settled law that the question of construction of
a document is to be decided by finding out the
intention of executant, firstly, from a
comprehensive reading of the terms of the
document itself, and then, by looking into--- to
sa61.95.odt 21/46
the extent permissible---the prevailing
circumstances which persuaded the author of
the document to execute it. With a view to
ascertain the nature of a transaction, the
document has to be read as a whole. A
sentence or term used may not be
determinative of the real nature of
transaction........."
In the case of State of Orissa and others vs.
Titaghur Paper Mills Company Limited and another,
reported in AIR 1985 SC 1293, the Hon'ble Apex Court in para
120 observed as under :-
"It is true that the nomenclature and
description given to a contract is not
determinative of the real nature of the
document or of the transaction thereunder.
These, however, have to be determined from
all the terms and clauses of the document and
all the rights and results flowing therefrom
and not by picking and choosing certain
clauses and the ultimate effect or result as the
Court did in the Orient Paper Mills' case (AIR
1977 SC 687)."
20. The Principles which apply to construe a document
can, by drawing analogy between a document and formally
worded question, be also applied to understand the true import
of the question formulated. This is because just as a document
sa61.95.odt 22/46
contains statements by which the intentions, aims, objects,
terms and so on are expressed, a question made in specific
words also contains a statement expressing a concept or
proposition which the maker intends to put to test for
correctness or eliciting it's true answer. Therefore, if some
omission has occurred in describing a question formulated by
Court, as it appears to have crept up in instant matter, it
cannot be said that the error is fatal to exercise of jurisdiction
by this Court under Section 100 of C.P.C.
21. Even otherwise under sub-section (5) of Section 100
C.P.C. liberty is given to respondent to satisfy the Court, at the
hearing of the appeal, that the case does not involve any
substantial question of law. This provision reflects the
intention of the legislature to not foreclose the issue upon
admission of the appeal and allow the argument to be made
about non-involvement of substantial question of law even
after admission of the appeal upon such a question. Existence
of this provision on the statute-book only shows that right of
respondent to convince the Court on absence of substantial
sa61.95.odt 23/46
question of law at a later stage is not taken away. It would
then follow that no matter how the question is described at
admission stage, this Court can proceed to hear the appeal if
the question, by it's contents, indicates itself to be a substantial
question of law and thereby no prejudice to the rights of
respondent would be caused.
22. Thus examined from all angles, no substance in the
argument of learned counsel for the defendant No.1 that this
case has not been admitted upon a substantial question of law
in as much as it has caused no prejudice to the rights of
defendant No.1.
23. Now, let us go to the first substantial question of law.
Mr.Khapre, learned counsel for the plaintiffs has submitted that
this question of law would have to be answered as in the
negative as after the case was remanded to the first appellate
Court, that Court, after consideration of the evidence on record
and arguments of both sides, has found that the plaintiff No.1
was legally married to Bubbi alias Francina daughter of
Jesudas and that Arikomary died issueless. After these findings
sa61.95.odt 24/46
of facts, according to the learned counsel for the appellant,
nothing has remained in this appeal and only course open to
the Court is to answer the substantial question of law in favour
of the appellant. Learned counsel for the defendant No.1
disagrees. According to him, there was no reason for this
Court to have remanded this matter to the first appellate Court
and if at all remand was to be directed, it should have been to
the trial Court so that defendant No.1 would have got an
opportunity to challenge the same before the first appellate
Court. He also submits that there has been a finding recorded
earlier by both the Courts below that the plaintiffs and both the
defendants jointly owned the suit property and the appellate
Court, before remand, has also found that the defendant No.1
is the son of the deceased Arikomary and, therefore, a
co-owner of the suit property. He submits that in such a
situation, this Court, while remanding the case, if it was
necessary, ought to have quashed the decrees passed by both
the Courts below and directed the trial Court to decide the
issues afresh. But, that has not been done, and now, the
sa61.95.odt 25/46
findings given by the first appellate Court after remand stand
in conflict with the findings recorded earlier and in particular
by the first appellate Court before remand. He further submits
that in such a situation, question of perversity of findings
recorded by first appellate Court before as well as after remand
would have to be carefully examined and it would have to be
decided as to which of these findings are in accordance with
evidence on record and which are not.
24. Mr. Khapre, learned counsel for the plaintiffs,
submits that order of remand of the case passed by this Court
had attained finality and had been acted upon by both sides
and therefore, now defendant No.1 cannot say what should
have been done by this court and what should not have been.
He, however, concedes that as a proposition of law, this Court
can always examine the aspect of perversity of findings.
25. Mr.Anthony, learned counsel for the defendant No.2
supports the argument of learned counsel for the plaintiffs.
26. What this Court should have done while remanding
the case to the first appellate Court earlier is something which
sa61.95.odt 26/46
is beyond the reach of powers of this Court in deciding a
second appeal. It has already been done and acted upon by the
parties and so on a chapter enacted and concluded, no one can
be allowed to lift the curtains and reagitate the issue.
Therefore, defendant No.1 now cannot be heard to say that the
case should have been, if it was must, sent to trial Court for
decision afresh. What can be and what needs to be examined
by this Court is as to how the findings recorded by the first
appellate Court after remand would have their impact on the
first substantial question of law formulated by this Court and
this has already been impliedly conveyed by this Court when it
formulated additional substantial question of law by the order
dated 21st September, 2013. These additional substantial
questions of law have been formulated only with a view to
examining the effect of the first appellate Court's findings
recorded on the issues referred to it while remanding the case
on the respective cases of the parties. Outcome of such an
examination would only determine the fate of this appeal.
27. Before considering the impact of findings of the first
sa61.95.odt 27/46
appellate Court after remand on the respective cases of rival
parties, it would be necessary to deal with the objection raised
on behalf of the plaintiffs at the time of admission of this
appeal which is reflected in the first substantial question of law
and also before first appellate Court before remand. The
objection was that no evidence could have been recorded on
the contention of defendant No.1 that he was son of deceased
Arikomary without their being any plea taken by him in his
written statement. While it was true that defendant No.1 did
not plead specifically in his written statement that he was son
of Arikomary, it is seen, it did not affect the case of plaintiffs in
any prejudicial manner as it turned out that as the evidence of
parties began, each of the parties started adducing evidence
according to pleadings some times and even beyond pleadings
at times. The parties, however, understood well each others
case and knew what case of other side they had to meet. First
appellate Court has dealt with this objection elaborately in its
judgment and order dated 26th September, 1994 passed before
remand. The first appellate Court then considered the law laid
sa61.95.odt 28/46
down by the Hon'ble Apex Court in its various cases, which
cases have been particularly referred to in paragraph 12 of its
judgment and following the same, it found that even though
there was no proper pleading or issue framed for
determination, the parties went to trial knowing fully well
what they were required to prove. It was noted that the parties
had adduced evidence which was in relation to respective
claims and it was not the case that it was only the defendant
No.1 who was guilty of wrong of improper by pleading or
failure to plead a particular fact. The plaintiffs were also found
to be blamed equally. For these reasons, the first appellate
Court came to a conclusion that the rival parties had very well
understood the case they had to meet and no prejudice would
be caused to either of them, if entire evidence was considered.
Accordingly, the first appellate Court took into account and
appreciated the whole evidence. This conclusion reached by
the first appellate Court is consistent with the law laid down by
the Hon'ble Apex Court in Catena of its judgments. Kali
Prasad Agarwalla (Dead by LRs.) and others vs. Bharat
sa61.95.odt 29/46
Cooking Coal Ltd. and others, reported in AIR 1989 SC 1530
is one of the cases relied upon by the first appellate Court. It
has been held therein that when the parties went to trial
knowing very well what they were required to prove and had
adduced evidence of their choice, in support of their respective
claims, it would be too late for them to raise the contention
that the evidence led should not be looked into. In the case of
M/s. Ganesh Trading Co. vs. Moji Ram, reported in AIR
1978 SC 484, the Hon'ble Apex Court has held that the
procedural law is intended to facilitate and not obstruct the
course of substantive justice. It is further held that provisions
relating to pleadings are meant to give to each side intimation
of the case of the other so that it may be met to enable Court to
determine what is really at issue between the parties.
28. Mr.Sadavarte, learned counsel for the defendant No.
1, has referred to me the judgment of learned Single Judge of
this Court delivered in the case of Shikshan Prasarak Mandal
Navin Nanded and another vs. State of Maharashtra and
another, reported in 2010(3) Mh.L.J. 895, in support of his
sa61.95.odt 30/46
submission that consideration of the entire evidence by the
Courts below before remand is proper and that there is no
substance in the submission that it could not have been looked
into without there being any proper pleadings. Mr.Khapre,
learned counsel for the plaintiff submits that this case does not
support the contention of the defendant No.1. He is right.
There have been observations in paragraph 13 of the judgment
that the findings recorded by the Tribunal therein in absence of
any pleadings by either parties amounted to going beyond
jurisdiction of the Tribunal. This is the general principal of law
and it has been laid down by the Hon'ble Apex Court in various
cases as discussed earlier that in cases where parties go to trial
knowing well each other's case, question of proper pleadings
will loose it's significance. Relying on the principles of law
expounded by the Hon'ble Apex Court in this regard, this Court
in another case of Preetam Kaur vs. Prakash Ramdeo
Jaiswal, reported in 2011(6) Mh.L.J. 84 has held that when
parties know the case inspite of deficiencies in the pleadings
and proceed to trial on those issues by producing evidence, it
sa61.95.odt 31/46
would not be open to a party to raise the question of absence
of pleadings in the appeal.
29. Thus, it is clear that consideration of the entire
evidence available on record by both the Courts below before
remand was in accordance with the settled principles of law
and now the plaintiffs cannot reverse their stand and say that
the evidence should not be looked into. With this finding, it
should ordinarily follow that first substantial question of law
formulated by this Court is answered in the affirmative in
favour of defendant No.1. But before coming to a definitive
answer to this question, it must be considered that there have
been subsequent developments in the matter and it would be
necessary to examine their impact on the issue raised by this
question. The impact of the findings recorded after remand
would have to be seen properly and it cannot be properly seen,
unless the question of perversity of these findings, as raised in
the cross-objections of defendant No.1 and formulated as one
of the additional substantial questions of law by this Court, is
also examined. This Court while remanding the case to the first
sa61.95.odt 32/46
appellate Court by its order passed on 25th March, 2008 has
held that the first appellate Court had not formulated any point
for determination in respect of ownership of the plaintiffs and
controversy about Arikomary having died issueless. It was
also noted that on the material propositions of facts, such as,
plaintiff No.1, being the husband of deceased Bubbi alias
Francina, had inherited her share in the suit property and
defendant No.1, being the son of deceased Arikomary, was also
the co-owner of the suit property, both the Courts below did
not formulate any issue or point and, therefore, issues were
framed by this Court and the case was remanded to the first
appellate Court for recording of findings thereon and remitting
the same to this Court. While doing so, this Court did not
quash the findings recorded by both the Courts below as they
stood before remand. Therefore, these findings stand as they
are. It may be noted here that some of these findings touch
upon the same aspects on which first appellate Court has
recorded its specific decision after remand. So, now we have
additional findings in respect of the same aspects dealt with
sa61.95.odt 33/46
earlier. Therefore, we will have to consider together all these
findings given before and after remand and examine them
from the view point of their suffering from any perversity or
otherwise. Such an approach will only enable this Court to
answer appropriately the substantial question of law and the
additional substantial questions of law formulated by this
Court.
30. The trial Court in its judgment and decree dated
11.7.1986 did not give any finding as regards relationship
between the parties stating that no issue on that aspect of the
case was framed. It observed that the material issues were
whether the plaintiffs were owners of the property and
whether the defendant No.1 was inducted into the suit
premises as a licensee and whether the licence had been
revoked legally or not. In the light of such rival claims that the
trial Court considered the evidence adduced by the parties. It
found that since the case was filed by the landlords against the
licensee, the burden was upon the landlords/plaintiffs to prove
their title over the suit property in a clear manner, but instead
sa61.95.odt 34/46
of giving precise account of their title over the suit property,
the trial Court noted, the plaintiffs came up with pleadings in
twisted forms and did not adduce clear cut evidence to
establish title. However, picking up from whatever oral and
documentary evidence that was produced on record by the
parties, the trial Court recorded a finding that the defendant
No.1 was brought up from his very childhood by deceased
Arikomary, that he was residing in the suit house since 1957,
and that there was no substance in the claim of the plaintiffs
that defendant No.1 was inducted in the suit house as a
licensee about 15 years before. It also found that defendant
No.1, apart from being not a licensee, was residing in the suit
property as son of Arikomary. As regards status of plaintiffs, it
was found by the trial Court that the plaintiffs failed to show
their exclusive ownership over the suit property. But, it further
found that overall evidence disclosed that plaintiff Nos.1 and 2
were also related to the suit property. Ultimately, the trial
Court held that the plaintiffs failed to establish their clear title
over the suit property and concluded that the plaintiffs
sa61.95.odt 35/46
together with defendant Nos.1 and 2 were the joint owners of
the property. While recording these findings, the trial Court
had considered in details oral evidence particularly the
evidence of plaintiff No.1, defendant Nos. 1 and 2, plaintiff's
witness No.2, Wasudeo Yashwant Salve (Exhibit-81), witness
No.2 of defendant No.2, Father Jerom Pinto (Exhibit-93) and
the documentary evidence adduced by the parties. These
findings being based on the evidence before the Court and not
the result of the consideration of any extraneous or
inadmissible evidence, cannot be said to be perverse.
31. These very findings of the trial Court have been
again considered at length by the first appellate Court before
remand of the case. This is evident from its judgment and
decree delivered on 26.9.1994. The first appellate Court went
one step further and recorded clear findings on facts, in respect
of which the trial Court did not record any finding. The trial
Court, did not make any conclusion about the relationship
between the parties, but the first appellate Court, upon
consideration of evidence, held that the marriage of plaintiff
sa61.95.odt 36/46
No.1 and deceased Bubbi was performed on 21.1.1963, while
plaintiff No.2 was born to the couple before marriage i.e. on
21.1.1959. The first appellate Court then held that subsequent
marriage was giving all the legitimate status to plaintiff No.1
and, therefore, legitimacy of plaintiff No.2, as son of the
plaintiff No.1, cannot be disputed. The first appellate Court
also found that evidence disclosed that plaintiff No.1 was
married to Bubbi in a Church and it had clothed plaintiff No.1
with the status of a Christian convert. The trial Court then
held that the plaintiffs, being the heirs of deceased Bubbi,
were entitled to inherit the properties of deceased Bubbi. It is
worthwhile to mention here that there were some material
admissions appearing on record such as, admissions given by
PW 2 Wasudeo (Exhibit-81) that Arikomary came to reside at
Nagpur with one boy aged about 15 to 16 years and this boy
was residing in the suit house from 1956, the admissions given
by the defendant No.2 in her cross-examination that during her
visit to Bhusawal in the year 1954, defendant No.1 was seen as
residing at Bhusawal and he was then aged about 10 to 12
sa61.95.odt 37/46
years and that his educational expenses were borne by A.M.D.
Anthony, husband of Arikomary and that Arikomary came to
reside in the suit property along with defendant No.1 in the
year 1957. These admissions also found their some support
from the documentary evidence. Therefore, considering them
together, the first appellate Court further held that it cannot be
disputed that the defendant No.1 was the son of Arikomary.
The first appellate Court also held that there was no evidence
available on record showing that there was a partition by
mutual agreement between the parties and, therefore, the suit
house was found to have been held by plaintiffs and both the
defendants jointly, with all of them having their respective
undivided shares therein. Speaking about defendant No.1, the
first appellate Court particularly observed in paragraph 33 of
it's judgment, that he was a joint owner of the suit house along
with plaintiff Nos.1 and 2 and defendant No.1, being son of
Arikomary.
32. All these findings recorded by the first appellate
Court are clear. They go to show that plaintiff No.1 was the
sa61.95.odt 38/46
husband of deceased Bubbi, who had assumed the status of a
Christian convert and that plaintiff No.2 was the legitimate son
of plaintiff No.1 with deceased Bubbi. They also indicate that
defendant No.1 was proved by evidence on record to be son of
deceased Arikomary, the eldest sister of defendant No.2 and
deceased Bubbi. Such relationship in between the parties
having been established by evidence on record, the first
appellate Court went on to confirm the findings recorded by
the trial Court except one finding relating to imposition of
compensatory costs on the plaintiff. These findings, I must say,
are not perverse. They are not the result of consideration of
any inadmissible evidence or non-consideration of material
evidence on record. They are not based upon any conjectures
of surmises. It may be that the evidence on record may give
rise to another view. But simply because another view is
possible, it would not be open for this Court to interfere with
these findings, without there being any perversity seen. It is a
settled law that High Court, in it's jurisdiction under Section
100 C.P.C. cannot interfere with a finding of fact arrived at
sa61.95.odt 39/46
after considering admissible evidence on record, though upon
reconsideration of same evidence, it is possible to record a
different finding. In other words, in second appeal, High Court
cannot reappreciate evidence so as to correct an erroneous
finding, however, gross the error might be, as long as the
finding is based upon evidence on record and is not the
product of non-consideration of material evidence or
consideration of extraneous or inadmissible material or
evidence. In this regard, reference may be had to the law laid
down by Hon'ble Apex Court in the cases of Navaneethmal vs.
Arjuna Chetty, reported in (1996) 6 SCC 196 and
Pakeerappa Rai vs. Seethamma Hengsu (dead) by L.Rs. and
others, reported in (2001) 9 SCC 521, wherein the principle
formulated is that High Court in exercise of power under
Section 100 C.P.C. cannot interfere with erroneous finding of
fact based on appreciation of evidence, howsoever gross the
error might be, unless it is a perverse finding, as explained
earlier.
33. As regards these findings, there were no issues or
sa61.95.odt 40/46
points formulated by the Courts below. But, as already stated,
these findings were based upon evidence led by parties on the
points or aspects of the case well understood by them. Besides,
these findings were necessary to determine the main
controversy involved in the case - whether or not plaintiffs
were the owners of the suit-house and whether or not
defendant No.1 occupied the suit-house as a licensee of
plaintiffs. Therefore, recording of said findings without
formulation of points or issues cannot be said to be illegal, nor
could they be seen to have caused any prejudice to either of
parties, as they were borne out by the evidence adduced
consciously by the parties themselves.
34. As against these findings, there are available on
record findings recorded by the first appellate Court after
remand, one of which stands in contrast to the finding
previously recorded by it and discussed earlier. So far as the
finding relating to legality of marriage of plaintiff No.1 with
deceased Bubbi, daughter of Jesudas, is concerned, one can
very well see that it is based upon consideration of the
sa61.95.odt 41/46
evidence available on record, and as such no perversity in this
finding can be seen. It is also in line with what the first
appellate Court had already held and in which no perversity
has been noticed by this Court. Therefore, this finding
recorded after remand of the case to the first appellate Court,
needs to be upheld. However, such does not seem to be the
position about the finding on the issue as to whether or not
Arikomary died issueless. The first appellate Court in its
judgment and order dated 2nd April, 2011 has dealt with this
issue in just two paragraphs and in a very cursory manner. It
has held that no positive and cogent evidence has been placed
on record to show that the defendant No.1 is a son of
Arikomary. While holding that Arikomary died issueless and
defendant No1 was not her son, the first appellate Court put
forward these reasons' (i) marriage of Arikomary with A.M.D.
Anthony was performed on 30.10.1943, and whereas, school
leaving certificate produced by defendant No.1 showed that his
date of birth was 21.10.1943 indicating that he was born
before marriage between Anthony and Arikomary, which
sa61.95.odt 42/46
created doubt about they being his parents. (ii) School
certificate placed on record by defendant No.1 did not disclose
name of his father A.M.D. Anthony. (iii)Marriage certificate of
defendant No.1 did not show names of his parents as
Arikomary and A.M.D. Anthony. (iv) Defendant No.1
performed marriage daughter of defendant No.2, the sister of
Arikomary and no one would perform marriage with maternal
sister. The first appellate Court held that these circumstances
created a doubt about the status of defendant No.1 being son
of Arikomary and accordingly it concluded that deceased
Arikomary died issueless.
35. It needs to be noted here that the first appellate
Court after remand has not at all considered other evidence
already available on record. There were admissions given by
the witnesses and there was also some documentary evidence,
all of which has been discussed at length by the trial Court and
particularly the first appellate Court before remand and which
had persuaded these Courts to form an opinion that the
defendant No.1 was the son of deceased Arikomary. At the
sa61.95.odt 43/46
cost of repetition, it must be said that there were material
admissions given in earlier part of evidence on record by some
of the witnesses. Witness No.2 of plaintiffs, Wasudeo
(Exhibit-81), had admitted that when Arikomary came to
reside at Nagpur, she was having one boy aged about 14-15
years, and said boy was residing in suit-house since 1956 till
date. Even defendant No.2, Chaurima (Exhibit-89), had
admitted that in 1954 she had been to Bhusawal and stayed
there for two days and at that time defendant No.1 was there
at Bhusawal. She had further admitted that at that time age of
defendant No.1 was about 10-12 years and his educational
expenses at Bhusawal and Nagpur were borne by A.M.D.
Anthony. Father Jerom Pinto (Exhibit-93) was witness No.2 of
defendant No.2. He too had admitted that when he had gone
to house of Arikomary sometime after 1972, defendant No.1
was seen by him as residing with Arikomary. He also admitted
that he could say that defendant No.1 was the son of
Arikomary. The first appellate Court should have considered
this material evidence as it was there on record and that entire
sa61.95.odt 44/46
proceedings had not been quashed by this Court. But as it has
not, the finding recorded by it on the issue of Arikomry having
died issueless after remand suffers from the vice of perversity.
This finding of the first appellate Court recorded after remand,
therefore, cannot be sustained in law and it must go. On its
basis no relief could be given the appellants/original plaintiffs.
Both the additional substantial questions of law are, therefore,
answered accordingly.
36. Once it is found that the finding recorded by the first
appellate Court after remand on the point of Arikomary having
died issueless cannot be sustained in law, and no perversity has
been found or shown in the findings recorded on this very issue
by the Courts below before remand of the case, it has to be
held that the findings as they were originally recorded by both
the Courts below before remand would take their place due to
them in law. These findings, need to be upheld and
accordingly I confirm them.
37. With confirmation of the findings recorded by both
the Courts below before remand of the case, the answer to the
sa61.95.odt 45/46
first substantial question of law would go in favour of the
defendant No.1 and accordingly I find that defendant No.1, in
absence of a plea that the defendant No.1 has derived his title
being a son of Arikomary could resist the title of the plaintiff
on the basis of the finding that he is the son of Arikomary. The
substantial question of law as originally framed, is answered
accordingly in the affirmative.
38. Learned counsel for the defendant No.1 has also
advanced his argument on several other aspects of the case
relating to validity of the marriage, religion of plaintiff No.1,
the suit property being originally joint property of Yesudas and
his brother J.David and so on. He has also cited some case law
in support his argument on this point. Learned counsel for the
plaintiffs and defendant No.2 have advanced their argument in
reply. But, no substantial questions of law have been
formulated on these aspects, nor could I see any having been
involved in this case. Therefore, it is not necessary to deal with
these arguments in as much as they are out of the scope of
substantial questions of law involved in the matter.
sa61.95.odt 46/46
39. For these reasons, I find no merit in this appeal and
it cannot succeed. In the circumstances, the appeal fails. It
stands dismissed and the judgment and decree of the first
appellate Court rendered on 26.9.1994 in Regular Civil Appeal
No.630 of 1986 confirming the decree of dismissal of the suit
and setting aside the decree for compensatory costs of
Rs.500/-, is hereby confirmed. Cross-objections are disposed of
in these terms.
40. Costs to follow the result.
JUDGE
DWW
