Bombay High Court
Sharad Krishnaji Kulkarni vs Dr. Atul Sadashiv Kulkarni Adn Ors on 15 December, 2016
Bench: R.D. Dhanuka
ppn 1 sa-453.16(j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.453 OF 2016
ALONG WITH
CIVIL APPLICATION NO.920 OF 2016
Sharad Krishnaji Kulkarni )
Age 60 years, Occ.Retired )
Address at -C.S. No.1827-A/2, "A" ward, )
Near Tatakadil Talim, Shivaji Peth, )
Kolhapur. ) ..Appellant/Applicant
(Ori. Defendant)
Versus
1. Dr.Atul Sadashiv Kulkarni )
Age 42 yrs., Occ.Medical Practitioner )
2. Smt.Madhavi Sadashiv Kulkarni )
Age 71 yrs., Occ.Household )
Both having address at C.S. No.1827-A/2)
"A" ward, near Tatakadil Talim, )
Shivaji Peth, Kolhapur. )
3. Sou.Amita Pranish Deshigar )
Age 40 years, Occ-Household, )
Address at C-5,Vasant Vishwas Park, )
Deokar Panad "A" ward, Kolhapur. ) .. Respondents
(Ori.Plaintiffs)
---
Mr.Chetan G. Patil for the Appellant/Applicant.
Mr.Yuvraj P. Narvankar for the Respondents.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 23rd November 2016
PRONOUNCED ON : 15th December 2016
Judgment :-
ppn 2 sa-453.16(j).doc
. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellant (original defendant) has impugned the
judgment and decree dated 20th January, 2016 passed by the learned
District Judge-2, Kolhapur dismissing the Regular Civil Appeal No. 391
of 2013 filed by the appellant and confirming the judgment and decree
dated 7th September 2013 passed by the learned 3rd Joint Civil Judge,
Junior Division, Kolhapur in Regular Civil Suit No. 672 of 2012 filed by
the respondents herein (original plaintiffs) inter alia praying for
possession of the suit property i.e three rooms admesuring 12 x 7, 10 x 7
and 14 x 7 of the south north building out of C.S. No. 1827-A/2, A-ward,
Tatakadil Talim, Shivaji Peth, Kolhapur. The parties in this judgment are
described as per their original status in the suit filed by the original
plaintiffs before the learned trial Judge.
2. By consent of parties, the following substantial questions of
law are formulated as under:-
(i) Whether the issue as to question of valuation of the subject matter of
the suit ought to have been adjudicated upon by the Court of the
learned Civil Judge, Senior Division, Kolhapur in which the original
suit was instituted in view of Section 14 (1) of the Maharashtra
Court Fees Act, 1959?
(ii) Whether Article 65 or Article 64 or Article 113 of Schedule I
appended to the Limitation Act, 1963 would attract in the present
case?
3. Some of the relevant facts for the purpose of deciding this
second appeal are as under:-
ppn 3 sa-453.16(j).doc
4. It was the case of the plaintiffs that the suit property was
held by the father of the plaintiffs namely Sadashiv Ramchandra
Kulrkarni. Father of the plaintiffs expired on 12 th August 2005. After
demise of the said Sadashiv Ramchandra Kulkarni, the plaintiffs being
his legal heirs had become owners of the suit property. The plaintiff no.1
is son, the plaintiff no.2 is wife and the plaintiff no.3 is daughter of the
said Sadashiv Ramchandra Kulkarni. Father of the plaintiffs had filed
Regular Civil Suit No. 971 of 1994 in the Court of 3 rd Joint Civil Judge,
Junior Division, Kolhapur. The said suit was filed by the father of the
plaintiffs came to be decreed. The defendant was a party to the suit and
preferred a Regular Civil Appeal No. 379 of 2000 before the first
appellate Court. On 14th October, 2002, the first appellate Court allowed
the said appeal. It is not in dispute that one of the other parties to the said
proceedings impugned the said judgment and decree dated 14 th October
2002.
5. In the said judgment and decree passed by the first Appellate
Court, the learned 4th Additional District Judge, Kolhapur held that there
was no relationship of landlord and tenant between the defendant and
father of the plaintiffs. The defendant in the said suit had alleged that as
per the agreement between him and the father of the plaintiffs, the suit
property was mortgaged. The said defence of the defendant was not
accepted by the 4th Additional District Judge in the said judgment and
decree dated 14th October, 2002. Father of the plaintiffs during his life
time did not take any action against the defendant. It was the case of the
plaintiffs that after the plaintiffs became owners after demise of the
father, the plaintiffs on several occasions had requested the defendant to
ppn 4 sa-453.16(j).doc
vacate the suit property but the defendant on one pretext or the other
failed to vacate the suit property.
6. On 6th January 2010, the plaintiffs had issued a notice to the
defendant calling upon him to hand over possession of the suit property.
The defendant replied to the said notice and refused to hand over
possession of the suit property. The plaintiffs thereafter filed a suit
(Regular Civil Suit No. 672 of 2012) in the Court of 3 rd Joint Civil Judge,
Junior Division, Kolhapur inter alia praying for possession of the suit
property and cost.
7. The defendant filed a written statement and resisted the suit
on various grounds. The learned trial Judge framed eight issues for
adjudication. The parties led documentary as well as the oral evidence in
the said proceedings. By the judgment and decree dated 7th September,
2013, the learned trial Judge decreed the said suit and directed the
defendant to hand over vacant possession of the suit property to the
plaintiffs within three months from the date of the said order and directed
to pay cost.
8. Being aggrieved by the said judgment and decree dated 7th
September, 2013, the defendant preferred an appeal (Regular Civil
Appeal No. 391 of 1993) in the Court of District Judge-2, Kolhapur. The
learned District Judge-2, Kolhapur formulated eight points for
determination and passed a judgment and decree on 20 th January 2016
and dismissed the said Regular Civil Appeal No. 391 of 1993 filed by the
defendant and confirmed the decree and judgment dated 7 th September
ppn 5 sa-453.16(j).doc
2013 passed by the learned trial Judge. This judgment and decree dated
20th January 2016 passed by the learned District Judge-2, Kolhapur has
been impugned by the defendant in this second appeal filed under Section
100 of the Code of Civil Procedure, 1908.
9. It is submitted by the learned counsel for the defendant that
the defendant had specifically raised an issue in the written statement
filed by the defendant in respect of the valuation of the suit property
made by the plaintiffs and had disputed the correctness of the said
valuation of the suit made by the plaintiffs in the plaint. He submits that
the suit was initially filed in the Court of the learned Civil Judge, Senior
Division, Kolhapur. In view of the change of pecuniary jurisdiction to
entertain the suit by the Court of the learned 3rd Joint Civil Judge, Junior
Division, Kolhapur. He submits that the suit was initially filed in the
Court of Civil Judge, Senior Division, Kolhapur in view of Section 14 (1)
of the Maharashtra Court Fees Act, 1959 and thus the issue in respect of
valuation of the subject matter of the suit which was specifically raised by
the defendant in the written statement ought to have considered by the
Court of the learned Civil Judge, Senior Division Kolhapur at the
threshold and not by the Court of the learned 3rd Joint Civil Judge, Junior
Division, Kolhapur after the said suit was assigned to the said Court. He
submits that the entire decree passed by the learned 3rd Joint Civil Judge,
Junior Division, Kolhapur was thus vitiated. It is submitted that it was a
statutory duty of the learned trial Judge in whose Court the suit was
initially filed to determine the issue of valuation of the subject matter of
the suit in view of Section 14 (1) of the Maharashtra Court Fees Act,
1959.
ppn 6 sa-453.16(j).doc
10. In support of the aforesaid submission, the learned counsel
for the defendant placed reliance on the judgment of this Court in the case
of M/s. Shriji Builders through its partner Mrs. Anusuyaben Rasiklal
Gangani & Ors. Vs. M/s. Wibro Construction Company through its
Proprietor Mr. K. Abdulla & Anr., reported in 2004 Vol. 106 (4) Bom. L.
R. 704 and more particularly paragraphs 6 to 12 thereof.
11. The next submission of the learned counsel for the defendant
is that the suit filed for possession by the plaintiffs was barred by law of
limitation. It is submitted that Regular Civil Suit No. 971 of 1994 which
was filed by the father of the plaintiffs for possession on the ground of
landlord and tenant relationship under the provisions of the Bombay Rent
Control Act came to be dismissed by the First Appellate Court in Regular
Civil Appeal No. 379 of 2000 on 14 th October, 2002. He submits that the
second suit filed by the plaintiffs for possession against the defendant was
admittedly instituted on 2nd March, 2010 on the ground that the defendant
was alleged to have trespassed in the suit premises after the decision of
the Regular Civil Appeal No. 379 of 2000.
12. It is submitted that admittedly the earlier suit was filed by
the father of the plaintiffs on 1 st October 1994. The cause of action for
filing the second suit also had accrued on 1 st October 1994 and not when
the appeal filed by the defendant came to be allowed or when the father
of the plaintiffs died or when the notice of possession was issued by the
plaintiffs after demise of the father of the plaintiffs and the defendant
refusing to vacate the suit premises. He submits that cause of action once
having accrued on 1st October, 1994 itself, it did not stop. It is submitted
ppn 7 sa-453.16(j).doc
that the plaintiffs not having prosecuted the suit in good faith and with
due diligence, the plaintiffs were not entitled to invoke Section 14 of the
Limitation Act, 1963. In support of the submission, learned counsel for
the defendant placed reliance on the judgment of the Supreme Court of
the Rabindra Nath Samuel Dawson Vs. Sivkasi & Ors., reported in
(1973) 3 SCC 381 and in particular paragraph 4 thereof. Learned Counsel
also placed reliance on the judgment of the Supreme Court in the case of
Madhavrao Narayanrao Patwardhan, the State of Bombay Vs. Ram
Krishna Govind Bhanu & Ors., reported in AIR 1958 SC 767 and in
particular paragraphs 7 & 8 thereof.
13. It is submitted by the learned counsel for the defendant that
Article 65 of the Schedule to the Limitation Act, 1963 is not applicable.
The defendant had not claimed any adverse possession of the suit
property. He submits that the onus was on the plaintiffs to show that the
defendant had claimed adverse possession. He submits that no finding
has been rendered by any of the Courts below as to why Article 65 of the
Schedule to the Limitation Act, 1963 was attracted.
14. Learned Counsel for the defendant placed reliance on the
judgment of the Supreme Court in the case of H. Siddiqui (dead) by Lrs.
Vs. A. Ramalingam, reported in 2011 (4) Mh. L. J. 88 and in particular
paragraph 18 thereof in support of his submission that it is mandatory for
the appellate Court to independently assess the evidence of the parties
and consider the relevant points which arise for adjudication and the
bearing of the evidence in those points. He submits that in this case, the
first appellate Court, however, has not considered the evidence
ppn 8 sa-453.16(j).doc
independently and has confirmed the findings of the learned trial Judge in
toto. He submits that the impugned judgment and decree passed by the
first appellate Court is contrary to the provisions of Order XLI Rule 31 of
the Code of Civil Procedure, 1908.
15. Mr. Narvankar, learned counsel for the plaintiffs, on the
other hand, invited my attention to the written statement filed by the
defendant and would submit that the relationship of the landlord and the
tenant was specifically denied by the defendant in his written statement.
He also invited my attention to the averments made in the plaint in
support of the submission that the cause of action had arisen when the
defendant refused to hand over possession of the suit property upon
receipt of the notice dated 6th January 2010. He submits that the suit was
filed on 2nd March 2010 and was thus within the period of limitation
prescribed under the provisions of the Schedule to the Limitation Act,
1963. He submits that issue of limitation has been dealt with by both the
Courts below in a great detail and have rightly rejected the said plea of
limitation in the impugned judgments and decrees passed by two Courts
below. He submits that the defendant had urged before the learned trial
Judge that he was licensee of the plaintiffs.
16. Learned Counsel for the plaintiffs also invited my attention
to the findings recorded by the learned trial Judge on the issue of
limitation and more particularly in paragraph 40 of the judgment and
decree passed by the learned trial Judge. It is submitted by the learned
counsel for the plaintiffs that in support of the plea of 'gratuitous licensee'
raised by the defendant in the written statement, he did not produce any
ppn 9 sa-453.16(j).doc
license agreement. The learned trial Judge as well as the First Appellate
Court have rightly rejected the said plea of the defendant.
17. It is submitted by the learned counsel for the plaintiffs that
plea of jurisdiction or there being no cause of action raised by the
defendant in the written statement was totally vague and was only a
passing reference. He submits that the learned trial Judge thus was not
required to frame any specific issue thereon. In support of this
submission, learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in the case of Maria Margarida Sequira
Fernandes and Ors. Vs. Erasmo Jack De Sequeira (dead) through Lrs.,
reported in (2012) 5 SCC 370 and more particularly on paragraphs 53, 71
to 74 and 77 thereof.
18. In so far as the issue raised by the defendant that the
objection in respect of valuation of the suit claim could not have been
decided by the learned Civil Judge, Junior Division and ought to have
been decided by the learned Civil Judge, Senior Division is concerned, it
is submitted by the learned counsel that the suit which was originally
filed before the learned Civil Judge, Senior Division was transferred to
the learned Civil Judge, Junior Division in view of pecuniary jurisdiction
and thus that issue was rightly decided by the learned Civil Judge, Junior
Division. He distinguishes the judgment of this Court in the case of M/s.
Shriji Builders through its partner Mrs. Anusuyaben Rasiklal Gangani
and Ors. (supra) on the ground that the facts before this Court were
totally different and are clearly distinguishable.
ppn 10 sa-453.16(j).doc
19. Learned counsel for the plaintiffs also distinguishes the
judgments of the Supreme Court in the cases of H. Siddiqui (dead) by
Lrs. A Ramalingam (supra), Madhavrao Narayanrao Patwardhan &
Anr. (supra) and Rabindra Nath Samuel Dawson (supra) on the ground
that the plaintiffs were prosecuting the earlier suit in good faith and with
due diligence. He submits that the two Courts blow were thus right in
applying the provisions of Section 14 of the Limitation Act, 1963. He
submits that the learned District Judge, Kolhapur in Regular Civil Appeal
No. 379 of 2000 filed by the defendant herein in the earlier round of
litigation had specifically rendered a finding that there was no privity of
contract of tenancy between the plaintiffs and the defendant in respect of
the suit property. The defendant had failed to prove his contention that
the plaintiffs had mortgaged the property of their father. The plaintiffs
had failed to prove that the defendant was their tenant in respect of the
suit premises and that there was privity of contract of tenancy between
the plaintiffs and the defendant in respect of the suit property. He submits
that the first appellate Court in the said judgment and decree has held that
the provisions of Section 28 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 were not attracted in the instant case and
consequently, the said Court did not pass any decree for eviction against
the defendant under Section 28 of the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947 though the plaintiffs had succeeded in
proving their reasonable and bonafide need of the suit premises.
20. It is submitted that the learned Additional District Judge by
the said judgment and decree had allowed the appeal filed by the
defendant with such finding recorded therein and dismissed the suit filed
ppn 11 sa-453.16(j).doc
by the original plaintiff. It is not in dispute that the said order passed by
the Additional District Judge, Kolhapur on 14th October 2002 was not
challenged by any of the parties to the said suit and thus the findings
rendered by the first appellate Court in the said judgment and decree
attained finality.
21. Mr. Patil, learned Counsel for the defendant in his rejoinder
arguments distinguishes the judgments relied upon by the learned counsel
fro the plaintiffs on the ground that the defendant had raised various pleas
with details and particulars.
REASONS AND CONCLUSIONS:-
22. The learned trial Judge framed six issues in the impugned
judgment and decree. Both the parties had led oral and documentary
evidence before the learned trial Judge. The learned trial Judge held that
the plaintiffs had proved that the defendant was in unauthorised
possession of the suit property. The said suit was not barred by res-
judicata. It is also held that the plaintiffs were entitled to exclusion of
time under Section 14 of the Limitation Act, 1963. The plaintiffs were
entitled to seek possession of the suit property from the defendant. The
suit claim was properly valued by the plaintiffs in the plaint. It is also
held that the learned trial Judge had pecuniary jurisdiction to entertain,
try and dispose of the suit filed by the plaintiffs.
23. A perusal of the said judgment and decree passed by the
learned trial Judge clearly indicates that the learned trial Judge has
discussed each and every issue framed in a great detail and has also
ppn 12 sa-453.16(j).doc
considered the oral and documentary evidence led by both the parties.
The learned trial judge has also considered the several judgments
referred to and relied upon by both the parties and have rendered various
findings of facts.
24. Learned District Judge-2, Kolhapur by judgment and decree
dated 20th January 2016 dismissed the Regular Civil Appeal No.391 of
2013 filed by the defendant and confirmed the judgment and decree
dated 7th September 2013 passed by the 3 rd Joint Civil Judge, Junior
Division, Kolhapur in Regular Civil Suit No.672 of 2012. A perusal of
the said judgment and decree passed by the first appellate Court indicates
that the first appellate Court formulated eight points for determination.
25. In so far as the issue whether the learned Civil Judge, Junior
Division had jurisdiction to decide the suit is concerned, it is held by the
first appellate Court that the plaintiffs had originally filed the suit in the
Court of the learned Civil Judge, Senior Division, Kolhapur. In the
written statement and more particularly paragraph 11, the defendant
had raised an objection as to valuation of the suit claim and had filed
an application (exhibit-51). It was the case of the defendant that the
decision as to valuation taken by the 3rd Joint Civil Judge, Junior
Division, Kolhapur was not in accordance with Section 14(1) of the
Maharashtra Court Fees Act, 1959 read with paragraph 233 of the Civil
Manual, Volume I. The suit which was filed in the Court of the learned
Civil Judge, Senior Division, Kolhapur was allotted to the Court of the
learned Civil Judge, Junior Division. It was urged by the defendant that
since the plaintiffs had filed a suit in the Court of the learned Civil
ppn 13 sa-453.16(j).doc
Judge, Senior Division and an objection as to the valuation having been
raised, the learned Civil Judge, Senior Division was bound to decide the
objection as to the valuation and not the Court of the learned Civil
Judge, Junior Division merely because the suit was allotted to it.
26. After considering the submission of both the parties and
after adverting to various judgments relied upon by both the parties, the
first appellate Court on this issue held that the suit was valued by the
plaintiffs for the purpose of jurisdiction and Court fees @ Rs.2 lacs. The
said suit was allotted to the Joint Civil Judge, Senior Division in view of
the fact that jurisdiction of the learned Civil Judge, Junior Division was
upto Rs.1 lac. The jurisdiction of the learned Civil Judge, Junior
Division was subsequently raised from Rs.1 lac to Rs.5 lacs in the year
2012 and thus the suit came to be transferred from the Court of the
learned Civil Judge, Senior Division, Kolhapur to the Court of the
learned Civil Judge, Junior Division as per the order dated 20 th January
2012. The said transfer was effected in view of the order passed by the
2nd Joint Civil Judge, Senior Division, Kolhapur below Exhibit-1.
Learned Civil Judge, Senior Division while passing the said order had
considered the letter dated 5th January 2012 issued by the High Court
and the letter dated 9th January 2012 issued by the District Court relating
to the transfer of the pending suit to the appropriate Court having
jurisdiction in view of enhancement of the pecuniary jurisdiction of the
Court of the learned Civil Judge, Junior Division.
27. It is not in dispute that the defendant had filed an
application under Order VII Rule 11(d) of the Code of Civil Procedure,
ppn 14 sa-453.16(j).doc
1908. By an order dated 20th January 2011, the learned Civil Judge,
Senior Division rejected the said application. The defendant thereafter
filed another application and had raised an issue about valuation of the
suit and pecuniary jurisdiction. The said application was allowed by
the Court. Both the parties were given an opportunity to lead evidence
on the issue relating to valuation of the suit and pecuniary jurisdiction.
The said issue had been considered by the learned trial Judge while
deciding issue nos.5 and 6. The learned trial Judge also considered the
oral evidence of Mr.Atul Sadashiv Kulkarni who had stated as to how
the said suit was valued and market value was derived. The plaintiffs
had also examined the Government Approved Valuer who had submitted
his valuation report. The defendant did not examine himself on the point
of valuation but filed Index II extract.
28. The first appellate Court considered the fact that the
plaintiffs had claimed possession of three rooms only. The defendant
had filed an application (exhibit-11) but did not raise the point of
valuation and pecuniary jurisdiction and accepted the jurisdiction of the
said Court till fag end and when the evidence on all issues had been
adduced by both the parties. The application (exhibit-51) had been filed
belatedly. The trial Court had rendered an opportunity to both the parties.
After considering the evidence and the submissions made across the bar
by both the parties, the learned trial Judge held that the valuation of the
suit property was made properly by the plaintiffs. In my view, the first
appellate Court thus rightly rejected this contention raised by the
defendant by rendering detailed reasons in the impugned judgment and
decree.
ppn 15 sa-453.16(j).doc
29. A perusal of the record clearly indicates that the suit was
initially in the Court of Civil Judge, Senior Division on the basis of the
valuation of the suit of Rs.2 lacs made by the plaintiffs in the plaint for
the purpose of jurisdiction and court fees. The jurisdiction of the Civil
Judge, Junior Division was admittedly raised from Rs.1 lac to Rs.5 lacs in
the year 2012. The learned second Joint Civil Judge, Senior Division,
Kolhapur after referring to the order passed by the High Court dated 5 th
January, 2012 and the letter of the District Court dated 9 th January, 2012
withdrew the said suit from the file of the 2 nd Joint Civil Judge, Senior
Division, Kolhapur and transferred the said suit to the Court of the
learned Civil Judge, Junior Division, Kolhapur. It is not in dispute that
the defendant had filed an application under Order VII Rule 11(d) of the
Code of Civil Procedure, 1908, raising an issue of jurisdiction which was
rejected by the learned Civil Judge, Senior Division, Kolhapur by an
order dated 20th January, 2011.
30. The defendant also filed an application raising an issue of
valuation of the suit and pecuniary jurisdiction. The said application was
allowed by the Court and both the parties were given opportunities to
lead evidence on the issue relating to the valuation and pecuniary
jurisdiction. The plaintiff no.1 examined the Government approved
valuer to prove the contents of the valuation report. The defendant
however did not examine any witness on the issue of valuation. In my
view, the two Courts below thus rightly rendered a finding on the issue of
valuation and rightly rejected the contention of the defendant.
31. Insofar as the judgment of this Court in case of M/s.Shriji
Builders (supra) relied upon by the learned counsel for the defendant is
ppn 16 sa-453.16(j).doc
concerned, a perusal of the said judgment indicates that the plaintiffs in
that suit had valued the suit at Rs.12,000/- though the plaintiffs had
challenged the validity of a sale deed, which was valued at Rs.50 lacs.
The Clerk Incharge of the allotment of the suit, allotted the said suit to
the file of the learned Civil Judge, Junior Division on the basis of the fact
that the plaintiffs had valued the subject matter of the suit below Rs.1 lac
and in view of section 20 of the Goa Civil Courts Act, 1965. The
defendant raised an objection to the valuation of the suit and prayed that
the plaintiffs be directed to correct the value of the plaint to Rs.50 lacs.
The defendant in the alternate prayed for rejection of the plaint under 7
rule 11(d) of the Code of Civil Procedure, 1908.
32. The learned Civil Judge, Junior Division in that matter
rejected the plaint under Order VII Rule 11(d) of the Code of Civil
Procedure, 1908. The plaintiffs had conceded before the Court that they
had under valued the suit. The trial Court also rendered a finding that the
plaintiffs had under valued the suit. This Court accordingly held that the
requirement of section 12 of the Court Fees Act, 1870 could not have
been ignored because of ministerial decision to place the suit before the
learned Civil Judge, Junior Division. In these facts, this Court held that
the learned Civil Judge, Junior Division to which the suit was allotted by
the Clerk Incharge for allotment of suit could not have decided the issue
of valuation but the said issue ought to have been decided by the learned
Civil Judge, Senior Division. However, in the facts of this case, pecuniary
jurisdiction of the learned Civil Judge, Junior Division was enhanced and
the suit was transferred pursuant to the decision taken by this Court and
by the District Court. The application under Order VII Rule 11(d) of the
ppn 17 sa-453.16(j).doc
Code of Civil Procedure, 1908 filed by the defendant was rejected. In my
view, the judgment of this Court in case of M/s.Shriji Builders (supra)
thus would not assist the case of the defendant and is clearly
distinguishable in the facts and circumstances of this case.
33. Insofar as the issue of limitation raised by the defendant is
concerned, a perusal of the judgment and decree passed by the learned
District Court, Kolhapur in Regular Civil Appeal No.379 of 2000, which
was filed by the defendant herein arising out of the decree passed by the
learned Civil Judge, Junior Division, Kolhapur in the suit for possession
filed by the father of the plaintiff no.1 clearly indicates that it was the
case of the father of the plaintiff no.1 in that suit that the defendant was a
tenant of the suit premises and had not paid the rent. It was also urged by
the father of the plaintiff no.1 in that suit that the premises were required
bonafide by the father of the plaintiff no.1. It was pleaded by the
defendant that the plaintiff no.1 had mortgaged the suit property to his
father. Learned 4th Additional District Court, while allowing the appeal
filed by the defendant herein rendered specific finding that the plaintiffs
therein had failed to prove the relationship of the landlord and the tenant
between him and the defendant. The defendant also had failed to prove
that the plaintiff no.1 therein had mortgaged the suit property to his
father.
34. It is not in dispute that the father of the plaintiff no.1 did not
challenge the said decree holding that he had failed to prove the
relationship of the landlord and the tenant between him and the
defendant.
35. A perusal of the order passed by the first appellate Court,
ppn 18 sa-453.16(j).doc
which is the subject matter of this appeal clearly indicates that the first
appellate Court has held that though the relief in both the suits were for
possession of the suit property by the owner, the cause of action in
respect of both the suits were different. It is held that after the demise of
the father of the plaintiff no.1 when the plaintiff no1 became the owner of
the suit property, he had called upon the defendant to hand over
possession of the suit property. It was the case of the plaintiffs that the
possession of the defendant in respect of the suit property was adverse to
the title of the plaintiffs and cause of action arose when the learned
District Judge in the appeal filed by the defendant in the earlier round of
litigation rendered a finding that there was no relationship of the landlord
and the tenant between the parties and the defendant had also having
failed to prove that the property was mortgaged by the plaintiff no.1 in
favour of his father. The learned trial Judge as well as the first appellate
Court held that Article 65 of the Schedule to the Limitation Act, 1963
would be attracted and the suit for possession could be filed within 12
years from the date of decree passed by the learned District Judge in
Regular Civil Appeal No.379 of 2000. For the reasons recorded aforesaid,
I do not find any infirmity with the order passed by the learned trial Judge
as well as the first appellate Court insofar as the issue of limitation is
concerned.
36. Insofar as the judgment of the Supreme Court in case of
Rabindra Nath Samuel Dawson (supra) and in case of Madhavrao
Narayanrao Patwardhan (supra) relied upon by the learned counsel for
the defendant in support of his submission that the plaintiffs had not
satisfied the conditions of section 14 of the Limitation Act, 1908 and the
ppn 19 sa-453.16(j).doc
earlier proceedings not having been filed in good faith and not having
been prosecuted with due diligence is concerned, in my view since the
cause of action in both the suits were different, there is no merit in this
submission of the learned counsel for the defendant. The first appellate
Court rightly held that the cause of action for filing the second suit for
possession was based on Article 65 of the Schedule to the Limitation Act
and the suit could be filed 12 years from the date of the decree passed by
the learned District Court in the earlier round of litigation.
37. Be that as it may, since the case of the plaintiffs in the earlier
suit was that the defendant was their tenant and the said plea was not
accepted by the first appellate Court in the said decree, the plaintiffs were
entitled to seek exclusion of time under section 14 of the Limitation Act,
1963, the plaintiffs having prosecuted the said proceedings in good faith
and with due diligence. The judgment of the Supreme Court referred to
aforesaid thus would not assist the case of the defendant.
38. Insofar as the first substantial question of law formulated by
this Court in paragraph 2 of the aforesaid judgment is concerned, in my
view the said civil suit filed by the original plaintiffs having been
transferred to the Court of the learned Civil Judge, Junior Division,
Kolhapur in view of the enhancement of the pecuniary jurisdiction
pursuant to the directions issued by this Court and the District Court, the
said issue is answered in negative. The issue regarding valuation of the
suit claim has been rightly decided by the learned Civil Judge, Junior
Division, Kolhapur.
39. Insofar as the second substantial question of law formulated
ppn 20 sa-453.16(j).doc
by this Court is concerned, in my view, Article 65 of Schedule-I
Appended to the Limitation Act, 1963 would be attracted in the present
case. Question is answered accordingly.
40. In my view, both the Courts below have rendered the
findings of fact which are concurrent and being not perverse, cannot be
interfered with by this Court in this second appeal filed under section 100
of the Code of Civil Procedure, 1908. The appeal is devoid of merits.
41. I therefore, pass the following order :-
a) Second Appeal No.453 of 2016 is dismissed;
b) In view of dismissal of Second Appeal No.453 of 2016, Civil
Application No.920 of 2016 does not survive and is accordingly
dismissed;
c) There shall be no order as to costs.
R.D. DHANUKA, J.
42. At this stage, Mr.Patil, learned counsel appearing for the
appellant seeks stay of the operation of the execution of the impugned
decree as well as the order passed by this court today for a period of eight
weeks from today. Mr.Narvankar, learned counsel for the respondents
states that his client will not execute the impugned decree passed by the
learned trial judge for a period of six weeks from today. Statement is
accepted.
ppn 21 sa-453.16(j).doc
43. If any Special Leave Petition is filed by the appellant, copy
of the papers and proceedings of the said Special Leave Petition and the
notice thereof shall be served upon the respondents in advance.
R.D. DHANUKA, J.
