Smt. Sayatribai @ Prabhawati ... vs Kisan S/O. Vitthal Langde/
2016 Latest Caselaw 148 Bom

                                                                                                                   sa.202.01
                                                                 1




                                                                                                                   
                                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 





                                                                                        sa.202.01





                                                                                        

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

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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."

sa.202.01

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

sa.202.01

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

sa.202.01

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
    



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