Bombay High Court
Smt.Sakhubai Wd/O Hansraj ... vs Motiram Gangaram Vakhare on 29 February, 2016
Bench: A.B. Chaudhari
sa.357.98
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 357 /1998
1) Smt. Sakhubai wd/o Hansraj Chinchurkar
Aged about 55 years, occu: Agriculturist
R/o Pangadi Tq. Ghatanji Dist. Yavatmal
2) Shankar s/o Hansraj Chinchurkar
Aged about 55 years, occu: Agriculturist
R/o Pangadi Tq. Ghatanji Dist. Yavatmal
3) Raju s/o Hansraj Chinchurkar
Aged about 19 years, occu: student
R/o Pangadi Tq. Ghatanji Dist. Yavatmal
4) Sau. Meerabai w/o Vithalrao Darekar
Aged about 36 years, occu: household work
R/o Babulgaon Tq.babulgaon
dist. Yavatmal.
5) Sau.Laxmibai w/o Shankar Parekh
Aged about 33 years, occu: hosuehold work
R/o Warud, Tq.Babulgaon Dist. Yavatmal.
6) Sau.Kantabai w/o Ramdas Milmile
aged about 28 years, occu: hosuehold work
R/o Kotamba Tq.babulgaon Dist.yavatmal.
7) Sau.Shanta w/o ManikraoMilmile
Aged about 25 years, occu: Hosuehold work
R/o Kotamba Tq.babulgaon Dist. Yavatmal.
8) Sau.Kala w/o Suresh Kumbhare
Aged about 23 years, occu: hosuehold work
R/o Pangadi Tq. Ghatanji Dist. Yavatmal
9) Sau. Leela w/o Bhagwan Virtukar
Aged about 21 years, occu: hosuehdold work
R/o Pangadi Tq. Ghatanji Dist. Yavatmal ... APPELLANTS
sa.357.98
v e r s u s
Motiram s/o Gangaram Vakhare
Aged about 45 years, occu: Agriculturist
R/o Pangadi Tq.Ghatanji Dist. Yavatmal. .. ... RESPONDENT
...........................................................................................................................
Mr. M.I. Dhatrak, Advocate for the appellants
None for respondent
............................................................................................................................
ig CORAM: A.B.CHAUDHARI, J
.
DATED : 29th February, 2016
ORAL JUDGMENT:
1. Being aggrieved by the judgment and decree dated 7th July
1994 in Civil Appeal No.90/1991 passed by the learned 3rd Additional
District Judge, Yavatmal, by which the lower Appellate Court set aside
the judgment and decree dated 3rd July, 1991 passed by Civil Judge
Junior division, Kelapur in Regular Civil Suit No.111/1989 dismissing
the suit of the appellant/plaintiff throughout, the present Second Appeal
was preferred by the unsuccessful original plaintiff.
2. In support of the Appeal, Mr. M.I. Dhatrak, learned counsel for
the appellants contended that the judgment and decree of the lower
Appellate Court was passed against a dead person i.e. Hansraj who has
expired on 24.11.1991. According to him, on 15.12.1994 an Application
sa.357.98
for bringing legal representatives of deceased-Hansraj on record, was
allowed by the lower Appellate Court but, in fact, the L.Rs. of Hansraj
were never brought on record, whereas the Court still delivered the
judgment in question against Hansraj and, as such, the judgment amounts
to judgment against a dead person, which is void in law. He then contended
that there is a concurrent finding of fact recorded by both the Courts below
that the appellant was the owner of the suit plot, of which half portion was
sold, on the northern side half portion remained with the appellant, being
owner and possessor thereof. According to Mr. Dhatrak, learned counsel for
the appellants the trial Judge recorded a categorical finding that the
respondent/ original defendant did not prove that he was a tenant nor there
were sufficient pleadings from the respondent that he was a tenant. There
was no proof adduced that he was a tenant of the remaining northern side
plot belonging to the appellant and, therefore, the Appellate Court should
not have disturbed the finding of fact recorded by the trial Judge. He then
submitted that the judgment and decree of the trial Judge is required to be
restored and that of the lower Appellate Court is required to be set aside.
3. None appears for the respondent, though served.
4. I frame the following substantial questions of law upon hearing
the learned counsel for the appellants at length and upon going through
the entire record:
sa.357.98
A) Whether the judgment and decree passed by the lower
Appellate Court is one against the dead person-Hansraj since in
effect legal representatives of Hansraj were not brought on
record? .. Yes.
B) Whether the lower Appellate Court has erred in law in
reversing the finding of fact recorded by the trial Judge and
holding that the respondent was a tenant of remaining northern
portion of the plot owned by the appellant ? ..Yes.
What order ?
ig Second Appeal is allowed.
4. I have gone through the pleadings and evidence tendered by
the parties.
5. As to the first question, I find from the record that Hansraj/
original plaintiff succeeded the trial court inasmuch as the decree for
possession was passed in his favour, by the Civil Judge Jr. Division, Kelapur
on 3.7.1991. Hansraj admittedly expired on 24.11.1991 i.e. during the
pendency of the Civil Appeal No.90/1991, before the District Judge, Yavatmal.
An application for bringing the legal representatives of Hansraj on record
was filed and was also allowed on 15.2.1994 by the lower Appellate Court.
However, the legal representatives were not brought on record nor were
they represented, but the lower Appellate Court proceeded to decide the
Appeal on merits without taking into consideration the fact that Legal
representatives were actually not brought on record nor were notices issued,
sa.357.98
nor they were represented before the lower Appellate Court. Without noting
this position, the lower Appellate Court went ahead and passed the impugned
judgment and decree against Hansraj, by judgment and decree dated 7 th July
1994. Obviously therefore, the judgment was made by the lower Appellate
Court against a dead person. Hence, the judgment and decree must be
held to be a nullity in law. Hence the question No.,1 is answered in the
affirmative.
6.
Taking up the next question, I find that the trial Judge
recorded a categorical finding in para no.10 of his judgment, which I quote
herein-below :-
" 10. The defendant has contended that since the year 1973 he is
possessing suit plot as a tenant. Except a single oral statement of
defendant, there is no other evidence either documentary or oral
in order to show that the defendant is possessing suit plot as a
tenant. The mere oral statement of the defendant that he is
possessing suit plot as a tenant is not at all believable. There is
not a single receipt of rent paid by the defendant to plaintiff and
so, in the absence of documentary evidence in respect of tenancy,
oral evidence of defendant in that regard is not believable at all.
There is no evidence to prove the defendant is possessing suit plot
as a tenant. As the defendant is not possessing suit plot as a
tenant, the provisions of Rent Control Act are not applicable and
therefore a permission of Rent Controller for filing the present suit
is not necessary at all. The suit is legally maintainable. ..."
sa.357.98
In contrast, the lower Appellate Court in that behalf, recorded
the following finding in para no.8 which I quote herein-below :-
"8. There is no document in this case about the tenancy.
Documentary evidence in the form of rent receipts is also not
available. The words against the words of the parties are available.
The trial Court has not considered the case from all angles and
failed to give the reasoning. The evidence of the parties is also
most cryptic. In this state of affairs the case is to be considered in
the light of the documents on the preponderance of probabilities."
It is clear from the lower Appellate Court's finding that the
finding that it was aware that except for the words against the words, there
was no satisfactory evidence to show that the respondent/defendant had
proved that he was a tenant. In my opinion, the finding recorded by the trial
Judge quoted above, is clearly based on the set principles of of
preponderance of probabilities. On the contrary, the finding in para no.8
recorded by the lower Appellate Court is clearly perverse since the burden
of proof that the respondent/defendant was tenant squarely rested on him
and to hold that the lower Appellate Court accepted the words of the
respondent that he was a tenant, would be an preposterous proposition.
There ought to have been some evidence to the satisfaction of the Court to
record a finding about the respondent being a tenant and necessary details
thereof. Not a single evidence was produced that any rent was paid in the
presence of any person or by any mode or the date on which the agreement
sa.357.98
of tenancy was created. The lower Appellate Court went on surmises,
conjectures and guess-work that there could be oral agreement for creation
of tenancy. That is not for the lower Appellate Court but for the parties to
plead. The finding that the respondent was a tenant on the remaining
portion of the plot is perverse ad must be set aside. The question No.2 is
therefore obviously would be in affirmative. In the result the Appeal must
succeed. Hence the order :
ig ORDER
1) Second Appeal No. 357/1998 is allowed.
2) The judgment and decree dated 7.7.1994 in Regular Civil Appeal
No.90/1991 passed by the learned 3rd Additional District Judge,
Yavatmal, is set aside.
3) The judgment and decree dated 3.7.1991 in Regular Civil Suit
No. 111/1989 passed by learned Civil Judge, Jr.Dn. Kelapur, is
restored.
4) No order as to costs.
JUDGE
sahare
