Ishwarsingh Lalchandsingh ... vs Shantabai Shriram Bedere & 2 ...
2016 Latest Caselaw 615 Bom

    Judgment 
                                                Second Appeal No.380 of 2004




                                                                       
                                    1




                                               
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
               NAGPUR BENCH, NAGPUR

                       SECOND APPEAL NO.380 OF 2004




                                              
    1) Ishwarsing S/o Lalchandsing
    Balode, aged major, occupation
    Agriculturist.




                                    
    2) Kishorsing S/o Lalchandsing
                              
    Balode, aged major, occupation
    Agriculturist.
                             
    3) Bharatsing S/o Lalchandsing
    Balode, aged major, Occupation
    Agriculturist, dead, thr LRs
      


         3)(i) Sau. Kamlabai Bhagatsingh Balode,
         Aged 60 years, Occupation housewife.
   



         3(ii) Govindsingh Bhagatsingh Balode
         Aged 40 years, Occupation contractor.





         3(iii) Anandsingh Bhagatsingh Balode,
         Aged 35 years, Occupation Nagar Sewak.

         All 3(i) to 3(iii) are R/o Hingna Road,





         Balode Layout, Tahsil and 
         District Akola - 444 004 (Mah.).

         3(iv) Sau. Sunita w/o Anand Ghodele,
         Aged about Major, 
         Occupation Nagar Sewika,


                                                                        .....2/-




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     Judgment 
                                                        Second Appeal No.380 of 2004




                                                                               
                                           2




                                                       
         R/o C/o Anand Ghodele, Nagar Sewak,
         Padampura, Aurangabad.

    4) Kapursing S/o Lalchandsing




                                                      
    Balode, aged major, Occupation
    agriculturist.

    5) Gopalsingh S/o Lalchandsing Balode,




                                           
    Aged major, occupation agriculturist.

         LRs of appellant No.5
                              
         5(i) Smt. Sunita Gopalsingh Balode,
         Aged about 45 years, 
                             
         Occupation housewife.

         5(ii) Priti Gopalsingh Balode,
         Aged about 28 years,
      


         Occupation private service.
   



         5(iii) Prayank Gopalsingh Balode,
         Aged about 22 years,
         Occupation education.





    All R/o Balode Layout, Hingna
    Road, Kaulkhed, Akola, Tahsil
    and District Akola.                                     ..... Appellants.





                                    ::   VERSUS   ::

    1. Shantabai Shriram Badere, (Dead)
    Aged about 71 years, Occupation 
    Household work.



                                                                                .....3/-




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     Judgment 
                                                 Second Appeal No.380 of 2004




                                                                        
                                     3




                                                
         Through LRs
         1(a) Baiju Shriram Badere
         Aged about 45 years.




                                               
         1(b) Mohan Shriram Badere
         Aged about 40 years.

         1(c) Smt. Sangita Anil Badere,




                                    
         Aged Major.

         1(d) Nitin Anil Badere
         Aged about 20 years.
                              
                             
         1(e) Roshan @ Sunny Anil Badere,
         Aged about 15 years, minor
         thorugh Natural guardian mother
         Smt. Sangita Anil Badere
      


         all Residents of Hingna Road,
         Kaulkhed, Post Gandhinagar, 
   



         Tahsil & District Akola.

         1(f) Smt. Kiran Pandurangji Pardesi,
         Aged Major, resident of 





         Dhankawadi, Last Bus Stop, Near
         Jai Bhavani Industries, 
         Pune-411 043.





    2. Sau. Vandana Sainath Jadhav
    Aged about 30 years, occupation
    house work.


    Both R/o Hingna Road,
    Kaulkhed, Akola, Tahsil 

                                                                         .....4/-




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     Judgment 
                                                           Second Appeal No.380 of 2004




                                                                                 
                                            4




                                                         
    and District Akola.                            ..... Respondents.
    ==============================================

Shri A.A. Naik, Counsel for Appellant Nos.1, 2, 4, & 5(i to III). Shri H.R. Gadhia, Counsel for Appellant Nos.3(i) to 3(iii). Shri J.B. Gandhi, Counsel for LRs of Respondent No.1.

==============================================

CORAM : A.B. CHAUDHARI. J.

DATED : MARCH 15, 2016.

ORAL JUDGMENT

1. Being aggrieved by the judgment and decree

dated 17.3.2003 passed by learned 3rd Joint Civil Judge

Junior Division, Akola, in Regular Civil Suit No.620 of 1999,

confirmed in appeal on 17.6.2004 by learned 2nd Ad-hoc

Additional District Judge, Akola, in Regular Civil Appeal

No.135 of 2003 the present second appeal was filed by the

unsuccessful plaintiff.

2. On 7.12.2006, this Court has, at the time of

admission of the second appeal, framed the following

substantial question of law :

.....5/-

Judgment Second Appeal No.380 of 2004

Whether the lower Appellate Court was legally justified in holding that defendant No.1 has become owner by adverse possession of the suit property when

requisite details about adverse possession were neither pleaded nor proved?

In addition, I frame one more substantial

question of law, thus :

Whether the lower Appellate Court committed an error in performing the duty as Appellate Court to frame the points for

determination on all the issues answered in

the Trial Court and in particular about the ownership of the appellants/plaintiff and the possession of respondent Shantabai

over the suit property and in what character?

3. I have heard learned counsel for the parties at

length. I have perused the reasons recorded by the Courts

below in their respective judgments. Learned Trial Judge

.....6/-

Judgment Second Appeal No.380 of 2004

while deciding the case had framed the following issues :

1) Do the plaintiffs prove to be the owners of the suit property?

2) Do they prove to have let the defendant to occupy it as a licensee?

3) Do they prove to have saved the defendant from a prosecution by accepting

consideration of a sale of a part of the suit property?

4) Do they prove that the defendant manipulated Government record for her benefit?

5) Do they prove to have revoked licence of the defendant?

6) Does the defendant prove herself to be in possession of the suit property as an owner since 1967?

7) Is the suit properly valued? If yes, what is its effect?

8) What reliefs and costs?

9) Whether the suit is within limitation against the defendant No.2?

.....7/-

Judgment Second Appeal No.380 of 2004

4. From perusal of the above, it is clear that learned

Trial Judge answered issue No.1 that the plaintiffs had

failed to prove that they were the owners of the suit

property and that the defendant was the licencee though

learned Trial Judge held in answer to issue No.6 that the

defendant was in possession of the suit property as owner

since 1967. These are the important issues which arose for

adjudication before learned Trial Judge.

5. It is pertinent to note here that learned Trial

Judge did not frame any issue about defendant occupied the

suit property by way of adverse possession. Even in the

alternative, adverse possession is a plea as is the trite law

which is required to be thoroughly pleaded and proved for

which the parties are required to have appropriate notice by

way of pleading since mere long possession does not

constitute adverse possession. All the more so, when the

.....8/-

Judgment Second Appeal No.380 of 2004

plea was taken by the plaintiffs that the defendant was a

licencee.

6. Be that as it may, though learned Trial Judge

answered all the issues, he did not hold anything about

adverse possession.

7. The lower Appellate Court framed the following

points for determination :

1) Is it proved by the plaintiffs that suit

property came in possession of their father Lalchandsing in family partition effected between 3 brothers in the year 1979?

2) Whether the status of defendant No.1 over the suit premises could be regarded as licensee of plaintiff's father and ancestors?

3) Whether defendant No.1 has proved her title over the suit property by way of adverse possession?

4) Whether the original suit filed was within limitation?

.....9/-

Judgment Second Appeal No.380 of 2004

5) What order?

It is clear from the reading of above referred

points for determination that the lower Appellate Court did

not frame any point as to whether the plaintiffs failed to

prove their title. The lower Appellate Court, however,

framed point No.3 as to whether defendant No.1 occupied

the suit property by way of adverse possession.

8. As discussed above, there was no issue about

adverse possession framed by learned Trial Judge nor any

answer was given whereas in answer to point No.3 the lower

Appellate Court recorded a categorical answer that there

was adverse possession of defendant No.1.

9. Though learned counsel for the respondents Shri

J.B. Gandhi made attempt to show that nevertheless the

.....10/-

Judgment Second Appeal No.380 of 2004

lower Appellate Court has discussed the evidence on record

that the findings given by the lower Appellate Court are

concurrent with the findings given by the Trial Court that

the plaintiffs had failed to prove their title, in my view the

attempt made by learned counsel Shri Gandhi may appeal to

one. But, reading of the judgment of the lower Appellate

Court does not show recording of categorical finding that

the plaintiffs had failed to prove their title. On the contrary,

the reasoning given by the Appellate Court denotes that

respondent Shantabai was having adverse possession. As

contended by learned counsel Shri J.B. Gandhi, there is no

scope for this Court to draw inferences from the finding

recorded by the lower Appellate Court since the lower

Appellate Court, being the fact-finding Court and concrete

findings based on facts and evidence must be recorded. In

other words, the lower Appellate Court could have recorded

a categorical finding that the plaintiffs had failed to prove

.....11/-

Judgment Second Appeal No.380 of 2004

their case or otherwise. Moreover, the lower Appellate

Court could not have framed the point for determination

about adverse possession when the issue was never framed

before the Trial Court. However, the answer to point has

been given by the lower Appellate Court that defendant No.1

proved her title by way of adverse possession.

10. In that view of the matter, I am of the considered

opinion that there is a failure on the part of the lower

Appellate Court as a Court of facts on all the issues arriving

in the suit. None of the parties should lose the benefit of

adjudication and the findings on the material issues from

the first Appellate Court.

11. That being so, I answer question No.2, which is

additionally framed by me, in the affirmative and also hold

that there is no need to answer question No.1, which was

.....12/-

Judgment Second Appeal No.380 of 2004

framed by this Court at the time of admission of the second

appeal, since the same is now left for the decision by the

lower Appellate Court in accordance with law and subject to

the objections, if any, raised before it. In that view of the

matter, the following order is passed.

ORDER

1) Second Appeal No.380 of 2004 is partly

allowed.

2) The impugned judgment passed by learned 2nd

Ad-hoc Additional District Judge, Akola, on

17.6.2004, in Regular Civil Appeal No.135 of

2003 is set aside.

3) The record and proceedings of this appeal is

remitted to the lower Appellate Court.

.....13/-

Judgment Second Appeal No.380 of 2004

4) The parties shall appear before the lower

Appellate Court on 13.6.2016 and to abide by its

further directions in the matter. The lower

Appellate Court shall proceed to frame the proper

points for determination.

5) Advocate appearing before the lower Appellate

Court are at liberty to file draft points for

determination, if they are so advised, and the

lower Appellate Court shall consider and finalize

the points for determination.

6) Upon finalization of the points, the lower

Appellate Court shall attempt to hear and dispose

of the appeal in view of the observations made by

this Court in accordance with law afresh as

.....14/-

Judgment Second Appeal No.380 of 2004

expeditiously as possible and in any case

preferably within a period of six months from the

date of appearance of the parties before it.

7) The parties are directed to maintain the status

quo till the appeal is decided.

JUDGE

!! BRW !!

...../-