Bombay High Court
Shri. Sanjay Jairam Shinde vs Shri. Jairam Sonu Shinde on 17 November, 2016
Bench: R.D. Dhanuka
sa564-13
Vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.564 OF 2013
WITH
CIVIL APPLICATION NO.1314 OF 2013
IN
SECOND APPEAL NO.564 OF 2013
1. Shri Sanjay Jairam Shinde, )
Age 42 years, Occupation Garage )
)
2. Sou.Smita Sanjay Shinde, )
Age 34 years, Occupation Household, )
ig )
Both residing at S.No.191, Zopadi )
No.994, Near Saibaba Temple, )
Nagpur Chawl, Yerwada, Pune ) ...Appellants
Ori. Defendants
....Versus....
Shri Jairam Sony Shinde )
Age 68 Years, Occupation Retired )
Residing at Block No.95/85, S.No.666 )
Kirloskar Housing Society, )
Madhadev Nagar, Hadapsar, Pune. ) ...Respondent
Ori. Plaintiff
Mr.P.D. Pise for the Appellants.
Mr.Gautam Kanchanpurkar with Mr.Ramdas Shelke for the
Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 24TH OCTOBER, 2016
PRONOUNCED ON : 17TH NOVEMBER, 2016
JUDGMENT :-
1. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellants (original defendants) have impugned
sa564-13
the judgment and decree dated 22nd December, 2011 passed by the
learned District Judge - 14 and Additional Sessions Judge, Pune,
dismissing Civil Appeal No.489 of 2010 filed by the appellants
thereby impugning the judgment and decree dated 20th April, 2010
passed by the learned trial Judge, passing a decree in favour of the
respondent (original plaintiff) inter-alia praying for possession of the
suit premises i.e. Hutment bearing No.994, situated at Nagpur
Chawl, Yerwada, Pune - 411006 in Regular Civil Suit No.1762 of
2007. Some of the relevant facts for the purpose of deciding this
second appeal are as under :
2. The appellant no.1 is the son of the respondent. The
appellant no.2 is the daughter in law of the respondent. The suit
premises is situated in a protected slum area of the Government and
is under the control of the Pune Municipal Corporation. The suit
premises is not owned by the respondent, but vests in the
Government or Pune Municipal Corporation.
3. It was the case of the respondent that he had
permitted the appellants to occupy the suit premises along with
him, due to love and affection for his son and daughter in law.
The appellants however, dispossessed the respondent. The
respondent accordingly filed a suit bearing Regular Civil Suit
No.1762 of 2007 before the learned 8th Civil Judge, Senior
sa564-13
Division, Pune, inter-alia praying for possession of the suit
premises against the appellants.
4. The suit was resisted by the appellants on various
grounds, including on the ground of limitation. The learned trial Judge
framed three issues. Both the parties led oral as well as documentary
evidence. By a judgment and decree dated 20 th April, 2010, the
learned trial Judge decreed the said civil suit filed by the respondent
and directed the appellants to hand over possession of the suit
premises to the respondent within three months from the date of the
said judgment and decree. Being aggrieved by he said judgment and
decree dated 20th April, 2010, passed by the learned trial Judge, the
appellants herein field an appeal (Civil Appeal No.489 of 2010)
before the learned District Judge - 14 and Additional Sessions
Judge, Pune.
5. The learned District Judge formulated three points for
determination. By a judgment and decree dated 22 nd December,
2011, passed by the learned District Judge - 14 and Additional
Sessions Judge, Pune, the said Civil Appeal No.489 of 2010 came to
be dismissed. Being aggrieved by the said judgment and decree
passed by the learned District Judge - 14 and Additional Sessions
Judge, Pune, the appellants have preferred this second appeal under
section 100 of the Code of Civil Procedure, 1908.
sa564-13
6. Learned counsel appearing for the appellants invited my
attention to the judgment and decree passed by the two Courts
below and would submit that though the respondent had alleged that
he was forcibly dispossessed by the appellants, the suit being under
section 6 of the Specific Relief Act, 1963 and was filed after a period
of six months from the date of the alleged dispossession, the learned
trial Judge as well as the first appellate Court erroneously decreed
the said suit instead of dismissing the said suit on the ground of
limitation and maintainability of the said suit.
7. It is submitted by the learned counsel that the respondent
(original plaintiff) failed to prove that the appellants had
dispossessed the respondent from the suit premises. He submits that
though the first appellate Court had rendered a finding that the
respondent had not proved his dispossession from the suit premises,
erroneously passed a decree for possession.
8. It is submitted by the learned counsel that the respondent
had failed to prove that cause of action had arisen to file the suit and
on that ground itself, the learned trial Judge ought to have dismissed
the suit for possession filed by the respondent. He submits that the
appellants were in lawful possession of the suit premises and could
not have been directed to hand over possession thereof to the
respondent.
sa564-13
9. Learned counsel for the respondent (original plaintiff) on
the other hand invited my attention to various findings of fact
rendered by the two Courts below and would submit that the suit filed
by the respondent was not under section 6 of the Specific Relief Act,
1963 in respect of the suit premises which the respondent had
permitted the appellants to occupy jointly with the respondent due to
his love and affection for the appellant no.1, who is the son and the
appellant no.2, who is daughter in law. He submits that the
appellants had no right, title or interest of any nature whatsoever in
respect of the suit premises. It is submitted that the learned trial
Judge after considering the oral as well as documentary evidence
had rightly come to the conclusion that the respondent was entitled to
possession of the suit premises from the appellants. He submits that
the first appellate Court also considered the issue whether section 6
of the Specific Relief Act, 1963 was at all applicable to the suit filed
by the respondent or not and has rightly rejected the said plea raised
by the appellants. He submits that the suit premises was declared as
protected area by the Government and thus the suit premises being
allotted to the respondent by the Government and the respondent
was a protected occupier of the Government the respondent was not
claiming ownership in respect of the suit premises. He submits that
the suit filed by the respondent was not based on title. It is submitted
sa564-13
that the appellants had assaulted the respondent on 24 th December,
2002 and had driven him out of the suit premises and thus the
respondent had filed a suit for possession of the suit premises.
10. It is submitted by the learned counsel that the findings
rendered by two Courts below are not perverse and thus cannot be
interfered with by this Court under section 100 of the Code of Civil
Procedure, 1908.
11. A perusal of the impugned judgment and decree passed
by the learned trial Judge indicates that the learned trial Judge has
framed three issues for determination. The learned trial Judge has
considered several documentary evidence and also considered oral
evidence led by both the parties. After considering oral as well as
documentary evidence, the learned trial Judge has rendered a
finding that the appellants had dispossessed the respondent and that
the respondent was entitled to seek possession of the suit premises
from the appellants.
12. A perusal of the judgment and decree rendered by the first
appellate Court indicates that the first appellate Court has formulated
three points for determination, including the point whether the
appellants had proved that the suit filed by the respondent was
barred by law of limitation or not. The first appellate Court has held
that admittedly the suit premises was a slum area protected by the
sa564-13
Government and was under the control of Pune Municipal
Corporation. The competent authority had given the permission to
the respondent to file the said suit. The respondent was not the
owner of the suit premises. The first appellate Court accordingly
held that the suit could not be called on the basis of title and section
6 of the Specific Relief Act, 1963 had no application. The first
appellate Court has rightly adverted to the judgment of the Supreme
Court reported in AIR 1968 SC 1165 Nair Service Society Ltd. vs.
Rev.Fr.K.C.Alexander and has held that when a party is not
claiming possession on the basis of title and the suit is based on
previous possession of the plaintiff, Article 64 of the Limitation Act is
applicable and thus it cannot be said that the suit of the respondent
was hit by the provisions of section 6 of the Specific Relief Act, 1963.
13. A perusal of the said judgment and decree of the first
appellate Court indicates that after considering the evidence led by
the parties and more particularly the documents such as payment of
service tax, electricity bill, application for grant of photo pass etc. the
first appellate court held that the suit premises were in possession of
the respondent on 1st March, 1988. It is held that the respondent had
given the suit premises to the appellants out of love and affection for
use.
14. The first appellate Court has also considered the oral
sa564-13
evidence led by both the parties, including the cross-examination
of the appellant no.1 in which he admitted that he had learnt the
work of motor rewinding at Bombay and thereafter he returned to
Pune. His marriage was performed by his father. On one hand the
appellant no.1 alleged that after his marriage he started residing
at Hadapsar along with his wife and on the other hand he alleged
that he was residing at Hadapsar for about six months. He
admitted that in the voter list in the year 2005 his name was
appearing along with the name of the respondent and the name
of his wife in the voter list. In the Ration Card, two addresses
which were scratched were true and correct. The first appellate
Court also held that one address mentioned in the Ration Card
was Room No.12, Laxminagar, Yerwada and another address
mentioned was S.No. 27, Munjoba Vasti, Dhanori, Pune.
15. The first appellate Court has held that the said admission
on the part of the appellants corroborates the contention from the
application dated 2nd December, 2002, wherein the respondent had
specifically alleged that he had made arrangement for the appellants
to reside at Munjoba Vasti. It is held that being father, the respondent
had made efforts to provide the shelter and accommodation to the
appellants. The documents produced by the respondent showed
prior possession of the respondent in the suit premises. The first
appellate Court also held that the documents produced by the
sa564-13
appellants on record were not sufficient to show that his possession
in the suit premises was legal or the premises were allotted to him by
the Pune Municipal Corporation. The receipts produced by the
respondent on the other hand proved that he was in possession
earlier than that of the appellants. It is held that the appellants had no
right, title and interest to retain the suit premises and were residing in
the suit premises at the mercy of the respondent. The Government or
Pune Municipal Corporation had granted permission to file the suit to
the respondent.
16. A perusal of the record indicates that both the Courts
below have considered oral as well as documentary evidence led by
both the parties and have rightly rendered a finding of fact that the
respondent was in prior possession of the suit premises and had
permitted the appellants to stay in the suit premises along with him
due to his love and affection for the appellants, he being the father of
the appellant no.1 and daughter in law of the appellant no.2
respectively. In my view these findings rendered by two Courts below
being not perverse, cannot be interfered with by this Court under
section 100 of the Code of Civil Procedure, 1908.
17. Insofar as the submission of the learned counsel for the
appellants that the suit was time barred contending that the suit was
filed under section 6 of the Specific Relief Act, 1963 and not having
sa564-13
been filed within six months from the date of the alleged
dispossession is concerned, in my view, the first appellate Court has
rightly rejected this contention raised by the appellants and has
rightly held that the suit filed for possession of the suit premises
based on the prior possession of the respondent, section 6 of the
Specific Relief Act, 1963 was not applicable but Article 64 of the
Limitation Act, 1963 was applicable. Both the Courts below have
rightly held that the respondent was in prior possession of the suit
premises and was entitled to recover possession thereof from the
appellants. In my view there is thus no substance in the submission
made by the learned counsel for the appellants and the same is
accordingly rejected.
18. In my view, the appeal is devoid of merits. There is no
substantial question of law arising in this second appeal.
19. I therefore, pass the following order :-
a). Second Appeal No.564 of 2013 is dismissed.
b). There shall be no order as to costs.
c). In view of dismissal of the second appeal, Civil Application
No.1314 of 2013 does not survive and is accordingly dismissed. No
order as to costs.
(R.D. DHANUKA, J.)
