Bombay High Court
Sk. Nayeem Sk. Karim And Another vs Akhtar Nasir Fatima Gani on 17 April, 2017
Bench: S.P. Deshmukh
*1* 23.sa.195.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 195 OF 2017
1 Sk.Nayeem s/o Sk.Karim
Age : 40 years, Occu : Driver,
R/o H.No.750, Pensionpura,
Cantonment, Aurangabad.
2 Sk.Nadeem s/o Sk.Karim
Age : 34 years, Occu : Driver,
R/o As above.
...APPELLANTS
-Versus-
Akhtar Nasir Fatima Gani
Age : 50 years, Occu : H.H.,
R/o Kohinoor Colony,
Aurangabad.
...RESPONDENT
WITH
CIVIL APPLICATION NO.3344 OF 2017
IN SA/195/2017
SK. NAYEEM SK. KARIM AND ANOTHER
VERSUS
AKHTAR NASIR FATIMA GANI
...
Advocate for Appellants : Shri Saiyed Rahatali Jafarali (Jahagirdar).
Advocate for Respondent : Shri Vivek Bhavthankar.
...
CORAM: SUNIL P. DESHMUKH, J.
DATE :- 17th April, 2017
Oral Judgment :
1 Heard the learned counsel appearing for the parties.
*2* 23.sa.195.17
2 This is plaintiffs' second appeal against decree of possession
granted against them passed by trial court dated 23.01.2014 in counter
claim filed by defendant against plaintiffs in regular civil suit No.1043 of
2009 and confirmed by appellate court under judgment and order dated
02.07.2016 in regular civil appeal No.42 of 2014. (Parties hereinafter are
referred to by their original status in the suit).
3 Plaintiffs had been to trial court, contending that suit house
belonged to one Gulam Mohammad Nasir (father of defendant) and that
the same had been rented out to their (plaintiffs') father Shaikh Karim
since 1960. Both the aforesaid persons had cordial relations and as such,
no written document had been executed about tenancy being created.
After death of Shaikh Karim, plaintiffs became tenants of suit house and
had been regularly paying rent. It is further averred that rent receipts
were not issued by defendant, nor there was practice of passing rent
receipts due to cordial relationship between the fathers of the respective
parties. However, with a view to evict the plaintiffs, the defendant had
intercepted necessary amenities being provided to suit house and had
disconnected supply of electricity in December, 2009. The defendant has
her money and muscle power and had been trying to get the suit house
vacated. As such, the suit for perpetual injunction against defendant was
*3* 23.sa.195.17
instituted.
4 In response, defendant, by her written statement, has denied
relationship of the landlord-tenant and further denied that either Shaikh
Karim or after him, present plaintiffs, were tenants of suit house. There
was no question of passing rent receipts to plaintiffs. According to the
defendant, the plaintiffs have illegally occupied suit house about four to
five years back taking advantage of the defendant being a lady and
residing away from suit house. In the written statement, defendant had
lodged counter claim against plaintiffs, contending that plaintiffs are
encroachers and be directed to handover possession of suit house to
defendant.
5 The trial court framed issues as to, whether plaintiffs were
inducted as tenants, whether defendant is trying to dispossess plaintiffs
without following due process of law, whether defendant proves plaintiffs
to be encroachers and whether defendant is entitled to counter claim of
possession.
6 Trial court held in the negative that plaintiffs are inducted as
tenants and that defendant has been trying to dispossess plaintiffs without
following due process of law and further held that defendant has proved
*4* 23.sa.195.17
that plaintiffs were encroachers. Trial court considered defendant to be
entitled for the counter claim of possession. As such, the trial court
dismissed the suit and partly decreed the counter claim directing
possession to be handed over to defendant. The suit of the plaintiffs for
injunction incidentally came to be dismissed.
7 In the appeal therefrom at the instance of plaintiffs, appellate
court had framed points for consideration as to whether plaintiffs prove
their father or them to be tenants, whether defendant is trying to
dispossess plaintiffs without following due process of law, whether
defendant proves that plaintiffs have encroached upon suit house, and
whether defendant is entitled to decree in counter claim for possession.
Answering aforesaid points as had been answered by the trial court and in
the process, holding in the negative the claim of plaintiffs of being tenants
and defendant were trying to dispossess the plaintiffs without due process
of law. Further, in the same way as did the trial court, appellate court held
in the affirmative that defendant is entitled to possession under the
counter claim.
8 Shree Jahagirdar, learned counsel for plaintiffs, vehemently
submits that there are hosts of aspects which have not been considered by
the courts hitherto. According to him, the counter claim of defendant
*5* 23.sa.195.17
itself has not been maintainable. Furthermore, according to him, even if it
is assumed to be maintainable, yet no proper court fees on the same has
been paid. The learned counsel contends that as a matter of fact there is
no cause of action for counter claim by defendant. Moreover, defendant
had not been owner of suit house having sold the same to her son. He
submits that there is evidence of plaintiffs being tenants, particularly of
PW-3 who stated that he had seen rent being paid by father of plaintiffs to
father of defendant. In the circumstances, according to him, burden to
prove that aspect, has been sufficiently discharged by plaintiffs. He
submits that even otherwise, counter claim of defendant has been time
barred as it was not filed within the period prescribed under relevant
articles of the Limitation Act, 1963.
9 Opposing aforesaid contentions, Shree Bhavthankar, learned
counsel appearing for defendant, contends that majority of arguments in
Second Appeal are outside the scope of litigation instituted against
defendant. According to him, it emerges to be an admitted position about
ownership of defendant having been accepted and acquiesced in by
plaintiffs. He submits that it had never been pleaded by plaintiffs in their
Written Statement or in defence to counter claim that defendant has not
been owner or for that matter, the property has been sold by her. He
submits that proper court fees on the counter claim has been paid. Apart
*6* 23.sa.195.17
from above, this was not the objection taken at all during pendency of
litigation hitherto. He submits that having regard to ownership of the
defendant having been emerged on record under the pleadings as well as
being an admitted position, it was within her right to seek recovery of
possession and as soon as it has emerged that plaintiffs are not willing to
give back possession of suit house, the counter claim has been filed within
prescribed period of limitation. It is an admitted position that defendant
is owner. Plaintiffs' possession of suit house, the courts have found the
same to be permissive. Institution of the counter claim can in no way said
to be outside the period of limitation being based on the title. He further
points out that so called evidence of the plaintiffs' witness No.3 that he
had seen father of defendant receiving rent from father of plaintiffs, was a
tutored evidence and there is no substance in the same. Said witness has
been completely exposed under the cross-examination. Besides, said
evidence having been examined twice, once at the trial and at the
appellate stage, it cannot be said that appreciation of the same is perverse.
He, therefore, prays for dismissal of the Second Appeal.
10 Perusal of judgments and decrees of the courts hitherto,
shows that plaintiffs have accepted devolution of suit house from Gulam
Mohammad upon the defendant. Further, it does not appear that any
credible material has been placed on record or for that matter, pressed
*7* 23.sa.195.17
into service showing that the defendant had no right to seek recovery of
possession. On the other hand, the plaintiffs did not appear to have
placed any credible material on record to substantiate their case about
rent being tendered to defendant about them being tenants. The Courts
hitherto have found plaintiffs' possession to be permissive. Documents
produced on record like the ration card or for that matter, the election
identity card or voter's identity card, in the absence of establishment of
relationship of tenant-landlord between the fathers of the parties, would
not assist the plaintiffs. Appreciation by courts has been after examining
the evidence of witnesses and the record, does not appear to be
impeachable. The position emerges that the defendant has right to
recover possession. It does not appear that any ground at the second
appellate stage being taken about the counter claim being outside
limitation, carries any substance, the suit being based on title.
11 In the circumstances, it does not appear that the Second
Appeal raises any substantial question to be considered. The Second
Appeal stands dismissed. The pending Civil Application does not survive
and the same also stands disposed of.
kps (SUNIL P. DESHMUKH, J.)
