Tukaram Arjun Chafekar (Died) And ... vs Keshav Madhao Mungilwar (Died) ...
2017 Latest Caselaw 5643 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No.190 of 2015


 1.      Tukaram Arjun Chafekar
         [dead],

 2.      Sumitra Tukaram Chafekar,
         aged about 70 years,

 3.      Madhav Tukaram Chafekar,
         aged about 52 years,

 4.      Suresh Tukaram Chafekar,
         aged about 50 years,

 5.      Ganesh Tukaram Chafekar,
         aged about 43 years,

         all residents of Ward No.5,
         Darwha, Tq. Darwha,
         Distt. Yavatmal.                    .....           Appellant
                                                           Plaintiff



                                  Versus


 1.     Keshav Madhao Mungilwar
        [dead],

 2.      Kamlabai Keshavrao Mungilwar,
         aged about 68 years,




::: Uploaded on - 07/08/2017                ::: Downloaded on - 08/08/2017 02:45:33 :::
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 3.      Rekha Prakash Mistri,
         aged about 46 years,

 4.      Nita Sunil Badwe,
         aged about 43 years,

 5.      Datta Keshavrao Mungilwar,
         aged about 40 years,

 6.      Raju Keshavrao Mungilwar,
         aged about 39 years,

         all residents of Ambadevi
         Mandir Road, Darwha,
         Tq. Darwha,
         Distt. Yavatmal.          .....                      Respondent
                                                                Defendant



                                   *****
 Mr. T. J. Patil, Adv., for the appellants.

 Mr. N. S. Bhattad, Adv., for respondent no.5.

                                     *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   04th August, 2017

 ORAL JUDGMENT:

01. This appeal has been admitted on the following substantial

question of law:-

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"Whether the lower Appellate Court has committed an error of law in passing a decree against the plaintiffs and in favour of the defendants, in the appeal filed by the plaintiffs, without there being any counter-claim filed by the defendants in the Trial Court?"

02. The appellant is the original plaintiff. It is the case of the

plaintiff that open space in Property No. 200 is the subject-matter of

the present proceedings. The brother of the plaintiff - Tanu Chafekar

got the said property in a partition and he had started to reside there

in a hut. By virtue of Will dated 5th May, 1950, this property was

bequeathed in favour of the plaintiff. As the defendant and his family

members tried to obstruct the possession of the plaintiff, suit for

perpetual injunction seeking to restrain the defendant from obstructing

his possession was filed. According to the defendant, he was the

owner of the suit property and he had received the same in partition

with his father on 31st May, 1955. For constructing his house on said

property, he had applied for permission from the Municipal Council.

The Will in favour of the plaintiff was denied.

03. After the parties led evidence, the trial Court held that the

plaintiff had failed to prove the Will dated 5th May, 1950. It was

further held that the plaintiff was not in possession of the open portion

after the death of his brother. On that basis, the trial Court dismissed

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the suit.

04. In the appeal preferred by the plaintiff, the appellate Court

confirmed these findings. It then found that during pendency of the

appeal, the plaintiff had taken forcible possession of the suit property

and had raised a hut there. Thus, while dismissing the appeal, the

legal heirs of the plaintiff were directed to remove the hut within a

period of one month. Being aggrieved, the legal heirs of the plaintiff

have filed this appeal.

05. Shri T. J. Patil, learned counsel for the appellants, submitted

that in absence of any counter-claim for seeking possession, the first

appellate Court committed an error in directing the plaintiff to hand

over the suit property to the defendant. According to him, the

plaintiffs were always in possession of the suit property and the

material evidence in that regard was not considered by both the

Courts. He referred to the deposition of the plaintiffs in that regard.

06. Shri N.S. Bhattad, learned counsel for the respondents,

supported the impugned judgment. According to him, the appellate

Court having found that the defendants were forcibly dispossessed

during pendency of the proceedings, it was justified in directing

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restoration of the possession while dismissing the appeal. He referred

to the evidence on record and submitted that both the Courts had

concurrently held that the plaintiffs were not in possession of the suit

property. He placed reliance on the judgment of the Honourable

Supreme Court in Tanusree Basu & others Vs. Ishani Prasad Basu

& others [ (2008) 4 SCC 791] to justify the direction given by the first

appellate Court.

07. The learned counsel for the parties have been heard at

length. With their assistance, I have also perused the evidence on

record.

08. The trial Court while considering Issue No.3 in the suit

recorded a finding that the original plaintiff had not proved the Will

dated 5th May, 1950. It then found that as per Exhs.106 to 111, the

Municipal Council had assessed taxes which were paid by the original

defendant's father. Further, the property in question was shown in the

name of the defendant. It, therefore, recorded a finding that the

plaintiff had failed to prove that he was in possession of the suit

property since 1960. The first appellate Court on consideration of this

evidence affirmed those findings and held that the plaintiff was neither

the owner of the suit property nor was he in possession of the same.

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These findings being based on appreciation of evidence, there is no

reason to interfere with the same.

09. During pendency of the appeal, the defendant had moved

an application below Exh.12 for temporary injunction directing the

plaintiff to remove the construction made over the suit property. The

first appellate Court allowed said application on 2nd September, 2013

and restrained the plaintiffs from making any further construction and

also directed the plaintiffs to remove the construction already made.

This order was challenged by filing Appeal from Order No. 102 of 2013

and the appeal was disposed of by directing the parties to maintain

status quo with regard to the constructed portion. When the appeal

was finally heard, the appellate Court found that the plaintiffs had

made construction over the suit property by taking possession during

pendency of the appeal. It found that it was necessary to protect the

rights of the defendants in view of the plaintiff's conduct. It, therefore,

directed the legal heirs of the plaintiff to remove the construction

already made.

10. The power in that regard can be exercised under Section

151 of the Civil Procedure Code and this legal position is clear from the

observations made in para 23 of the judgment in Tanusree Basu &

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others [supra]. As these directions have been issued by exercising

power under Section 151 of the Code after noticing forcible

dispossession during pendency of the proceedings, it was not

necessary for the defendant to have filed a counter-claim in that

regard. Even in the absence of any counter-claim, such direction could

be issued in the facts of the case. Hence, the substantial question of

law is answered by holding that the appellate Court did not commit

any error while directing the legal heirs of the plaintiff to remove the

construction made by them during pendency of the proceedings.

11. Accordingly, the Second Appeal stands dismissed with no

order as to costs.

12. The legal heirs of the plaintiff shall comply with the

directions issued by the appellate Court within a period of eight weeks

from today.

Judge

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