Kamrunissabegum Abdul Majid Khan vs M/S Obed & Ahesan Coper Brass ...
2017 Latest Caselaw 4659 Bom

                                1          24-SA-162-92


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                            
             SECOND APPEAL NO.162 OF 1992

Qamrunnisa Begum w/o. Abdul
Majeed Khan, Aged 60 years,
Occ. Household, r/o. Itwara,
Nanded (died),
through Legal representatives

A-1. Mohd Mumtazali Khan s/o.
     Meraj Ali Khan @ Moin Ali Khan
     Age : 26 years, Occ. Nil

A-2. Mohd. Ayub Khan
     s/o. Meraj Ali Khan @
     Moin Ali Khan
     Age : 34 years, Occ. Nil

A-3. Ahmed Ali Khan
     s/o. Meraj Ali Khan @
     Moin Ali Khan,
     Age : 22 years, Occ. Nil,

A-4. Mohd. Wahed Khan s/o.
     Meraz Ali Khan,
     Age : 20 years, Occ. Nil,

      All r/o. Imran Colony,
      Degloor Naka, Nanded              ..Appellants

                       Vs.

1.  M/s. Obed and Ahesan
    Copper, Bras Merchant,
    registered firm No.105/1979
    through its partners




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A.    Mohammed Omer s/o. Mohd.
      Sajan, age 50 years,
      Occ. Business, 
      r/o. Itwara,
      Nanded

B.    Mohd. Ahesan s/o. Mohd
      Fakir, Age 45 years,
      Occ. Business, 
      r/o. Itwara,
      Nanded

C.    Abdul Hai s/o. Haji Gulam
      Ahmed, Age 55 years, 
      Occ. Business,
      r/o. Itwara, Nanded
      (died) through Lrs.

C-1. Anis Ahmad s/o. Abdul Hai,
     Age : 39 years, Occ. Labour,
     r/o. Mandhai, Nanded

C-2. Abdul Rafiq s/o. Abdul Hai,
     Age : 36 years, Occ. Labour
     r/o. Mandhai, Nanded,
     Tq. and Dist. Nanded

C-3. Rais Ahmad s/o. Abdul Hai,
     Age : 34 years, Occ. Labour,
     r/o. Mandhai, Nanded,
     Tq. and Dist. Nanded

2.    Meraj Ali Khan alias Moin
      Khan, s/o. Abdul Kajeed
      Khan, Age : 50 years,
      Occ. Business,
      r/o. Itwara, Nanded                   ..Respondents
       

                                 




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                                           3            24-SA-162-92


Mr.A.G.Godhamgaonkar, Advocate for Appellants 
Mr.Prashand        Deshmukh,        Advocate        i/b. 
Mr.S.S.Nirkhee,   Advocate   for   respondent   nos.1(i) 
and 1(ii)
Mr.Amit   Mukhedkar,   Advocate   for   respondent 
nos.1A(a) to 1A(7) and 1B 
                         --

                                 CORAM :  SANGITRAO S. PATIL, J. 

DATE : JULY 18, 2017

ORAL JUDGMENT :

The original plaintiff has preferred this

Second Appeal against the judgment and decree

dated 05.10.1991 passed in R.C.A. No.187 of 1986

by the learned 3rd Additional District Judge,

Nanded, whereby the appeal was partly allowed and

the judgment and decree passed by the trial Court

on 30.08.1986 in R.C.S. No.587 of 1982 directing

the deceased respondent no.1 to deliver possession

of the suit premises to the original plaintiff,

came to be dismissed.

2. Heard the learned Counsel for the legal

representatives of the deceased appellant and the

legal representatives of the deceased respondent

4 24-SA-162-92

no.1 (original defendant no.1). The learned

Counsel for the appellant submits that though

respondent no.2 was the son of the deceased

appellant, he had no authority to let out the suit

premises to the deceased respondent no.1, however,

the learned Judge of the first appellate Court

merely on surmises and conjectures, held that the

deceased appellant, being a Pardanashin lady, had

authorised respondent no.2 to look after the shop

premises and being as an agent of the deceased

appellant, respondent no.2 let out the suit

premises to the deceased respondent no.1. He

submits that this finding is perverse and

therefore, the Second Appeal will have to be

admitted to decide the question, as to whether

respondent no.2 was authorised to let out the suit

premises to respondent no.1 as an agent of the

deceased appellant. He pointed out to Grounds 7, 9

and 10 of the appeal memo, which, in fact, revolve

around this point.

5 24-SA-162-92

3. On the other hand, the learned Counsel for

the deceased respondent no.1 submits that the

deceased appellant herself has admitted in

paragraph 4 of the plaint that she being an old and

Pardanashin lady, her son i.e. respondent no.2 was

looking after the management of the shop as per her

direction. He further points out to the fact that

the deceased appellant and respondent no.2 were

residing together and were joint in all respects.

Therefore, the learned Judge of the first appellate

Court rightly inferred that respondent no.2 acted

as an agent of the deceased appellant. Being her

family member, residing with her and looking after

her shop premises, he let out the said premises to

respondent no.1. He submits that respondent no.2

did not participate the suit to resist the claim of

the appellant and this fact itself, is sufficient

to indicate that the suit was collusive. The

learned Judge of the first appellate Court has

rightly characterised the suit as collusive one,

6 24-SA-162-92

with a view to obtain possession of the suit

premises without following the procedure laid down

in the Rent Control Act for recovery of possession

of the tenanted premises from respondent no.1. He

then submits that after the demise of the

appellant, respondent no.2 filed a suit for

recovery of possession of the suit premises from

the deceased respondent no.1 under the provisions

of the Rent Control Act and the same is pending.

He submits that in view of this factual position,

the judgment of the first appellate Court cannot be

said to be perverse. There is no substantial

question of law involved in this appeal.

4. Indeed, in paragraph 4 of the plaint, the

deceased appellant herself mentioned that

respondent no.2 who is her son, was looking after

the management of her shop she being an old and

Pardanashin lady. Since the deceased appellant was

a Pardanashin lady and was an old woman and since

respondent no.2 was looking after the management of

7 24-SA-162-92

the shop, it was quite natural that on the

instructions of the deceased appellant, he let out

the suit premises to the deceased respondent no.1.

There is no dispute that the deceased appellant and

respondent no.2 were residing together. They had

common interests. In the circumstances, the case of

the appellant that respondent no.2, without her

consent and authority, let out the suit premises to

respondent no.1 cannot be believed. The learned

Judge of the first appellate Court has rightly

drawn inference about the nature of the suit on the

basis of the relations between the deceased

appellant and respondent no.2. The fact of

institution of a suit for recovery of the suit

premises under the Rent Control Act, ratifies the

findings of the learned Judge of the first

appellate Court about collusive nature of the suit

filed with a view to circumvent the provisions of

the Rent Control Act for getting possession of the

suit premises. In the circumstances, it cannot be

8 24-SA-162-92

said that the findings of the learned Judge of the

first appellate Court about collusive nature of the

suit as well as about authority of respondent no.2

to let out the suit premises to the deceased

respondent no.1, with the consent of the deceased

appellant, cannot be said to be merely on the basis

of the surmises and conjectures. Even otherwise,

those are the factual aspects of the matter. The

learned Judge of the first appellate Court has

rightly considered the facts of the case as well as

the evidence on record and has rightly dismissed

the claim of the deceased appellant for recovery of

possession of the suit premises.

5. I do not find any substantial question of

law involved in this appeal. Hence, order :-

(i) The Second Appeal is dismissed.

(ii)           No costs.



                                 [SANGITRAO S. PATIL, J.]
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