Hardayalsingh Khushalsingh ... vs Eknath Son Of Wasudeo Saraf
2017 Latest Caselaw 4945 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 198 of 2004


 Hardayalsingh son of Khushalsingh
 Sandhu
 since dead, through his
 legal heirs:

 1.      Narendrapalsingh son of
         Hardayalsingh Sandhu,
         aged about 44 years,
         occupation - business,

 2.      Surendersingh son of
         Hardayalsingh Sandhu,
         aged about 41 years,
         occupation - business,

 3.      Gurindersingh son of
         Hardayalsingh Sandhu,
         aged about 38 years,
         occupation - business,

 4.      Rashpalsingh son of
         Hardayalsingh Sandhu,
         aged about 36 years,
         occupation - business,

         all residents of Gokul Nagar
         Ward, near Kala Mandir,
         Ballarpur, Tq. Ballarpur,
         Distt. Chandrapur.                  .....      Appellant.
                                                Org. Defendant



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 Eknath son of Wasudeo Saraf,
 aged about 64 years,
 occupation - cultivation,
 resident of Balaji Ward,
 Chandrapur
 Tq. & Distt. Chandrapur
 [Maharashtra].                                     .....       Respondent.
                                                                Org. Plaintiff.


                                 *****
 Mr. M. P. Khajanchi, Adv., for the Appellant.

 Mr. Amol Mardikar, Adv., for respondent.

                                        *****


                                   CORAM :         A.S. CHANDURKAR, J.

                                   Date       :    24th July, 2017

 ORAL JUDGMENT:

01. The following substantial questions of law were framed while

admitting the Second Appeal:-

"1 Whether the appellate Court was justified in recording a finding on the ownership of property on an incorrect assumption that the defendant had not disputed that the suit property originally belonged to the plaintiff's father when the defendant had specifically denied the aforesaid fact in the written statement?

2. Whether it could be said on the facts of the case

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that the permission of the competent authority under the provisions of Section 22 of the Maharashtra Slum Areas (Improvement, Clearance & Development) Act, 1971 ought to have been obtained before the institution of the suit?"

02. The respondent is the original plaintiff who had filed suit

against appellant-defendant for removal of encroachment and

possession from him. It was the case of the plaintiff that he was the

exclusive owner of Khasra No. 31/26. The defendant had encroached

upon a portion of said property and had also constructed a house

thereon. According to the plaintiff, the encroachment was to the

extent of 5767 square feet. After issuing notice, the aforesaid suit

came to be filed. A prayer for damages was also made.

03. The defendant filed his Written Statement and denied the

claim. It was his case that he was in possession of the suit property

since more than twenty years. He had perfected his title by adverse

possession and, therefore, the suit was liable to be dismissed.

04. The trial Court held that the plaintiff was the owner of the

suit property. It was further held that the defendant had committed

encroachment which was indicated by the alphabets "A, B, C, D" in the

plaint map. The suit was accordingly decreed and defendant was

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directed to hand over vacant possession of the demarcated portion to

the plaintiff.

05. The defendant filed an appeal. During pendency of the

appeal, he moved an application below Exh.38 seeking to amend the

Written Statement on the basis of subsequent developments. It was

pleaded that in view of Notification dated 5th October, 1996, the suit

property fell in a slum area as per the Notification issued under the

Maharashtra Slum Area (Improvement, Clearance & Re-development)

Act, 1971 [for short, "the said Act"]. The appellate Court allowed the

said application for amendment. The defendant had also filed an

application below Exh.39 seeking permission to produce copy of the

Notification by way of additional evidence under provisions of Order-

XLI, Rule 27 of the Code of Civil Procedure, 1908 [for short, "the

Code"]. The production of these documents was allowed. The

appellate Court thereafter dismissed the appeal on merits. Hence this

Second Appeal.

06. Shri Khajanchi, learned counsel for the appellant, submitted

that during pendency of the appeal, the suit property was notified as a

slum area and, therefore, the Written Statement had been amended.

Though the Notification in that regard was permitted to be produced,

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no finding has been recorded as to the effect of this subsequent

development. He submitted that the appellate Court ought to have

permitted the defendant to have led evidence and in view of said

Notification, the decree could not be executed as no permission of the

Competent Authority had been obtained for filing the suit. Though a

prayer for remand of the proceedings was made before the appellate

Court, the same was not considered. He placed reliance on the

decision in Jethmal Jagganathji Dangra Vs. Parmeshwar

Sheotabal Teli [1988 (3) Bom. C.R. 435] in support of his submission

that the suit itself was not maintainable for want of prior permission of

the Competent Authority.

07. Shri Amol Mardikar, learned counsel for the plaintiff,

supported the impugned judgment. According to him, the appellate

Court rightly refused to take into consideration the notification that

was sought to be relied upon by the defendant on the ground that

same was not duly proved. He submitted that it was for the defendant

to have proved this fact by leading evidence. Though a prayer for

remand was made, the same was rightly refused by the appellate

Court as it would have led to filling up the lacuna. He submitted that

the suit was not barred and as the Notification was alleged to have

been issued during pendency of the appeal, the decree could be

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executed after obtaining permission of the competent authority. He

placed reliance on the decision in Hari Dhondu Gurav Vs. Jhonney

Augustine Gomes [2001 (2) Mh. L.J. 715].

08. Since substantial question of law no.2 relates to the aspect

of permission of the competent authority under Section 22 of the said

Act before filing of the suit, the same is taken up first for consideration.

09. It is not in dispute that during pendency of the appeal, the

Written Statement was amended as per application at Exh.38. The

defendant then moved an application below Exh.39 for permission to

produce a copy of the Notification by way of additional evidence. The

production of documents was allowed by the appellate Court. After

such production was allowed, the appellate Court ought to have

considered the aspect of additional evidence being led by the

defendant for proving the Notification. When the appeal was finally

heard, a prayer for remand of the proceedings came to be made. This

request was not accepted by the appellate Court on the ground that it

would amount to filling up of lacuna.

10. Under provisions of Section 22 (1) (b) of the said Act, if any

Notification is issued notifying a slum area during pendency of the

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proceedings, the decree or order passed in such proceedings can be

executed after obtaining permission of the competent authority. This

position is clear in view of the decision in Hari Dhondu Gurav [supra].

The appellate Court after permitting production of the additional

evidence ought to have followed the course prescribed by provisions of

Order-XLI, Rule 28 of the Code. It could have either taken the

additional evidence itself or it could have directed the trial Court to

record evidence on that point. The appellate Court, however, merely

considered the aspect of remand and rejected that prayer. I find that

in the present case, the appellate Court failed to follow the appropriate

course as prescribed by Order-XLI, Rule 28 of the Code. This aspect

goes to the root of the matter, especially in view of provisions of

Section 22 (1) (b) of the said Act. If the suit property falls within a

slum area and the decree, if passed, has to be executed, the same is

only after obtaining permission of the competent authority. The

decision relied upon by the learned counsel for the appellant in

Jethmal Jagannathji Dangra [supra] cannot apply in view of the

observations made in that regard in the subsequent decision in Hari

Dhondu Gurav [supra]. Substantial question of law no.2 is accordingly

answered by holding that prior permission of the competent authority

was not liable to be obtained in the facts of the present case as the

Notification came into force after filing of the suit. However, the

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appellate Court ought to have followed the course as prescribed by

provisions of Order-XLI, Rule 28 of the Code while permitting

production of additional evidence. In view of the order proposed to be

passed,, it is not necessary to record any finding on substantial

question of law no.1.

11. As a result, the following order is passed:-

ORDER

[a] Judgment dated 03rd December, 2003 passed in Regular Civil Appeal No. 29 of 1989 is quashed and set aside.

[b] The proceedings are remitted to the appellate Court. The appellate Court shall decide the course to be followed pursuant to the order passed on the application below Exh.39. The said course would be as stipulated under provisions of Order-XLI, Rule 28 of the Civil Procedure Code. As the appeal is of the year 1989, the appellate Court shall decide the same by the end of December, 2017.

[c] Record and Proceedings be sent to the appellate Court forthwith.

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12. Appeal is partly allowed in aforesaid terms. No costs.

Judge

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