Bombay High Court
Abdul Rajique Abdul Haq & Others vs Ishanbi Mohd Shish & Others on 17 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 67 OF 2004
1] Abdul Rafique Abdul Haq,
aged about 66 years, Occ. Labourer,
R/o. Khatikpura, Akot,
Tq. Akot, Distt. Akola.
2] Abdul Bashir Abdul Munif,
aged about 76 years, Occ. Business,
R/o. Anjangaon, Tq. Anjangaon,
Distt. Amravti.
3] Ajrabi Gulsherkhan,
aged about 56 years, Occ. Household,
R/o. Akot, Tq. Akot, Distt. Akola.
4] Abdul Waris Abdul Bashir,
aged about 54 years, Occ. Labourer.
5] Abdul Arif Abdul Bashir,
aged about 52 years, Occ. Labourer,
6] Abdul Sabir Abdul Bashir,
aged about 46 years, Occ.
7] Sajedabi Abdul Bashir,
aged about 42 years, Occ.
8] Abdul Jabir Abdul Bashir,
Aged about 38 years, Occ.
9] Butalbi Abdul Bashir,
aged about 37 years, Occ.
Appellant Nos. 4 to 9,
All R/o. Anjangaon, Tq. Anjangaon,
Distt. Amravati.
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10] Husainabi Murtuzakhan,
aged about 62 years, Occ. Household,
R/o. Adgaon Ek.
Tq. Akot, Distt. Akola.
11] Hamidabi Jafarali,
aged about 56 years, Occ. Household,
R/o. Hiwarkhed, Tq. Telhara,
Distt. Akola..... APPELLANTS
...VERSUS...
1] Ishanbi Mohd. Shish
(dead)
2] Mohd. Khurshid Mohd. Shish,
aged about 71 years,
3] Gulabai Manankha,
aged about 66 years,
R/o. Adgaon Ek. Ta. Akot, Distt. Akola,
4] Jamilabi Harun,
aged about 56 years,
5] Mainabi Abdul Habib,
aged about 51 years,
6] Mohd. Yunus Md. Shish,
aged about 52 years,
7] Mohd. Hanif Mohd. Shish,
aged about 46 years,
Respondent Nos. 1 to 2 and 4 to 7
All R/o. Akot, Tq. Akot, Distt. Akola.
8] Mohd. Khurshid Mohd. Shish,
aged about 71 years, Occ. Labourer,
R/o Khatikpura, Akot,
Tq. Akot, Distt. Akola.
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9] Mohd. Shafi Mohd. Idris,
aged about 64 yers,
10] Mohd. Rafique Mohd. Idris,
aged about 60 years,
Respondent Nos. 9 and 10 both
R/o. Akot, Tq. Akot, Distt. Akola.
11] Mohd. Tabrej Sk. Rasul,
aged about 66 years, Occ. Nil,
R/o. Khatikpura, Akola,
Tq. Akot, Distt. Akola.
12] Maimunbi Mohd.Shibli,
aged adult.
13] Mohd. Junned Mohd. Shibli,
Aged adult,
14] Mohd. Khalik Mohd. Shibli,
aged adult.
15] Mohd. Sadiq Mohd. Shibli,
aged adult,
16] Mohd. Hanif Mohd. Shibli,
aged adult,
17] Mohd. Adil Mohd. Shibli,
aged adult,
18] Mohd. Hadi Mohd. Shibli,
aged adult,
Respondent Nos. 12 to 18
R/o. Khatikpura, Akot,
Tq. Akot, Distt. Akola.
19] Arifbi Abdul Jameer,
aged adult,
R/o. Wadali Satwai,
Tq. Akot, Distt. Akola......... RESPONDENTS
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Shri R.L.Khapre, counsel for appellants
None for respondents, though served
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CORAM: R. K. DESHPANDE, J.
th
DATE : 17 MARCH, 2017 .
ORAL JUDGMENT
1] The trial Court partly decreed Regular Civil Suit
No. 237 of 1977 on 09.04.1988. The operative portion of the
order passed by the trial Court is reproduced below.
"1. Suit is partly decreed with proportionate cost.
2. It is declared that the plaintiffs are the owners of suit
plot No.26, nazul sheet No. 35-A, admeasuring 2008
sq.ft and defts. no. 1, 3, 5 and consequently deft. no.2
are not the owners of the suit plot.
3. It is declared that sale deed dt. 31.1.77 in favour of
deft.no.2 is not binding upon plaintiffs, and it is set
aside, it does not conform any right in favour of
defendant no.2.
4. Defendant do pay Rs.50/- to plaintiff towards notice
charges.
5. Claim for possession and mandatory injunction is
dismissed.
6. Defendants do bear their own cost.
7. Decree be drawn up accordingly" .
2] The plaintiffs being dissatisfied on the question
of refusal by the trial Court to pass a decree for possession of
the suit property in their favour, preferred Regular Civil
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Appeal No. 119 of 1998, whereas the defendants preferred
Regular Civil Appeal No. 128 of 1998, which were heard
together and decided by common judgment dated
01.10.2003 by the lower appellate Court. The lower
appellate Court allowed the appeal filed by the defendants
and set aside the decree passed by the trial Court and
dismissed the suit. The lower appellate Court also dismissed
the appeal filed by the plaintiff. This second appeal is
preferred by the original plaintiff through the L.Rs.
3] The controversy involved before the trial Court
was regarding the title of the plaintiffs over the suit property
on the basis of sale deed dated 19.06.1932 at Exh. 168 in
the name of Abdul Kadar Abdul Shami, the father of the
plaintiff. It was the defence raised by the original defendant
that he is the cousin of the father of the plaintiff and the
property was purchased by him from one Smt. Buvabi in the
name of Abdul Kadar Abdul Shami. The trial Court holds that
the title of the plaintiff over the suit property is proved. The
defendant Nos. 1, 3, 4 and 5 were the licensees in respect of
the suit property. The sale deed dated 31.01.1977 executed
by the defendant Nos. 1, 3, 4 and 5 in favour of defendant
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No.2 is not binding upon the plaintiffs. The Court rejects the
defence raised that the property was purchased in the name
of the father of the plaintiff by the defendants. A plea of
adverse possession was also rejected. However, a claim for
a decree for possession of the suit property was rejected on
the ground that the defendants have established that the
license in their favour in respect of the suit property was
irrevocable in terms of Section 60(a)(b) of the Easement Act.
4] The lower appellate Court reverses the finding of
the trial Court on the question of title. It holds that the
document of title was not produced, which is the sale deed.
The lower appellate Court confirms the finding of the trial
Court on the question of irrevocable license of the
defendants. Consequently, the appeal filed by the defendant
is allowed and the appeal filed by the plaintiff is dismissed
and the suit filed was also dismissed.
5] On 18.04.2006, this Court passed an order
admitting the matter and formulating the substantial
questions of law, which is reproduced below.
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"Admit on the following substantial questions of law.
(a) Was the Appellate Court required to address itself on
the question of plaintiff's title in the background of
defendant's admission of plaintiff's ownership?
(b) Was the Appellate Court right in holding that the
plaintiff had no title when any enquiry into the plaintiff's
title was not required?
(3) Does the transfer of rights by the defendants amount
to violation of licensee's right and hence, the license
was liable to be terminated and the transfer was liable
to be ignored?"
6] So far as the questions at Sr.Nos. (1) and (2) are
concerned, it is not in dispute that a certified copy of the sale
deed dated 19.06.1932 was produced on record and marked
as Exh.168. The sale deed clearly was in the name of the
father of the plaintiff namely Abdul Kadar Abdul Shami. It
was the specific stand of the defendants that the property
was purchased in the name of the father of the plaintiff as
benami. According to the defendants, Smt. Buvabi, the
vendor, was not prepared to execute the sale deed in favour
of Sk. Rasul, the father of the defendants and therefore, the
property was purchased in the name of Abdul Kadar Abdul
Shami. The burden of proof to establish such stand was on
the defendants who would fail if it is not discharged. The
question of producing the original sale deed did not arise as
the certified copy placed on record was proved and marked
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as Exh.168. The stand of the defendants itself reflected that
the sale deed was in the name of the father of the plaintiffs.
In the absence of any evidence regarding the father of the
defendants having purchased the suit property in the name of
the father of the plaintiff, the lower appellate Court could not
have reversed the finding on title recorded by the trial Court.
No enquiry into the title was called for. The substantial
question of law at Sr.Nos. (1) and (2) are answered
accordingly and the finding of the lower appellate Court that
the plaintiffs have failed to establish their title over the suit
property is set aside.
7] With the assistance of the learned counsel Shri
Khapre appearing for the appellant, I have gone through the
written statement. It is not the stand taken by the defendants
that the license was irrevocable in terms of Section 60(b) of
the Easement Act. The specific stand of the defendants was
that the father of the plaintiff was not the owner of the suit
property, but it was the father of the defendants, who was the
owner of the suit property. The creation of license in favour of
the defendants was denied. Hence, the question of attracting
Section 60(b) of the Easement Act does not at all arise. The
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trial Court ignored the fact that the defendants in fact denied
the license and claimed the title. Hence, such a plea of
erecting permanent construction on the basis of the license
was not established by leading evidence. Consequently, the
findings recorded by the lower appellate Court to confirm
such finding of the trial Court also cannot be sustained. The
substantial question of law at Sr.No. (3) is answered
accordingly and hence, the license of the defendant was
liable to be terminated by ignoring the transfer. Obviously,
the finding recorded by the trial Court that the sale deed
dated 31.01.1977 executed by defendants 1, 3, 4 and 5 in
favour of defendant no. 2 is not binding upon the plaintiff
needs to be confirmed. Consequently, the plaintiff would be
entitled to seek a decree for possession of the suit property
by confirming the other findings recorded by the trial Court.
8] In the result, the second appeal is allowed and
the following order is passed.
[I] The common judgment and order dated
01.10.2003 passed by the lower appellate Court
in Regular Civil Appeal Nos. 119 of 1998 and
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128 of 1998 is hereby quashed and set aside.
[II] The rejection of the claim for possession and
mandatory injunction in clause (5) of the
judgment and order passed by the trial Court is
hereby quashed and set aside.
[III] Rest of the decree passed by the trial Court in
Regular Civil Suit No. 237 of 1977 on
09.04.1998 is hereby restored and in addition to
it, the plaintiffs shall be entitled to a decree as
under;
[a] The defendants are directed to remove
the Imla of the newly constructed room as
alleged in para 8-A of the plaint along
with the structure standing thereon.
[b] The defendant Nos. 1 to 5 are directed to
deliver vacant possession of the suit
property to the plaintiffs within a period of
30 days.
[c] An enquiry into mesne profit from the
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date of the suit till actual delivery of
possession is ordered under Order XX,
Rule 12 of C.P.C.
[d] No order as to costs.
JUDGE
Rvjalit
