Bombay High Court
Laxman Namaji Parate vs Anandrao Maroti Gumgaonkar & Anr on 17 March, 2017
Bench: Ravi K. Deshpande
sa254.03.J.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.254 OF 2003
Laxman s/o Namaji Parate,
Aged about 48 years,
Weaver, Resident of Quarter No.110,
Ward No.41 (47), Adarsh Vinkar Vasahat
Colony, Tandapeth, Nagpur. ....... APPELLANT
...V E R S U S...
Deleted and 1] Anandrao s/o Maroti Gumgaonkar,
amended as
per Court's Aged 62 years, Occupation: Weaver,
order dt.17- Resident of Juni Vasti, Tandapeth,
2-2010 at
Page No.1-A.
Nagpur.
Respondent No.1: Through his legal heirs
Amended as 1-a] Smt. Radhabai wd/o Anandrao Gumgaonkar,
per Court's Aged about 75 years, Occ: Household.
order dated
17-2-2010.
1-b] Sou. Yashoda w/o Manik Dharmik,
Daughter, Aged about 54 years,
Occ: Household.
1-c] Sou. Rekha w/o Narayan Dharmik,
Daughter, Aged about 45 years,
Occ: Household.
1-d] Shri Buddhulal s/o Anandrao
Gumgaonkar, Aged about 47 years,
Occ: Labour.
1-a to 1-d R/o Near the house of
Manikrao Dharmik, Raipur, Hingna
Tahsil, Dist. Nagpur.
1-e] Sou. Shashikala w/o Khemaji Moundekar,
Daughter, Aged about 57 years,
Occ: Household, R/o Near the House of
Shri Vikas Kumbhare, Golibar Chowk,
Nagpur.
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sa254.03.J.odt 2/10
1-f] Shri Dhanraj s/o Anandrao Gumgaonkar,
Aged about 52 years, Occ: Private.
1-g] Shri Chaitram s/o Anandrao Gumgaonkar,
Aged about 49 years, Occ: Private.
No.1-f and 1-g R/o Near the House of Eknathrao
Paunikar, Lal Darwaja, Tandapeth, Juni Basti,
Nagpur.
2] Vijay s/o Motiram Tumse,
Aged 29 years, Occupation: Business,
Resident of Tandapeth, Ladputa,
Nandgir Road, Nagpur. ....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri R.D. Karode, Advocate for Appellant.
Shri S.P. Bhandarkar, Advocate for Respondent No.2.
-------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 17
ORAL JUDGMENT
1] The Trial Court dismissed Regular Civil Suit No.581
of 1987 on 15.04.1983 for possession of the suit property on the
basis of title. The lower Appellate Court allowed Regular Civil
Appeal No.341 of 1993 on 04.03.2003. The decision of the Trial
Court is set aside and a decree for possession has been passed in
favour of the plaintiff along with an enquiry to be made into the
past and future mesne profit, till the actual delivery of possession.
The original defendant is before this Court in this second appeal.
sa254.03.J.odt 3/10
2] The case of the plaintiff-Anandrao s/o Maroti
Gumgaonkar before the Trial Court was that he was a member of
Nagpur Vyaktigat Hatmag Vinkar Sahakari Samiti Limited, a
society registered under the Maharashtra Co-operative Societies
Act, 1960 and was allotted quarter No.110 on 04.02.1962.
The plaintiff alleged that in the year 1977, Namaji Parate, the
father of the defendant requested the plaintiff to allow him to
occupy the said quarter, till he gets an alternate accommodation.
After the death of Namaji, the defendant son did vacate the
quarter as a licencee and therefore, the licence was revoked by
issuing notice dated 02.03.1987. Consequently, the suit was
required to be filed for eviction and possession.
3] The defendant denied that his father Namaji was
inducted as a licencee by the plaintiff and claimed that Namaji
was the real allottee and owner of the quarter. It was the stand of
the defendant that the father Namaji was allotted the quarter in
question on 01.03.1964 and was paying Corporation taxes w.e.f.
01.04.1966. An alternate plea was raised by the defendant that he
is a trespasser in the quarter from 02.03.1964 and by way of
adverse possession, he became the owner of it w.e.f. 01.04.1978.
sa254.03.J.odt 4/10
4] The Trial Court dismissed the suit and recorded the
finding that the plaintiff has failed to establish his ownership in
respect of the suit quarter. It also rejected the claim of the
defendant for ownership on the basis of adverse possession.
It holds that the question of Namaji, the father of the defendant
being a licenceee in respect of the suit quarter does not at all
arise. The lower Appellate Court allows the appeal and holds that
the plaintiff has established ownership over the suit quarter and
the father of the defendant was inducted as licencee in the year
1977, which was revoked by issuing legal notice. Both the courts
rejected a plea of bar of limitation raised by the defendant.
5] On 09.10.2003 this Court admitted the second appeal
and passed an order framing substantial questions of law as
under:
"Admit.
Question nos.1 to 4 shall be treated as
substantial questions of law.
Stay to continue."
The substantial questions of law stated in the memo
sa254.03.J.odt 5/10
of appeal are reproduced below:
"1. Whether interpretation placed by the lower court on
Section 110 of the Evidence Act for coming to the
conclusion that the Plaintiff is the owner of the suit
property can be said to be a correct interpretation in
law, when admittedly appellant/defendant was in
possession of the suit property and it being the settled
position of law that possession follows title ?
2. Whether the suit for possession against a Licencee is
maintainable in absence of permission from the Rent
Controller.
3. Whether the finding of the lower appellate court that
plaintiff is the owner of the suit property can be said to
be correct in view of the deposition given by the
Plaintiff namely :
"I have not received any letter of allotment
regarding suit plot from Vyaktigat Society. I do not
have a letter stating condition on which suit plot
No.110 was given. Till today there is no registered sale
deed of suit plot in my favour by Adarsh Society. There
is no letter either from the Government or from the
society showing that I am the owner of the suit plot".
4. Whether the finding of the lower appellate court that
the plaintiff is the owner of the suit plot can be said to
be correct one in view of the deposition given by the
Plaintiff's Witness No. 2 :
"Till today society has not given any Sale Deed to
Plaintiff Anandrao. Even today Society is the owner of
the Quarter". "
6] Before this Court Civil Application No.5064 of 2003
under Order XLI Rule 27 of the Code of Civil Procedure is filed for
sa254.03.J.odt 6/10
producing the additional evidence which consists of -
(i) Indenture of lease dated 09.01.1996, between the Nagpur
Improvement Trust and the Adarsh Vinkar Vasahat Vyaktigat
Co-operative Society Limited, Nagpur of which the suit quarter is
the part of subject-matter; (ii) A copy of sale-deed dated
16.11.1998 executed by the said society in favour of the
plaintiff-Anandrao s/o Maroti Gumgaonkar; and (iii) A copy of the
sale-deed dated 16.11.1998 executed by the plaintiff-Anandrao in
favour of one another person Vijay s/o Motiram Tumse, who was
subsequently permitted by the lower Appellate Court to be joined
as appellant No.2 in the regular civil appeal.
7] There is a serious dispute about ownership of the suit
quarter. The plaintiff claimed to be allottee of the suit quarter
from Nagpur Vyaktigat Hatmag Vinkar Sahkari Samiti Limited,
Nagpur on 04.02.1962 and in support of this plea, a receipt of
deposit of amount at Exh.33 was placed on record along with
various tax receipts. Though, the Trial Court rejected the
ownership of the plaintiff, the lower Appellate Court accepts it.
Though, the defendant also claimed that his father was the
allottee of the suit quarter, the lower Appellate Court holds that
no document is placed on record to establish this fact.
sa254.03.J.odt 7/10
The defendant does not challenge this finding. All questions of law
raised, pertains to the title of the plaintiff. If a plea of the
defendant regarding adverse possession is to be considered, then
the Court will have to proceed on the footing that the plaintiff
bears the title over the suit quarter. A plea of adverse possession
has been rejected by the Trial Court as well as by the lower
Appellate Court. The questions of law framed do not pertain to
this finding also. The defendant has in categorical terms denied
that his father was inducted as a licencee of the plaintiff in the
year 1977 and states that he is a trespasser over the suit property
from the year 1964.
8] In the background of the aforesaid factual position,
the suit in question is essentially for a decree of possession to evict
a trespasser on the basis of title, and therefore, the question of
want of permission of the Rent Controller under the C.P. & Berar
Letting of Premises and Rent Control Order, 1949 does not at all
arise. Similarly, the question of jurisdiction of the Civil Court to
entertain, try and decide the suit for possession based on title also
cannot be disputed.
9] In the decision of the Apex Court in case of Om
sa254.03.J.odt 8/10
Prakash Gupta vs. Ranbir B. Goyal reported in (2002) 2 SCC 256,
the Apex Court has held in paragraph 11 that though the ordinary
rule of civil law is that the rights of the parties stand crystallized
on the date of the institution of the suit and, therefore, the decree
in a suit should accord with the rights of the parties as they stood
at the commencement of the lis, the Court has power to take note
of subsequent events and mould the relief accordingly, subject to
the certain conditions. Order XLI Rule 27 of the C.P.C empowers
the Appellate Court to grant permission to produce additional
evidence, whether oral or documentary, if the parties seeking to
adduce additional evidence satisfy the Court that such evidence,
notwithstanding the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the
decree or order under appeal was passed or made. The Court may
also permit such production, if the Court considers it necessary to
pronounce the judgment or for any other substantial question.
10] The respondents who are the legal heirs of the
plaintiff-Anandrao have filed Civil Application No.5064 of 2003.
Perusal of the documents annexed to this application under
Order XLI Rule 27 of the C.P.C. shows that these documents could
not be produced by the plaintiff for the reason that the documents
sa254.03.J.odt 9/10
were not in existence till the date of their execution, which took
place in the present case, during the pendency of appeal before
the lower Appellate Court. The documents sought to be produced
are relevant for deciding the real controversy of title involved in
the matter and in the absence of lack of bona fides the same can be
permitted to be placed on record. Hence, the civil application
under Order XLI Rule 27 of the C.P.C. needs to be allowed.
11] Merely because this Court has allowed the application
under Order XLI Rule 27 of the C.P.C., it does not follow that the
plaintiff would be entitled to maintain a decree passed by the
lower Appellate Court, which was not based upon any letter of
allotment. The Court will have to take into consideration the
subsequent event of conferral of title of the suit quarter upon the
plaintiff by the true owner. The matter will have to be therefore,
remanded back to the Trial Court to permit the parties to lead
evidence to establish their rival claim of title. Both the parties
have no objection for adopting such mode, leaving all the
questions regarding title for the decision of the Trial Court in
accordance with law , keeping in view the observations of this
Court.
sa254.03.J.odt 10/10
12] In view of above, the second appeal will have to be
allowed by setting aside the judgment and order delivered by both
the Courts below with an order of remand for permitting
additional evidence to be produced by the parties in respect of the
rival claim for title.
13] In the result, the judgment and order dated
15.04.1993 passed in Regular Civil Suit No.581 of 1987 and the
judgment and order dated 04.03.2004 passed in Regular Civil
Appeal No.341 of 1993 delivered by the lower Appellate Court are
hereby quashed and set aside. The matter is remanded back to the
Trial Court to decide it afresh in accordance with law. The parties
to appear before the Trial Court on 24.04.2017. The Trial Court
shall permit both the parties to produce additional evidence in
support of the rival claim for title. The Trial Court shall decide the
suit within a period of six months from the date of first
appearance of the parties before it. No fresh notices shall be
issued to the parties concerned. No order as to costs.
JUDGE
NSN
