Bombay High Court
Smt. Minakshi Manik Pilley And ... vs Gainabai Wd/O Maroti Meshram And ... on 4 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 21 OF 2017
1] Smt. Minakshi Manik Pilley
Aged about 64 years, Occ: Hotel Business
2] Sau. Kanga w/o Mahesh Dikondwar
Aged about 33 years. Occ.: Labour
3] Ku. Bharti d/o Manik Pilley
Aged about 31 years, Occ.: Labour
All R/o Urjanagar Kondi, Ward No.5,
Beside Grampanchayat, Urjanagar,
Tadoba Road, Tah. & District-Chandrapur. .......APPELLANTS
...V E R S U S...
1] Gainabai wd/o Maroti Meshram
Aged about 93 years, Occ.: Nil
2] Bhaurao s/o Maroti Meshram
Aged about 69 years, Occ.: Labour
3] Bandu s/o Maroti Meshram
Aged about 64 years, Occ: Leader
4] Ku. Chanda d/o Maroti Meshram
Aged about 49 years, Occ.: Nil
All R/o Durgapur, Po. Urjanar
Tah. & District-Chandrapur. .......RESPONDENTS
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Smt. R. S. Sirpurkar, Advocate for Appellants.
Shri S. A. Marathe, Advocate for Respondent Nos. 1 to 4.
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CORAM : A. S. CHANDURKAR, J.
DATE : 4th September, 2017
Oral Judgment :
The appellants are the original defendants in the suit for eviction
along with damages filed by respondents.
2] It is the case of the respondents- original plaintiffs that they are
the owners of the suit property having purchased the same from one
Shamrao Wankhede. From 1.1.1985 the same was leased out to the
defendants on lease. An agreement was accordingly prepared and rent of
Rs.200/- per month was being paid. The tenancy was subsequently
terminated by issuing a notice on 5.12.1995. In the written statement the
title of the plaintiffs was denied. It was pleaded that the defendants were in
possession on their own rights and that the plaintiffs had no concern with
the suit property.
3] The trial Court after considering the material available on record,
decreed the suit and the appellate Court confirmed the said decree.
4] Smt. R. S. Sirpurkar, learned counsel for the appellants submitted
that during the lease agreement dated 18.3.1985 was not duly proved.
Though the said agreement was impounded, it was not sent for registration
nor was the same exhibited. In absence of the contents of said document
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being proved, it could not be said that the plaintiffs were entitled for relief
on that basis. It was then submitted that the earlier suit filed by the
respondents was withdrawn without seeking any liberty. On that count, the
subsequent suit seeking similar relief was not maintainable. Moreover, the
actual area in possession of the defendants was not identified and, therefore,
no decree could have been passed.
5] Shri S. A. Marathe, learned counsel for the respondents supported
the impugned judgment. It was submitted that the agreement dated
18.3.1985 was duly proved by paying deficit stamp duty. Plaintiff No.4 as
well as the attesting witness was duly examined for proving said document.
The tenancy was validly terminated by issuing notice on 31.5.1995. The area
of encroachment was also duly proved by examining a Surveyor in that
regard. It was, therefore, submitted that the decree was rightly passed by the
trial Court and maintained by the first appellate Court.
6] I have heard learned counsel for the parties at length and perused
the impugned judgments. In so far as the agreement of lease dated
18.3.1985 is concerned, the plaintiff no.4 who is the daughter of the original
owner was examined. The attesting witness on the agreement was also
examined. Though this document was impounded and the deficit stamp duty
was also paid, it was not sent for its registration. It has been found by both
the Courts that this was on account of the fault of the Court staff. Having
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paid the deficit stamp fee, the plaintiffs could not be blamed. I find that the
evidence of plaintiff no.4 as well as the attesting witness is sufficient to
prove the agreement of lease. As per the agreement, the suit property was
taken on monthly rent of Rs.200/- for eleven months.
7] The tenancy has been terminated after issuing notice at Exh.56.
There is no reply given to said notice. On the contrary, the defendants have
denied the title of the plaintiffs. The defendants, however, have not been
able to prove any legal right or title in their favour. In R.C.S. No. 255/1994,
relief of perpetual injunction restraining the defendants from constructing a
wall was sought. It was specifically pleaded that the defendants were the
tenants of the suit property. The record indicates necessary liberty was
granted as per application at Exhibit-27 in that suit while withdrawing the
same.
8] The area in possession of the defendants has been identified by
examining PW-2. The trial Court has observed that the defendants could not
point out any procedural defects or lacuna in the aforesaid measurement. On
that basis it has been found that the defendants were in possession of 4000
sq.ft.
9] In view of aforesaid, I find both the Courts have taken into
consideration the relevant evidence while decreeing the suit. The
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appreciation of evidence does not appear to be perverse. Hence, the appeal
does not give rise to the substantial question of law, the same is dismissed.
No costs.
JUDGE
rgingole
