Nandmukar Raghunath Salvi vs Balsheth Bhagsheh Gandhi (Since ...
2021 Latest Caselaw 6050 Bom

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                                                                        5.4.2021



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        CIVIL APPELLATE JURISDICTION

             SECOND APPEAL NO. 95 OF 2016
                    ALONGWITH
          INTERIM APPLICATION NO. 679 OF 2019


Nandkumar Raghunath Salvi                     .....Appellant
                                              (Orig.Defendant)

        V/s.

Balsheth Bhagsheth Gandhi
(Since deceased through heirs)
and Ors.                                      ....Respondents


                   ****
Mr. Saurabh M. Railkar, Advocate for the appellant.

Mr. Bhushan Walimbe, Advocate for the respondent.


                         CORAM : SANDEEP K. SHINDE, J.

05th April, 2021.

P.C. :

1. Appeal was heard at the admission stage and

closed for orders.

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                                                                    5.4.2021

2. The appellant is the original defendant in a suit

for possession instituted by predecessor-in-title of the

respondents, Late Balasheth B. Gandhi. The suit was

decreed by the trial Court, whereby the defendant was

directed to handover possession of the suit property to the

plaintiffs. The first Appellate Court, confirmed the decree

of the trial Court, vide judgment dated 15th July, 2015.

Feeling aggrieved by these concurrent findings and decree

of possession, the defendant has preferred this Second

Appeal. On 6th August, 2019, the Appeal was dismissed for

not removing office objections; whereafter on 25 th

February, 2020, the Appeal was restored to file.

3. The Appeal was heard and posted for 'passing

orders', but when I have gone through the impugned

judgments minutely, I found certain issues involved in the

Appeal were not brought to the notice of this Court by the

learned Counsel for the parties.

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                                                                           5.4.2021

4. Herein, the appellant-defendant had raised

multiple defences. One of the defences was that, the

plaintiff had granted irrevocable license to the predecessor-

in-title of the defendants who then, acted upon the licence

and executed a work of permanent character and incurred

expenses in the execution. Next, alternative defence was,

the defendant was inducted as a tenant in the suit property

and the last defence was that, the original plaintiff had

executed, agreement to sell dated 28th June, 1954 in favour

of the predecessor-in-title of the defendant, one Mahadeo

Kumbhar and agreed to sell the suit property, to him.

5. In so far as the agreement to sell dated 28th June,

1954 is concerned, the defendant had filed a counter claim

and sought specific performance of agreement dated 28th

June, 1954. In so far as the defendant's claim that, his

predecessor-in-title was a tenant in the suit property is

concerned, both the Courts relied on the tenancy

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proceedings instituted by the predecessor-in-title of the

defendant and the orders passed thereon. Relying on these

orders, both the Courts rejected this defence.

6. In so far as counter-claim of the defendant for

specific performance of agreement dated 28th June, 1954 is

concerned, both the Courts found that, defendant could not

prove the 'agreement for sale' for more than one reason.

As such, the counter-claim was also rejected.

7. In consideration of the facts of the case, the

Court below have thus held, that "Where the plaintiffs sues

as a proprietor to recover the land and the defendant sets

up a tenancy right under the plaintiff, in such a case, the

plaintiff, is not to prove anything, because the admitted

paramount title carries with it, a presumption that plaintiff

is entitled to hold and possess the land and therefore the

person seeking to defeat that right and claim to hold under

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him, must establish the right asserted by him". Thus, both

the Courts concurrently held, there was no necessity of the

plaintiff to prove his title in the suit land.

8. In so far as, defence of 'irrevocable license' is

concerned, in my view, it is necessary to examine this

defence in view of Section 60 of the Easement Act, after

verifying the pleadings and the evidence. Yet, one more

aspect is required to be examined is, whether Mahadev

Gopal Deorukhkar @ Kumbhar was ancestor of the

defendant. It is so necessary, because the Courts have held,

the defendant could not prove his relation with Mahadev

Gopal Deorukhkar @ Kumbhar who was the licensee in the

suit land and a person in whose favour agreement to sell

dated 28th June, 1954 was allegedly executed by the

defendants.

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                                                                       5.4.2021

9. In my view, above issues cannot be decided

unless, record is called from the trial Court.

10. Call for records and proceedings from the trial

Court.

11. List the Appeal on 26th July, 2021.

12. Parties are put to notice that Appeal shall be

heard finally on 26th July, 2021 or thereafter.

13. Mr. Walimbe waives service of notice on behalf

of the respondents.

(Sandeep K. Shinde, J.)