Sambhaji Murlidhar Badgujar And ... vs Dharmendra Madhukarrao ...
2021 Latest Caselaw 12013 Bom

                                                                   910-sa-362-2021.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        910 SECOND APPEAL NO.362 OF 2021


               SAMBHAJI MURLIDHAR BADGUJAR AND OTHERS
                               VERSUS
                DHARMENDRA MADHUKARRAO SANDANSHIWE

                                        ...
                 Advocate for Appellants : Mr. Brahme Shailesh P.
                                        ...

                                   CORAM        : SMT. VIBHA KANKANWADI, J.

                                   DATE         : 27.08.2021

ORDER :-


.        Present second appeal has been filed by original defendants to

challenge the concurrent judgment and findings. Present respondent -

original plaintiff filed Regular Civil Suit No.248 of 2012 for possession

and compensation. The said suit was decreed by learned Joint Civil

Judge Senior Division, Dhule on 28.03.2014. The said judgment and

decree was challenged by the present appellant before the learned

District Court, Dhule by filing Regular Civil Appeal No.49 of 2014. It

came to be partly allowed by learned District Judge-3, Dhule on

18.12.2019. The first Appellate Court has decreed the suit partly by

modifying the said decree and directed the defendants i.e. present

appellants to hand over the vacant and peaceful possession of suit shop

910-sa-362-2021.odt

to the plaintiff. Further, a separate inquiry has been ordered for mesne

profits. The prayer for mandatory injunction directing the defendants to

restore the eastern wall in the suit shop and to remove the iron grill as

well as to pay damages to the tune of Rs.3,00,000/- has been rejected.

The appellants intend to challenge those judgment and decrees.

2. Heard learned Advocate Mr. S. P. Bramhe for appellants. In view

of the decision in Ashok Rangnath Magar Vs. Shrikant Govindrao

Sangvikar, [(2015) 16 SCC 763], it is not even necessary to issue notice

to the respondent at this stage. The question of calling upon the

respondent to take part in the second appeal would arise only when the

substantial questions of law as contemplated under Section 100 of the

Code of Civil Procedure are pointed out by the appellants.

3. Taking into consideration the evidence that is adduced by the

plaintiff, both the Courts have held that the plaintiff is the owner of the

property and in fact, it is not in dispute as such. It is also not in dispute

that the defendant is currently possessing the suit shop, which is block

No.14 in Gurudatta Shop Centre. According to the plaintiff, he had

inducted the defendant as gratuitous licensee, but then the defendant

had taken defence that there was oral agreement to sell. In order to

prove the said oral agreement, it appears that the defendant has

910-sa-362-2021.odt

examined three witnesses, however, they have been disbelieved. The

fact has also been noted that the defendant had purchased four shops in

the same complex by executing sale deed and then why he could have

not got the sale deed executed was the question raised. Further, it

appears that in the written statement, defendants - appellants had not

prayed for specific performance of the contract. On the evidence that

has been assessed and it can be said that there is a detailed and correct

assessment of the evidence, it has been held that the defendant is

gratuitous licensee. There was no question of limitation since the

plaintiff had proved that the possession of defendants was permissive in

nature and it would come to an end only when the permission is

withdrawn and, therefore, no substantial questions of law as

contemplated under Section 100 of the Code of Civil Procedure are

arising in this case requiring admission of the second appeal. Second

appeal, therefore, stands dismissed.

[SMT. VIBHA KANKANWADI, J.]

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