Shri Umakant @ Umesh S/O Laxman ... vs Shri Ramkrishna S/O Balaji ...
2021 Latest Caselaw 12235 Bom

1.SA.87.2020.                                                                                                  1/2


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR

                                        Second Appeal No.87/2020
     Shri Umakant @ Umesh s/o Laxman Randive Vs. Ramkrishna s/o Balaji Randive & Anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                               Court's or Judge's Orders
or directions and Registrar's orders.
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                 Shri C.N. Funde, Advocate for the Appellant.
                 Shri A.K. Choube, Advocate for Respondent No.1.

                 CORAM : S.M. MODAK, J.

DATE : 31st AUGUST, 2021.

As directed yesterday, today I have heard both the sides regarding filing of copy of agreement by the plaintiff with one Dwarkaprasad Choudhary. During arguments, learned Advocate for the appellant raised two more points. One is about limitation (though pleaded in the written statement, not taken a note by the both courts below and no finding) and second is about variance in description of the suit house. That is to say, in the prayer clause of plaint there is a description of 29×60 sq. ft. Whereas the first Appellate Court directed the defendant to handover possession of the house admeasuring 500 sq. ft.

02] In order to continue yesterday's argument, learned Advocate Shri Choube relied upon the judgment in the case of Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones reported in AIR 2006 Supreme Court 3569. It is on the point of the effect of denying the title of the licensor by licensee. The principle laid down in Section 116 of the Evidence Act, 1872 has been elaborated by the Hon'ble Supreme Court. Learned Advocate Shri Choube submitted that the argument about variance in measurement of the suit house cannot be

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raised for the first time before the second Appellate Court. It is submitted that this defect can be cured and decided even when the decree will be put to execution.

03] Learned Advocate for the appellant fairly admits that in the present appeal memo there is no contention about variance in the measurement of the suit house. Even though it may be true, once it is pointed out and once the Court has taken note of it, this Court is bound to enquire about the same. However, in view of the above issue about variance, this Court feels it necessary to peruse the oral evidence adduced by both the parties before the trial Court.

04] Hence, appellant is directed to produce the copies of oral evidence. After perusing the same, this Court will pass appropriate order. Once the copies of oral evidence are filed, this matter will be decided finally at the admission stage itself.

                 05]              Matter be kept on 8th September, 2021.


                                                                  JUDGE


                 vijay