Prabhakar Sadashiv Chandane And ... vs Srinivas Laxman Dombe
2021 Latest Caselaw 3050 Bom

                                                                           18 SA st 92824-20



                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
Sneha N.
Chavan                                SECOND APPEAL (ST) NO. 92824 OF 2020
Digitally signed by
Sneha N. Chavan       Prabhakar Sadashiv Chandane & Ors.            .. Appellants
Date: 2021.02.16
19:21:16 +0530             V/s.


                      Srinivas Laxman Dombe                         ..Respondent
                                                    ----
                      Mr. Sanjiv Sawant a/w Abhishek Deshmukh for the Appellants.

                      Mrs. Jai Kanade a/w Vaibhav Gaikwad for the Respondent.
                                                     ----
                                          CORAM        : C.V. BHADANG, J.
                                             RESERVED ON : 12th FEBRUARY, 2021
                                          PRONOUNCED ON : 16th FEBRUARY, 2021

                                                     :JUDGMENT:

1. The appeal is heard finally, by consent of parties, on the

following substantial question of law:

Whether the first appellate court was justified in not adverting

to the finding recorded by the learned Trial Court on 03.10.2015

while dismissing the appeal?

2. The challenge in this appeal is to the judgment and order

dated 06.07.2020 passed by the learned District Judge at Sangli in

Regular Civil Appeal No. 292 of 2010. By the impugned judgment,

the appeal filed by the appellants (original defendants) has been

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dismissed, thereby confirming the Judgment and Decree dated

15.10.2010 in Regular Civil Suit No. 9 of 2006 passed by the learned

Civil Judge Junior Division at Vita, District Sangli.

3. The brief facts are that the aforesaid suit was filed by the

respondent(original plaintiff), for permanent injunction restraining

the appellants from interfering with the possession of the plaintiff

over the suit property. It appears that the subject matter of dispute

is land Survey No. 430/2 admeasuring 39 R situated at Kasbe Vita

out of which the plaintiff claims to have a share of 10 aana and 10

paisa. For the limited purpose of deciding this Second Appeal, it is

not necessary to set out the averments in details.

4. The appellants resisted the suit inter alia on the ground that

the plaintiff has executed various sale deeds in their favour by

accepting consideration and on the same day, the possession of the

suit property was handed over.

5. On the basis of the rival pleadings, the learned Trial Court

framed in all five issues as under:

     Sneha Chavan                                                   page 2 of 9
                                                        18 SA st 92824-20

1. Whether plaintiff proves that sale deeds of suit property executed in the name of defendants are executed only for security of hand loan?

2. Whether plaintiff proves that suit property is in his possession as owner?

3. Whether plaintiff proves that defendant caused obstruction to his possession?

4. Whether plaintiff is entitled for injunction?

5. What order?

6. The parties led oral and documentary evidence. The learned

Trial Court by a judgment and decree dated 15.10.2010 decreed the

suit. Feeling aggrieved, the appellants challenged the same before

the learned District Judge in Regular Civil Appeal No. 292 of 2010.

It appears that before the learned District Judge, the respondent

filed an application Exhibit 39 purportedly under Order 41 Rule 27

of Code of Civil Procedure, 1908. It was contended that it is

necessary to bring certain facts and circumstances on record, which

are subsequent to the filing of the appeal, which would further

substantiate the case of the respondent as to the possession of the

suit property. The respondent sought to produce documents at

Exhibit 37/1 to 37/7. It was contended that some of the documents

are private documents and remaining are public documents. The

respondent by virtue of the application Exhibit 39 sought

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permission to lead evidence and for that matter requested for

remitting the matter to the learned Trial Court.

7. The learned District Judge by an order dated 15.09.2014

allowed the application and the documents at Exhibit 37/1 to 37/7

were directed to be sent to the learned Trial Court along with the

entire record, for the purpose of recording additional evidence and

then to return a finding on the aforesaid issue.

8. The record discloses that the parties led evidence before the

learned Trial Court and the learned Trial Court by a judgment and

order dated 03.10.2015 found that respondent failed to prove his

lawful possession over the suit property "pertaining to the document

filed in first appeal at Exhibit 37/1 to 37/7". The said finding was

submitted before the first appellate court.

9. Thereafter, the appeal was taken up for hearing and by the

impugned Judgment and Decree, the same has been dismissed.

Hence, this appeal.

10. I have heard Mr. Sawant, the learned counsel for the

appellants and Mrs. Kanade, the learned counsel for the respondent.

      Sneha Chavan                                              page 4 of 9
                                                      18 SA st 92824-20

With the assistance of the learned counsel for the parties, I have

gone through the record.

11. It is submitted by Mr. Sawant, the learned counsel for the

appellants that the first appellate court failed to refer to or consider

the finding recorded by the learned Trial Court on 03.10.2015. It is

submitted that it was the respondent, who sought the production of

the documents and a leave to lead evidence on the same, which was

granted. It is submitted that after which the parties led oral

evidence before the Trial Court on the said documents and the

learned Trial Court recorded a finding, which is against the

respondent. It is submitted that therefore, it was necessary for the

first appellate court to have at least considered the said finding

while deciding the appeal. It is submitted that therefore, the

judgment of the first appellate court is vitiated.

12. Mrs. Kanade, the learned counsel for the respondent has

supported the impugned judgment. It is submitted that even prior

to the said documents being remitted to the learned Trial Court, the

learned Trial Court had on the basis of the evidence already led,

recorded the finding that the plaintiff was in possession. It is

submitted that the documents, were sought to be produced only in

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order to support/further reinforce the said finding. It is submitted

that thus, notwithstanding the finding recorded by the learned Trial

Court on 03.10.2015, the first appellate court was justified in

dismissing the appeal on the basis of the evidence already led i.e.

prior to the documents being sent to the Trial Court. She, therefore,

submitted that no case for interference is made out.

13. I have considered the rival circumstances and the submissions

made.

14. It is necessary to note that it was the respondent/plaintiff who

himself had sought production of the documents and a leave to

adduce additional evidence on the said documents before the

learned Trial Court, which application was allowed on 15.09.2014.

After this, the parties led evidence before the Trial Court. The Trial

Court considered the following issue, which was referred by the

appellate court for consideration and finding.

Does plaintiff prove his lawful possession over the suit

property pertaining to the documents filed in this first appeal at

Exhibit 37/1 to 37/7?

      Sneha Chavan                                                page 6 of 9
                                                      18 SA st 92824-20

The learned Trial Court after considering the evidence, passed

the following operative order:

"ORDER Plaintiff does not prove his lawful possession over the suit property pertaining to the documents filed in first appeal at Exhibit 37/1 to 37/7.

In view of directions given in R.C.A. No. 292 of 2010, findings recorded on referred point along with R & P be sent to the court of Hon'ble District Judge-2 forthwith."

15. A perusal of the impugned judgment of the first appellate

court shows that the appellate court has not even adverted to this

finding. This is not a case where the appellate court after

considering the said finding has chosen to rely upon the evidence

earlier led and then proceeded to dismiss the appeal. Such a course

was obviously open to the appellate court, inasmuch as, the finding

recorded by the learned Trial Court which was returned vide order

dated 03.10.2015 was subject to confirmation by the appellate

court. However, it is one thing to say that the Appellate court after

having due regard to the said finding and assessing the evidence

already led (prior to the remittance of the issue) coming to the

conclusion that the plaintiff is in possession. However, it is an

altogether different thing where there is total non-consideration of

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the said finding. In my considered view for this reason alone, the

matter is required to be remitted back to the first appellate court for

deciding the appeal afresh on its own merits and in accordance with

law.

16. At one stage, it was submitted by the learned counsel for the

respondent that if at all this court is inclined to remit the appeal

back, the seisin in the present appeal be retained and the Appellate

Court may only be directed to consider the finding recorded vide

Judgment and Order dated 03.10.2015 and decide the appeal

afresh. The learned counsel for the appellants opposed any such

course of action.

17. In my considered view, it would be appropriate that the entire

appeal is remitted back to the first appellate court for deciding it

afresh and in accordance with law. Both the parties will get

adequate opportunity and to deal with the evidence led as well as

the finding recorded on the documents Exhibit 37/1 to 37/7.

18. In that view of the matter, the point is answered in the

negative and the following order is passed:

      Sneha Chavan                                              page 8 of 9
                                                      18 SA st 92824-20


                                  ORDER

(i)       The appeal is partly allowed.

(ii)      The impugned Judgment and Decree is hereby set aside.

(iii)     Regular Civil Appeal No. 292 of 2010 is hereby restored to the

file of the learned District Judge at Sangli for disposal according to

law. In the light of the observations made in paragraphs 16 of the

judgment.

(iv) The parties to remain present before the learned District

Judge on 08.03.2021.

(v) It will be open to the learned District Judge to consider the

grant of interim relief, if any, if so applied on its own merits and in

accordance with law.

(vi) The interim relief already operating in this appeal shall

continue till 15.03.2021.

(vii) In the circumstances, there shall be no order as to costs.

(viii) A decree be drawn accordingly.

C.V. BHADANG, J.

       Sneha Chavan                                              page 9 of 9