Mohammad Sahir Mohammad Sharif ... vs Mustafa Ibrahimsab Ghante And Ors
2021 Latest Caselaw 9431 Bom

                                                                          904-sa-296-2021.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                         904 SECOND APPEAL NO.296 OF 2021
                         WITH CA/6335/2021 IN SA/296/2021

    MOHAMMAD SAHIR MOHAMMAD SHARIF HAMDULE DIED THR LRS
                JAVED SAHIR HAMDULE AND ORS
                              VERSUS
            MUSTAFA IBRAHIMSAB GHANTE AND ORS
                                  ...
          Advocate for Appellants : Ms. Dube Anjali (Bajpai)
                                  ...

                                       CORAM         : SMT. VIBHA KANKANWADI, J.

                                       DATE          : 17.07.2021

ORDER :-


.         Heard       learned       Advocate    appearing      for    appellants/original

plaintiffs.

2. Being aggrieved and dissatisfied with the judgment and decree

dated 10.03.2021 passed by the learned Principal District Judge, Latur

in Regular Civil Appeal No.73 of 2018 thereby confirming the judgment

and decree dated 13.04.2018 passed by the learned Civil Judge Senior

Division, Latur in Regular Civil Suit No.580 of 2011 thereby dismissing

the said suit filed by the plaintiffs; the plaintiffs have filed present

second appeal.

3. Present appellants had filed the said suit simpliciter for injunction,

however, both the Courts below have dismissed the suit and the appeal

904-sa-296-2021.odt

respectively mainly on the ground that they have held that the plaintiffs

have failed to prove their possession over the suit property in the

capacity as tenant.

4. It appears to be it is not in dispute that in the suit property which

is definitely belonging to defendant No.1 father of the original plaintiff

was inducted as tenant in the year 1956 and it was for business purpose

as he was running a welding workshop under the name and style 'Harun

welding works'. It appears that initially the rents were accepted,

however, later on somewhere in the year 2002, the rent was refused and

therefore, the proceedings before the Rent Controller were taken up.

Money orders were sent, but not accepted. It has been further

contended by the plaintiff that the defendant asked him to vacate and he

tried to take the possession forcibly from the plaintiff on 05.11.2011 and

thereafter, also on two three occasions such threats were given and

therefore, suit was filed.

5. The suit was objected/resisted on the ground that Mohammad

Sharif Hamdule was running the said shop. During the lifetime of

Mohammad Sharif, he and his son Harun had paid the rent. After

demise of Mohammad Sharif, Harun continued the business and

according to defendant No.1, after demise of Harun, his sons Irfan and

Rizwan are conducting the business. According to defendant No.1,

904-sa-296-2021.odt

plaintiff has no right, title or interest in the suit property. He is claiming

tenancy malafidely.

6. After the evidence was led, both the Courts below have

interpreted that the original plaintiff has failed to prove that the tenancy

was devolved on him.

7. Perusal of the judgments would also show that there were two

suits i.e. Regular Civil Suit No.126 of 2014 and Regular Civil Suit

No.428 of 2014. At this stage, there is no record produced by the

appellants to show that there is connection between those suits and the

present suit. Reference can only be seen of these suits in the judgment

of the learned Trial Court and therefore, before taking the decision

whether to admit the second appeal or not, it is necessary to consider

the record. It is not necessary to issue any notice to the defendants at

this stage.

8. Call record and proceedings.

9. Place the matter for further consideration on 04.08.2021.

[SMT. VIBHA KANKANWADI, J.]

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