Shri Umakant @ Umesh S/O Laxman ... vs Shri Ramkrishna S/O Balaji ...
2021 Latest Caselaw 14042 Bom

                                                   -1-                                       SA.87.2020



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


                         SECOND APPEAL NO.87 OF 2020


  APPELLANT:-                      Shri Umakant @ Umesh S/o Laxman
(Ori. Defendant)                   Randive, Aged - 45, Occ:- Tailor,
     (On R.A.)                     R/o Plot No.8, Binaki Mangalwari,
                                   Indira Nagar, Nagpur.


                                      ... VERSUS ...

  RESPONDENTS:-                    1. Shri Ramkrishna S/o Balaji Randive
      (Ori. Plaintiff)                Aged - 60, Occ:- Retired,
       (On R.A.)                      R/o Plot No.8, Binaki Mangalwari,
                                      Indira Nagar, Nagpur.

                                   2. Shri Chintaman S/o Narayanrao Yewalekar,
                                      Aged about 60 Yrs., Occ:- Pvt. Business,
                                      R/o Timki, Nagpur.

*******************************************************************************************************
               Shri C.N. Funde, Advocate for the Appellant.
             Shri A.K. Choube, Advocate for Respondent No.1.
*******************************************************************************************************

                         CORAM             :   S.M. MODAK, J.

                         DATE              :   29th SEPTEMBER, 2021

   ORAL JUDGMENT:-

Today, I have heard learned Advocate Shri Funde for the

appellant/original defendant and learned Advocate Shri Choube for the

respondent No.1/original plaintiff.

02] As per the order dated 31st August, 2021, this Court has

directed the appellant to produce copies of evidence. Accordingly, they

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were filed. Both the learned Advocates have advanced their arguments

by referring to the said evidence.

03] According to learned Advocate for the appellant, as the first

Appellate Court has reversed the judgment given by the trial Court,

certainly there are certain substantial questions of law involved which

require interference by this Court. In the memo of appeal in paragraph

10, those substantial questions of law are proposed. Whereas,

according to respondent No.1, in fact, no substantial questions of law

are involved. The respondent No.1 has also filed submission before

admission.

04] After hearing both the learned Advocates at great length, this

Court is inclined to admit the appeal on the following substantial

question of law--

Substantial Question of Law Finding Whether the first Appellate Court was right in reversing the findings In Affirmative given by the trial Court in respect of ownership of the plaintiff over suit property?

05] Admit. Both the parties have consented to decide the appeal

on above substantial question of law. Considering the narrow

controversy, it was taken up for final hearing.

                                           -3-                           SA.87.2020


                                     FILING OF SUIT


06]        It is true that there is a claim and rival claim on behalf of

both the sides. The plaintiff has treated the defendant to be in

possession of the suit structure as a permissive user. Whereas the

defendant has claimed ownership over the suit structure. On one hand,

the defendant has pleaded that the present plaintiff along with one

Chintaman Yewalekar has agreed to purchase the land on which the

structure is standing and the plaintiff could not prove his ownership of

the structure and the land beneath the structure. So also, the defendant

has pleaded that as the land was lying vacant, he has erected a

structure on the said land. It is in the year 1994.

07] Both the parties have adduced oral as well as the

documentary evidence. The plaintiff examined himself and one

Chintaman Yewalekar. He is the person with whom the plaintiff has

agreed to purchase the land on which the suit structure is standing.

Whereas, the defendant examined himself and one Pandhari Namdeo

Tinpatre. The said Pandhari is the neighbour of the defendant. He is

aware about the construction being made by the defendant on plot

No.8. Whereas, one Yadorao Natthuji Kanpate is examined by the

defendant who claims to have taken a contract for erecting the

structure of four rooms on plot No.8.

                                          -4-                          SA.87.2020


08]        Both the sides have also relied upon various documents in the

form of tax receipt, ration card, election commission identity card,

electricity bills etc. The trial Court, after considering the above

evidence, was pleased to observe that "plaintiff could not prove his

ownership over the suit property". The trial Court further observed that

"the plaintiff could not prove his theory of giving temporary

accommodation to the defendant". These were the main issues. Other

issues about suit being barred for non-rejoinder of necessary party was

answered in the negative. The trial Court was pleased to dismiss the

suit mainly because first two issues were answered against the plaintiff.

FIRST APPEAL

09] The plaintiff was successful when he filed the first appeal.

The first Appellate Court has considered the documents filed by both

the parties vis-a-vis their pleadings. On the basis of documentary

evidence filed by the plaintiff, the first Appellate Court concluded that

they are sufficient to presume about the ownership of the plaintiff over

the suit property. After balancing the documentary evidence filed by

the plaintiff on one hand and the documentary evidence filed by the

defendant on the other hand, the first Appellate Court observed that

the documentary evidence filed by the plaintiff is required to be given

more weightage.

                                            -5-                                    SA.87.2020


10]           The first Appellate Court has also discussed about the

contention of the defendant of a construction of a permanent structure

on the land. The first Appellate Court observed that "the construction

of house is one thing and the construction of a permanent nature is

another thing. The evidence adduced by the defendant do suggest that

it was a permanent construction". However, the first Appellate Court

concluded that "this evidence do not suggest that the defendant

constructed the house which was there on the land originally".

SECOND APPEAL

11] These findings are challenged by the defendant before this

Court. There is emphasis on behalf of the defendant that the first

Appellate Court has erred in interpreting the principles of law as to

proof of ownership. According to learned Advocate for the

defendant/appellant, the documents relied upon by the plaintiff are not

the documents of title. According to him, the land on which the suit

structure is standing was agreed to be purchased by the plaintiff along

with one Chintaman Yewalekar. Those documents were not proved.

12] During the arguments, my attention is also invited to the

operative order passed by the first Appellate Court. There is a direction

to the defendant to handover the possession of the suit property

admeasuring 500 sq. ft. Whereas, in the prayer clause of the plaint, the

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plaintiff has described the suit property as land admeasuring 29×60 sq.

ft. on which the house is constructed.

13] Learned Advocate for the appellant invited my attention to

variances about the description of the suit property in the plaint. He

also relied upon a judgment in the case of A. Subramanian & Another

Vs. P. Pannerselvam1. It says about necessity to ask for declaration of

title and mere asking the relief of permanent injunction is not enough.

The Hon'ble Supreme Court on the basis of facts of that case "held that

it was not necessary to ask for declaration of title and simplicitor suit

for injunction was held maintainable". In that matter there was a

finding about title in previous litigation between the parties and hence

those observations.

14] As against this, learned Advocate Shri Choube submitted that

an enquiry as to title of the plaintiff needs to be conducted in the light

of the pleadings in the plaint. According to him, he along with

Chintaman Yewalekar has agreed to purchase the land admeasuring

5200 sq. ft. and out of which half of the portion of the land belongs to

the plaintiff. He submitted that the half of the structure i.e. 500 sq. ft. is

standing on the land belongs to the plaintiff. He has brought to my

notice to the various documents filed by the plaintiff in support of the

1 (2021) 3 SCC 675

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ownership over the structure. According to him, the defendant who

was a relative of the plaintiff was permitted to use the structure as he

was taking education and he came to Nagpur for that purpose. He also

submitted that the theory of permissive possession was not specifically

denied by the defendant in the written statement.

15] He relied upon a judgment in the case of Bansraj Laltaprasad

Mishra Vs. Stanley Parker Jones2. It has been observed that the title of

the licensor cannot be allowed to be disputed by the licensee in view of

the provisions of Section 116 of the Indian Evidence Act, 1872. In

paragraph 16 of the said judgment, the Hon'ble Supreme Court has

reiterated the necessity of incorporating principle of estoppel in the

Indian Evidence Act. It has been observed that "it is based upon healthy

and salutory principle of law and justice that a tenant who could not

have got possession but for the contract of tenancy admitting the right

of the landlord should not be allowed to launch his landlord in some

inequitable situation".

CONCLUSION

16] On the above background, I have perused the findings given

by the first Appellate Court. On going through them, this Court is of the

opinion that the first Appellate Court has not committed any wrong in

appreciating the evidence. In fact, the trial Court has misdirected

2 AIR 2006 SC 3569

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himself while appreciating the evidence. It is important to note that the

suit property is the structure admeasuring 500 sq. ft. The plaintiff in

the plaint as well as in his evidence has clarified about the nature of the

suit property. Those references are as follows:-

a) The suit house bears No.1732/8, wrongly typed as 1732/B.

This is owned by the plaintiff and one Chintaman Yewalekar.

b) Total area of the land is 5200 sq. ft.

c) There is a division of the plot and of the house. Half of the land is in possession of the plaintiff.

d) The plaintiff is the owner of the structure admeasuring 500 sq. ft.

17] The prayer Clause (i) of the plaint is reproduced below--

i. "to pass a decree for possession of the land which admeasures 29×60 in which house is constructed and the same is in possession of the defendant and be further pleased to put the present plaintiff in possession thereof."

18] As against this, in the written statement the defendant has

pleaded that (a) he constructed kaccha house in the year 1994 on the

suit plot and (b) pakka construction was done of two rooms

admeasuring 12×12 i.e. 144 sq. ft.

19] From the above, it is clear that the plaintiff is claiming the

possession of the structure of 500 sq. ft. He is not claiming the

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possession of the land. As such, the Court is supposed to conduct

enquiry about title of the plaintiff by keeping in mind what is the

nature of the property. If it is structure, enquiry has to be conducted in

respect of structure. If it could have been the land on which the

structure is standing, the defendant ought to have been right in

submitting that the plaintiff has not proved the ownership of the land

on which the structure is standing.

20] The trial Court has not correctly appreciated the evidence.

The first Appellate Court in paragraphs 10 and 11 has referred to the

documents filed by the plaintiff and the defendant. While concluding

about the ownership of the plaintiff over the suit structure, the first

Appellate Court had laid emphasis on the tax receipt. It was rightly

considered as a public document.

21] As against this, the documents of the defendant are also

referred in paragraph 11. Some of them do suggest the address of the

defendant as that of suit property. The first Appellate Court rightly

observed that these documents even though do suggest about the

possession of the suit structure, they do not suggest that the defendant

is owner of the suit structure, as pleaded by him. The defendant has

not produced single document to show that he has been recorded as

owner of the suit structure. The local authority used to tax the structure

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even though unauthorised. It is not there. The oral evidence of three

witnesses including the defendants are not sufficient enough to

non-suit the plaintiff. So, I don't find any perversity so far as

appreciation of this evidence is concerned.

22] In paragraph 12, the first Appellate Court has also rightly

appreciated the evidence adduced by the defendant. The defendant

examined witnesses to show that he has made permanent construction.

The first Appellate Court rightly observed that "this evidence do

suggest carrying out permanent construction, but they do not suggest

that the defendant has constructed the house originally". I do not find

any reason to treat this finding being perverse.

23] I do not think that the observations in the case of

A. Subramanian (supra) will be helpful to the defendant. Herein the

plaintiff has considered the defendant as the permissive user. The

observations are given on the basis of the facts of that case. Even they

do not support the proposition canvassed before this Court. In every

case, declaration as to title is not required. It depends upon the facts of

each case. If the Court feels that on the basis of the documents the

Court can conclude about the ownership of the plaintiff over the suit

property, the plaintiff cannot be non-suited merely because declaration

of title has not been sought. Whereas, the Hon'ble Supreme Court in

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the case of Bansraj Laltaprasad Mishra (supra) has observed that what

will be effect if the licensee will deny the title of the licensor. Herein

the case pleaded by the plaintiff is about permissive possession. It was

without accepting any sum. The defendant though pleaded ownership,

could not prove it. Hence, the principle laid down under Section 116 of

the Evidence Act comes into picture.

AMBIGUITY ABOUT SUIT PROPERTY

24] If we read the operative order passed by the first Appellate

Court, what we find is that the first Appellate Court has referred the

suit property as 500 sq. ft. structure. Further description of the land on

which the structure is standing and the location is also mentioned. If

we see this description on one hand and the description of the suit

property given in the relief clause of plaint on the other hand, we find

that in the relief clause plaintiff has not mentioned the area of the

structure. He has just mentioned the area of the land on which the

structure is standing.

25] In the body of plaint, he has described the measurement of

the structure as 500 sq. ft. In fact, while passing the operative order, it

is clear that the first Appellate Court has taken utmost care in order to

rule out the possibility of any difficulty, if the decree is put to

execution. So, there is every reason to believe that while passing the

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operative order, the first Appellate Court has considered the description

given in the prayer clause of the plaint. So, I do not think that there is

any ambiguity in the operative order.

26] In view of the above discussion, I answer the question in the

affirmative. Hence, the appeal stands dismissed.

27] Pending application, if any, stands disposed of.

(S.M. MODAK, J.)

vijay