Bombay High Court
Laxman S/O Bhika Paighan vs Shankarrao Pandurang Paighan And ... on 22 March, 2022
Bench: Manish Pitale
1/4 929-SA 99.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 99 OF 2022
Laxman s/o Bhika Paighan vs. Shankarrao Pandurang Paighan and others
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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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Mr. D. S. Khushlani, Advocate for appellant.
CORAM : MANISH PITALE J.
DATE : 22/03/2022
By this appeal, the appellant is
challenging concurrent judgments and orders passed
by the two Courts below, whereby a decree for
recovery of possession has been passed in favour of
the respondents(original plaintiffs).
2. The respondents filed the aforesaid suit
for recovery of possession on the basis that they were
the absolute owners of the suit property after the
demise of their Predecessor i.e. their father. It was
claimed that the appellant was allowed to reside in
the suit property i.e. accommodation in question till
Diwali Festival of the year 2006 by the Predecessor of
the respondents. He was supposed to handover
vacant possession of the property after the Diwali
Festival in the year 2006. It appears that the
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2/4 929-SA 99.2022
appellant continued in the suit property. The father
of the respondents did issue notice on 12/12/2006 to
the appellant to handover vacant possession, but the
appellant refused to do so and continued in
possession. Thereafter, the father of the respondents
expired and it was in the year 2012 that the
respondent filed the suit for recovery of possession.
The appellant principally raised defence that the
property in question was joint family property and
that the respondents were not the absolute owners,
thereby claiming that the suit for recovery of
possession could not have been filed by the
respondents. In the backdrop of such defence taken
by the appellant, the trial Court framed issues on the
question as to whether the respondents were the
absolute owners of the suit property and whether the
respondents proved that the appellant had continued
illegally in possession of the suit property and that he
was a trespasser. After appreciating oral and
documentary evidence on record, the suit was
decreed in favour the respondents herein. Aggrieved
by the same, the appellant filed first appeal before the
District Court. The appeal was also dismissed. The
present appeal has been filed challenging the
concurrent orders passed by the two Courts below.
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3/4 929-SA 99.2022
3. Mr.Khushlani, learned counsel appearing
for the appellant contended that when the father of
the respondents had failed to file any proceedings in
pursuance of the notice issued in the year 2006, the
respondents were not entitled to maintain the suit in
the year 2012 for recovery of possession. It was
submitted that in the absence of issuance of any
notice to the appellant, the respondents could not
have directly proceeded to file the suit for recovery of
possession.
4. A perusal of the impugned judgments and
orders passed by the two Courts below would show
that although submission in this regard appears to
have been made for the first time before the appellate
Court, the nature of defence raised on behalf of the
appellant before the Court below was concerned
more particularly with the question as to whether the
respondents could be said to be absolute owners of
the suit property.
5. Even otherwise, the case of the
respondents was that the appellant was illegally in
possession of the suit property and that he was a
trespasser. It is on the basis of such pleadings of the
parties that oral and documentary evidence was led
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and the Courts below decided the issues that arose
for consideration.
6. This Court is of the opinion that the
principal contention sought to be raised in this appeal
was not canvassed before the two Courts below. Even
otherwise, the learned counsel for the appellant was
unable to demonstrate as to what prejudice was
caused to the appellant even if the respondents
directly filed the suit for recovery of possession before
the trial Court. It was the specific case of the
respondents that the appellant was a rank trespasser
and that being absolute owners of the suit property,
they were entitled to recovery of possession thereof.
7. In view of the above, this Court is unable
to agree with the learned counsel for the appellant
that any substantial question of law arises in the
present appeal. No error can be attributed to the
findings rendered by the two Courts below and
therefore, the appeal is found to be without any
merit. Accordingly, it is dismissed.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:24.03.2022
19:19
KOLHE
