Bombay High Court
Manikrao Keshavrao Kulkarni And ... vs Rangnath Maruti Bhise Died Lrs ... on 5 May, 2022
Bench: Mangesh S. Patil
936 SA 186 15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 186 OF 2015
1) Manikrao s/o Keshavrao Kulkarni,
Age 75 years, Occ. Agriculture,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
2) Shriram s/o Keshavrao Kulkarni,
Age 65 years, Occ. Agriculture,
R/o. As above. ... Appellants.
( Plaintiff Nos. 2 & 3)
VERSUS
1) Rangnath s/o Maruti Bhise,
died through his L.Rs.
1A) Mudrikabai w/o Rangnath Bhise
(deleted)
1B) Sampat s/o Rangnath Bhise,
Age 55 years, Occ. Agriculture,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
1C) Dilip s/o Rangnath Bhise,
Age 52 years, Occ. Agriculture.
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
1D) Prakash s/o Rangnath Bhise,
Age 49 years, Occ. Agriculture,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
1E) Prabhakar s/o Rangnath Bhise,
Age 46 years, Occ. Agriculture,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
1F) Sau. Pushpabai w/o Babruwan Yadav,
Age 43 years, Occ. Housewife,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
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936 SA 186 15.odt
1G) Sau. Kanchan w/o Dilip Dhage,
Age 40 years, Occ. Household,
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
1H) Sau. Surekha w/o Satish Shinde,
Age 37 years, Occ. Household.
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad. ... Defendant.
2) Vasantrao s/o Keshavrao Kulkarni
Died through his L.Rs.
2A) Indumati w/o Vasantrao Kulkarni, ... Respondents.
Age 55 years, Occ. Household, (Plaintiff No. 1)
R/o. Ekurga, Tq. Kallam, Dist.
Osmanabad.
...
Advocate for the Appellants : Mr. Chavan P.S.
Advocate for the Respondent Nos. 1B to 1H : Mr. Bhapkar S.B.
WITH
SECOND APPEAL NO. 294 OF 2012
WITH CA/326/2016 IN SA/294/2012 WITH CA/5944/2012 IN
SA/294/2012
Rangnath s/o Maruti Bhise,
Died through legal heirs.
1) Mudrikabai w/o Rangnath Bhise,
Age 80 years, Occ. Household,
R/o. Ekurka Tq. Kallam, Dist.
Osmanabad.
2) Sampat s/o Rangnath Bhise,
Age 56 years, Occ. Agriculture.
R/o. As above.
3) Dilip s/o Rangnath Bhise,
Age 53 years, Occ. Agriculture,
R/o. As above.
4) Prakash s/o Rangnath Bhise,
Age 45 years, Occ. Agriculture,
R/o. As above.
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936 SA 186 15.odt
5) Prabhakar s/o Rangnath Bhise,
Age 42 years, Occ. Agriculture,
R/o. As above.
6) Sau. Pushpabai w/o Babruwan Yadav,
Age 60 years, Occ. Household,
R/o. As above.
7) Sau. Kanchan w/o Dilip Dhage,
Age 58 years, Occ. Household,
R/o. As above.
8) Sau. Surekha w/o Satish Shinde,
Age 38 years, Occ. Household,
R/o. As above. .... Appellants.
(Defendants )
VERSUS.
1) Vasant s/o Keshavrao Kulkarni,
Died through legal heirs.
1A) Indumati w/o Vasantrao Kulkarni,
Age 60 years, Occ. Household,
R/o. Ekurka, Tq. Kallam, Dist.
Osmanabad.
2) Manikrao s/o Keshavrao Kulkarni,
Age 60 years, Occ. Agriculture,
R/o. As above.
3) Sitaram s/o Keshavrao Kulkarni,
Age 57 years, Occ. Agriculture,
R/o. As above.
...
Advocate for the Applicant : Mr. Bhapkar S.B.
Advocate for the Respondent Nos. 1A, 2 & 3 : Mr. P. S. Chavan.
...
CORAM : MANGESH S. PATIL, J.
DATE : 05.05.2022.
PER COURT :
Both the sides that is the original plaintiffs and the defendant are in
936 SA 186 15.odt
second appeal being aggrieved and dissatisfied by the judgment and order
passed by the lower appellate court in the first appeal of the defendant
against a decree for possession on the basis of title passed by the trial court.
2. The Second Appeal No. 294/2012 was dismissed in default. Having
heard both the sides, the Civil Application No. 326/2016, for the reasons
mentioned in the application is allowed and that second appeal is restored.
3. Both these second appeals deserve to be admitted on following
substantial question of law :
When the suit for possession based on title, of the
encroached portion was decreed by the trial court, whether
it was within the jurisdiction of the lower appellate court,
in an appeal preferred by the defendant to direct a market
price of the disputed portion to be ascertained and paid to
the plaintiffs within a stipulated time along with interest,
apparently, in lieu of their claim for possession that too
without going into the merits of the matter ?
4. I have heard the learned advocates of both the sides on the
aforementioned substantial question. For the sake of arguments the parties
would be referred to hereinafter by their status in the suit.
5. The plaintiffs claimed that they are the owners of the Grampanchayat
House No. 37 totally admeasuring 98 feet east-west and 46 feet sough-
north. It was averred that the defendant had encroached over a 15 x 46
feet portion of the western side. A rough sketch was also annexed to the
plaint and this portion was described as the suit property. The defendant
contested the suit inter alia on the ground of adverse possession but it was
subsequently given up. After framing necessary issues and conducting the
hearing, the suit was partly decreed. The defendant was directed to hand
over vacant possession of the suit property within two months of the decree
936 SA 186 15.odt
and was perpetually restrained from causing obstruction to plaintiffs'
possession over the entire house property.
6. Being aggrieved and dissatisfied, the defendant challenged the
judgment and decree by preferring an appeal before the District Court. By
the judgment and order under challenge, the learned Judge has allowed the
appeal partly and replaced the operative part with following directions :
"The appeal is allowed in part. No costs.
Impugned judgment and decree is set aside and replaced as
under :
"Regular Civil Suit No. 50/85 is decreed in part with costs".
The defendants shall pay market price of the disputed
portion of suit house as on date of decree of this appeal, as
damages to plaintiff within 2 months from the date of
receipt of report of the Valuer, failing which the amount
shall carry interest at the rate of 9% p.a., till the amount is
realized.
For the purpose of ascertaining the price for disputed
portion of suit house, the City Survey Officer shall be
appointed as Valuer-Court Commissioner, who shall make a
local enquiry, consider the prices in the vicinity, taking into
account the sale-deeds, if any, and determine the market
price of the disputed portion of the suit house as on date of
decree of this appeal and submit his report within one
month from the date receipt of commission patra.
The Commission costs, fees and all expenses shall be borne
by the defendant/appellants.
A preliminary decree be drawn up accordingly."
7. Pertinently, the learned Judge had formulated the points for
determination strictly as contemplated under Order XLI of the Code of Civil
Procedure, regarding title of the plaintiffs and possession of the defendant
936 SA 186 15.odt
over the suit property. Though he held that the plaintiffs were the owners of
the suit property and it was in possession of the defendant, it was held that
the remedy of delivery of possession was not the adequate remedy and it
would be appropriate to award damages instead of directing possession to
be delivered.
8. In my considered view, this was a clear instance of abdication of its
duty by the lower appellate court. Intentions apart, when a decree for
possession was under challenge, the lower appellate court could not have
devised a substitute. Either it could have dismissed the appeal or could have
allowed it quashing and setting aside the decree passed by the trial court. It
would be a complete deviation from the well recognized modes of deciding
an appeal under Section 96 of the Code of Civil Procedure. Once having
held that the conclusion drawn by the trial court regarding title of the
plaintiffs to the suit property was correct as also the finding that the suit
property was in possession of the defendant was also found to be proper,
one cannot comprehend as to how any other order could have been passed
like the one awarding damages in lieu of the right of the plaintiffs to claim
possession. The direction to pay damages is clearly de hors the provision of
any law.
9. In view of such state of affairs, in my considered view the interest of
justice demands that the parties are relegated before the lower appellate
court so that it gets an opportunity to decide the appeal on its own merits.
Hence I answer the aforementioned substantial question accordingly.
10. The Second Appeals are partly allowed. The impugned judgment and
order passed by the lower appellate court in Regular Civil Appeal No.
35/2002 is quashed and set aside. The appeal stands remanded to the
lower appellate court under Order XLI Rule 23A of the Code of Civil
Procedure.
11. The parties shall appear before the lower appellate court on
936 SA 186 15.odt
06.06.2022 and there shall be no need for it to issue any notice to them.The
lower appellate court shall then decide the appeal on its own merits afresh
by extending an opportunity of being heard to both the sides and without
being influenced by any observations made herein above.
12. The appeal shall be decided within a period of six months from the
receipt of the record and proceeding, which may be sent back immediately.
13. Pending Civil Applications are disposed of.
(MANGESH S. PATIL, J.)
mkd/-
