[Cites 12, Cited by 0]
Bombay High Court
Mrs.Rutuja Adhik Khanolkar vs Mr.Satish Tukaram Sawant And Others on 11 December, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:54544
SA.372.2019.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 372 OF 2019
WITH
CIVIL APPLICATION NO. 1574 OF 2018
IN
SECOND APPEAL NO. 372 OF 2019
Mrs. Rutuja Adhik Khanolkar .. Appellant
Versus
Mr. Satish Tukaram Sawant .. Respondent
....................
Mr. Amogh Singh, i/b Mr. Chintan Shah and Mrs. Anusha Amin
Advocates for Appellant.
Mr. Sachin Ramrao Pawar a/w Mr. Dewang S. Mhatre, Advocates
for Respondent.
....................
CORAM : MILIND N. JADHAV, J.
DATE : DECEMBER 11, 2025.
P.C.:
1. Heard Mr. Singh, learned Advocate for Appellant and Mr.
Pawar, learned Advocate for Respondent.
2. This Second Appeal is filed challenging the Judgment dated
31.08.2018 passed by the Learned District Judge, Thane in Regular
Civil Appeal No. 26 of 2016. Regular Civil Suit No. 1495 of 2012 was
filed by Plaintiffs in the Court of Joint Civil Judge, Junior Division,
Thane seeking declaration of their title in Flat No.8, Kasturi
Cooperative Housing Society, Mumbai Pune Road, Kalwa, Thane West
(for short "suit flat").
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3. By Judgment dated 01.12.2015, the Suit was decreed by the
Trial Court declaring Plaintiffs title in suit flat. By Judgment dated
31.08.2018, the First Appeal filed by Appellant was dismissed by the
learned Joint District Judge, Thane. Hence the present Second Appeal.
4. On 24.06.2024, this Court admitted the Second Appeal and
framed the following substantial questions of law:-
(i) Whether both the Courts ignored the specific plea
of the plaintiff that defendant no. 2 was inducted in
the suit property as a gratuitous licensee?
(ii) Whether the Courts ought to have taken into
consideration the legal principles settled in the
decision of Prabhudas Damodar Kotecha and another
vs. Smt. Manharbala Jeram Damodar and Ors1and
framed an issue on the jurisdiction of the Civil Court to
decide the suit which was filed on the ground that
defendant no. 2 was inducted in the suit premises as a
gratuitous licensee?
(iii) Whether the findings recorded by both the Courts
on the suit being within the limitation is by proper
appreciation of pleadings on record?
5. For the sake of convenience, parties herein shall be referred
to by their nomenclature before the Lower Courts.
6. Briefly stated, one Late Sulochana Tukaram Sawant was the
sole proprietress of M/s Konark Construction Company. She had five
children comprising of three daughters (Original Plaintiff Nos. 2 to 4)
and two sons (Original Plaintiff Nos. 1 to 5) one of whom namely
Satish Tukaram Sawant (for short "Plaintiff No. 1") constructed a
1 (2013) 15 SCC 358
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building having 20 flats nomenclatured as Kasturi Co-operative
Housing Society (for short "said Society"). All flats in said Society
were sold except suit flat. The building was duly registered as
Cooperative Housing Society by law.
6.1. One Late Nirmala Nilkantha Brid (for short "Original
Defendant No. 2") was the sister of Late Sulochana Tukaram Sawant
and Late Sulochana Tukaram Sawant permitted Original Defendant
No. 2 along with her son Prakash Brid to occupy suit flat and said
Society issued Share Certificate No.18 in the name of Prakash Brid
with respect to suit flat. On 11.11.1992 Prakash Brid expired and
thereafter Original Defendant No. 2 continued to reside in suit flat.
6.2. On 26.05.2005, Late Sulochana Tukaram Sawant expired
and thereafter name of Original Defendant No. 2 came to be added on
Share Certificate No.18 in respect of suit flat. On 24.09.2009 daughter
of Original Defendant No. 2 being Rutuja Adik Khanolkar (for short
"Appellant") executed Agreement for Sale with Original Defendant No.
2 transferring suit flat to the name of Appellant. On the basis of this
Agreement for Sale, Appellant filed application for transfer of Share
Certificate No.18 to her name however Plaintiff No. 1 objected to the
transfer and Society refused to admit Appellant as a member.
6.3. Appellant filed Application under Section 23(2) of
Maharashtra Cooperative Societies Act, 1962 before Deputy Registrar,
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Cooperative Housing Societies with prayer to direct said Society to
admit her as member and transfer Share Certificate No. 18 to her
name. On 03.11.2011, Deputy Registrar, Cooperative Housing
Societies allowed the application and directed said Society to admit
Appellant as member. Being aggrieved, said Society filed Revision
Application before Joint Divisional Registrar Cooperative Societies
which was allowed on 08.11.2012 with directions to Deputy Registrar
to decide the matter afresh.
6.4. Plaintiffs filed Regular Civil Suit No.1495 of 2012 before the
Joint Civil Judge Junior Division, Thane seeking declaration of their
title over suit flat in said Society. Civil Judge passed Judgment dated
01.12.2015 partly decreeing the suit and declared Plaintiffs as owners
of suit flat in the said Society, directed Appellant to vacate suit flat and
hand over vacant possession to Plaintiffs. Being aggrieved, Appellant
filed Regular Civil Appeal No.26 of 2016 before the District Judge,
Thane which came to be dismissed by Judgment dated 30.08.2018.
Hence present Second Appeal.
7. The twin Judgments dated 01.12.2015 and 31.08.2018 are
appended at page Nos. 6 and 38 to the Second Appeal and form part
of the paper book. With the able assistance of Mr. Singh, learned
Advocate for Appellant (original Defendant No.1) and Mr. Pawar,
learned Advocate for Respondent (original Plaintiff No.1), I have
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perused the same and also perused the record and proceedings before
the Trial Court and First Appeal Court which are produced before me.
It is seen from the record of this Second Appeal that Mr. Singh, learned
Advocate for Appellant, did not serve copy of Second Appeal on
Respondent Nos. 2 to 3 hence Registrar Judicial - II in his order dated
29.09.2025 dismissed Appellants case against Respondent Nos. 2 and 3
for non prosecution.
8. Mr. Singh, learned Advocate for Appellant would submit that
impugned order is baseless, bad in law, passed without due
consideration of material on record and deserves to be set aside. He
would submit that Appellant is the Original Defendant No. 1 in Regular
Civil Suit No.1495 and is the owner of suit flat in said Society. He
would submit that Original Defendant No.2 had four daughters one of
whom is present Appellant and one son namely Prakash Nilkanth Brid.
He would submit that Appellant was residing at suit flat with her
mother i.e. Original Defendant No. 2 and her brother until her
marriage.
8.1. He would submit that on 12.10.1986, Late Soluchana
Tukaram Sawant executed Agreement with M/s. Mahalaxmi
Constructions and got transferred the plot of land upon which said
Society is built to her. He would submit that in or about 1989, after
construction of the building and its registration as Cooperative Housing
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Society, Late Soluchana Tukaram Sawant entered into an oral family
arrangement with Original Defendant No. 2 and allotted suit flat to
Original Defendant No. 2 and her son Prakash Brid, made Prakash a
member in the said Society which issued Share Certificate No. 18
bearing distinctive numbers 86 to 90 in his name on 15.12.1991. He
would submit that all bills including electricity bills and maintenance
bills of suit flat were issued in the name of Prakash Brid.
8.2. He would submit that Prakash expired on 10.11.1992, his
mother i.e. Original Defendant No. 2 filed requisite application for
membership in said Society which was allowed on 14.06.1996 and on
11.08.1996 Share Certificate No. 18 was transferred to her name. He
would submit that all bills including Society maintenance bills and
electricity bills now came to be issued in the name of Original
Defendant No. 2. He would submit that Original Defendant No. 2 and
Appellant i.e. her daughter were in possession of suit flat since 1989
and hence they became the owners of suit flat by way of adverse
possession.
8.3. He would submit that Original Defendant No.2 entered into
Registered Agreement for Sale dated 24.09.2009 with Appellant to
transfer her right, share, title and interest in suit flat to Appellant for
consideration of Rs.4,50,000/-. He would submit that Appellant filed
application for transfer of membership of suit flat to said Society
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however the same came to be rejected hence she filed Appeal under
Section 23(2) of the Maharashtra Cooperative Societies Act, 1960. He
would submit that during the proceedings, said Society pleaded that
they came to know of aforementioned Agreement for Sale on
09.05.2011. He would submit that Deputy Registrar allowed the
Application by Order dated 03.11.2011 however said Society filed
Revision Application challenging order dated 03.11.2011 before the
Joint Divisional Registrar Cooperative Societies which came to be
allowed on 08.11.2012 remanding the matter back to Deputy Registrar
for fresh determination.
8.4. He would submit that on 05.04.2012, during pendency of
Revision Application, Plaintiff's filed Regular Civil Suit No. 1495 of
2012 seeking declaration of title with possession of suit premises and
the suit was partly decreed declaring Plaintiff's title over suit flat and
directing Appellant to hand over vacant possession of the same. He
would submit that Appellant filed Regular Civil Appeal No. 26 of 2016
before the District Judge, Thane however the same came to be
rejected.
8.5. He would submit that all government identification
documents including Voter ID card and LPG gas connection are issued
in the name of Appellant with address of suit flat. He would submit
that Appellant has paid all Society maintenance bills however said
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Society never issued the bills or receipts in her name.
8.6. He would submit that both the Trial Court and First
Appellate Court failed to consider that Plaintiffs never produced any
documentary evidence on record to show their title of suit flat. He
would submit that Plaintiffs were never in possession and ownership of
suit flat as the same was allotted to Original Defendant No.2 by Late
Sulochana Tukaram Sawant whose son Satish Sawant was the
Promoter / Developer and as long as his mother Sulochana Tukaram
Sawant was alive, no objection was raised by her or her legal heirs i.e.
Plaintiffs. He would submit that it is Plaintiff No. 1's case that he was
in possession of suit flat since inception however if that be the case
then he was aware of transmission of the flat from Prakash Brid to
Original Defendant No. 2 prior to 09.05.2011 by the Society in 1996.
He would submit that Plaintiff No.1 attended all Society meetings and
was aware that suit flat was allotted to Original Defendant No. 2 and
her family.
8.7. He would submit that on demise of Prakash Brid, Society
allowed transfer of suit flat to Original Defendant No.2 and did not
raise any objection to add her name to Share Certificate No. 18 hence
Plaintiffs cannot raise an objection to the transfer of suit flat to
Appellant. He would submit that Appellant and Original Defendant No.
2 executed a duly registered Agreement for Sale to transfer suit flat to
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Appellant therefore there ought to be no impediment to transfer suit
flat. He would submit that it is Plaintiffs' case that Agreement for Sale
is a bogus document and invalid in law however Plaintiffs did not lead
any evidence to that effect and the Lower Courts have erroneously held
that Agreement for Sale dated 24.06.2009 is illegal.
8.8. In support of his submissions, Mr. Singh would rely on the
following decisions of the Supreme Court to contend that Plaintiffs are
not entitled to ownership of suit flat and the Courts below have
wrongly declared Plaintiffs as owners of suit flat being (1) Vasantha
(Dead) through Legal Representative vs. Rajalakshmi Alias Rajam
(Dead) through Legal Representatives2 and (2) Vaishali Abhimanyu
Joshi vs. Nanasaheb Gopal Joshi 3
9. PER CONTRA Mr. Pawar, learned Advocate for Respondent
(Original Plaintiff No.1) would submit that impugned judgments are
correct in law, passed with due consideration of material, tenable and
deserve to be upheld. He would submit that suit flat is the disputed
property in the proceedings. He would submit that Original Defendant
No.2 is sister of Late Sulochana Tukaram Sawant. He would submit
that Plaintiff No. 1 constructed a building and the same was named
and registered as Kasturi Cooperative Housing Society in which Flat
Nos. 4 and 8 i.e. suit flat remained unsold and remained in possession
2 (2024) 5 SCC 282
3 (2017) 14 SCC 373
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of Plaintiff No. 1 as he was the developer of the building. He would
submit that Flat No. 4 was subsequently sold and suit flat remained in
Plaintiffs possession till the demise of Late Sulochana Tukaram Sawant
on 26.05.2025 after which Plaintiffs, as her heirs and representatives,
came into possession of the aforementioned flat.
9.1. He would submit that Original Defendant No. 2 requested
Plaintiffs to allow her to occupy suit flat as she was a widow with 5
children and had no source of income. He would submit that Plaintiffs
were sympathetic to plight of Original Defendant No.2, they allowed
her and her son Prakash Brid to occupy suit flat on humanitarian
grounds as gratuitous licensees.
9.2. He would submit that Prakash Brid managed to obtain Share
Certificate in respect of suit flat behind the back of Plaintiffs and in
violation of law and bye laws of said Society. He would submit that
Prakash Brid expired on 10.11.1992 and Original Defendant No.2
managed to add her name on Share Certificate of Flat No. 18 without
the knowledge of Plaintiffs and in violation of law and bye laws of said
Society.
9.3. He would submit that on 09.05.2011, Plaintiffs learnt that
Appellant applied for transfer of Share Certificate of Flat No.18 to her
name on the basis of a purported Agreement for Sale dated
24.09.2009. He would submit that Plaintiffs immediately took
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objection to the transfer of suit flat on the ground that Plaintiffs never
sold, conveyed or transferred in any way suit flat to Original Defendant
No. 2. He would submit that Share Certificate is not a document that
denotes title hence mere presence of Original Defendant No.2's name
on the Share Certificate does not show her title and ownership of suit
flat. He would submit that though Share Certificate No. 18 reflects
name of Original Defendant No.2, Plaintiff No.1 was still the owner of
suit flat. He would submit that in the face of these objections, Society
refused Appellant's application for membership in said Society.
9.4. He would submit that Appellant filed Application before the
Deputy Registrar Cooperative Societies Thane seeking for membership
in said Society which was allowed by order dated 03.11.2011. He
would submit that Plaintiffs filed Objection Petition before the Deputy
Registrar on the ground that purported Agreement for Sale is a forged
and fabricated document was dismissed as Deputy Registrar possessed
no power to decide legality of the purported Agreement for Sale and
directed Plaintiffs to approach the Civil Court.
9.5. He would submit the Plaintiffs filed Revision Application
before the Joint Registrar of Cooperative Societies, Thane which was
allowed by order dated 08.11.2012. He would submit that in the view
of the above development, Plaintiffs filed Regular Civil Suit seeking
declaration of title to suit flat and prayer that purported Agreement for
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Sale was false, fabricated and not a legal document.
9.6. He would submit that Section 54 of Transfer of Property Act,
1882 bars the transfer of suit flat from Original Defendant No. 2 to
Appellant by an Agreement for Sale as such document does not confer
any proprietary rights in favour of the transferee nor creates any
interest or charge in the property. He would submit that purported
Agreement for Sale contains no averment as to how Defendant No. 2
came into possession of suit flat hence Plaintiffs are the lawful owners
of suit flat and neither Original Defendant No.2 nor her family
possesses any title in suit flat. Hence he would urge the Second Appeal
to be dismissed.
10. I have heard Mr. Singh, learned Advocate for Appellant and
Mr. Pawar, learned Advocate for Respondent No.1 and perused the
record of the case with their able assistance. Submissions made by the
learned Advocates at the bar have received due consideration of the
Court.
11. In the present case, it is seen that Original Plaintiff No.1 and
Appellant are cousin brother and sister whereas mother of Original
Plaintiff No. 1 - Late Sulochana Tukaram Sawant and mother of
Appellant i.e. Original Defendant No. 2 - Late Nirmala Brid are real
sisters. Late Sulochana Tukaram Sawant was sole proprietress of M/s
Konark Construction Company and her son i.e. Original Plaintiff No. 1
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constructed the building Kasturi Cooperative Housing Society where
suit flat is situated. It is seen that two flats remained unsold which
were Flat No. 4 and Flat No. 8 i.e. suit flat.
12. It is seen that Flat No. 4 was subsequently sold and only suit
flat remained to be sold. It is seen that in or about 1988-1989, Original
Defendant No. 2 was put in possession of of suit flat by Late Sulochana
Tukaram Sawant. It is case of Appellant that suit flat was allotted to
her brother Prakash Brid by a mutual understanding / family
agreement and his name was therefore added on Share Certificate
No.18 in respect of suit flat and it was duly transferred to him.
Thereafter upon the demise of Prakash Brid, name of Original
Defendant No.2 was added in the Share Certificate No. 18 by the
Society. It is seen that Original Defendant No.2 and Appellant executed
registered Agreement for Sale to transfer suit flat to name of Appellant
in 2019 however when said Agreement for Sale was presented to the
Society for transfer, Plaintiff No.1 raised objection and the Society
refused to add acknowledge the registered Agreement for Sale and
transfer name of Appellant on Share Certificate No.18. Thereafter
Appellant agitated rounds of litigation before the Deputy Registrar,
Cooperative Societies and Joint Registrar, Cooperative Societies who
finally dismissed Appellant's revision application and remanded the
matter back to the Deputy Registrar. In the interregnum, Plaintiff's
filed Regular Civil Suit seeking declaration of title and possession of
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suit flat where in Judgment dated 01.12.2015, Civil Court partly
decreed the suit declaring Plaintiffs title over suit flat and directed
Appellant and Original Defendant No.2 to vacate and hand over
possession of suit flat to Plaintiffs. Appellant challenged Judgment
dated 01.12.2015 before the District Judge who passed Judgment
dated 31.08.2018 dismissing the Appeal and hence present Second
Appeal is filed.
13. At the outset, controversy before me pertains to whether
lower Courts were correct to declare and uphold Plaintiff's entitlement
over suit flat without detailed discussion on preliminary issues
pertaining to jurisdiction, limitation and whether Appellant was a
gratuitous licensee in respect of suit premises. Admittedly, suit flat is
situated in building constructed by Plaintiff No.1 and suit flat was the
only unsold unit. It is also an admitted position that Original
Defendant No.2 i.e. Nirmala Brid, her son Prakash Brid and present
Appellant Rutuja Khanolkar were in possession of suit flat and while
they were in possession of suit flat, Share Certificate No. 18 came to be
issued in the name of Prakash Brid with respect to suit flat.
14. It is the case of Appellant that through an oral family
arrangement / understanding between Late Sulochana Sawant and
Late Nirmala Brid i.e. Original Defendant No.2, suit flat was allotted to
Original Defendant No. 2 and in that regard Share Certificate No. 18
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was issued in the name of Prakash Brid. It is case of Plaintiffs that suit
flat was never allotted to Original Defendant No. 2 and there is no
document placed on record nor in the said Society's record to show
sale, transfer or allocation to Original Defendant No.2 and Prakash
Brid i.e. son of Original Defendant No. 2 obtained Share Certificate No.
18 behind the back of Plaintiffs and in the absence of any document of
sale, transfer or allocation of suit flat. However It is also case of
Plaintiffs that Original Defendant No.2 along with her family was put
in possession of suit flat as a gratuitous licensee having no right, title
and interest in the suit flat.
15. I have perused both impugned judgments i.e. Judgment
dated 01.12.2015 passed by the Trial Court which is appended at
Exhibit 'C' page No. 38 and Judgment dated 31.08.2018 passed by the
First Appellate Court which is appended at Exhibit 'A' page No. 6 of
Second Appeal. It is seen that Trial Court initially framed 5 issued for
consideration and thereafter further 2 additional issues. However it is
seen that none of these 6 issues so framed pertain to the preliminary
issue of jurisdiction of the Civil Judge Junior Division to hear and
dispose of Suit filed by Plaintiffs when it was Plaintiff specific case that
Original Defendant No. 2 was inducted in the suit that as a gratuitous
licensee.
16. In the suit plaint filed by Plaintiff in paragraph No. 4
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appended at page No.62 of Appeal from Order, it is Plaintiffs
contention that as financial condition of Original Defendant No.2 was
precarious and as she was a widow with children having so source of
income, she requested Plaintiff No.1 to allow her to occupy suit flat on
and Plaintiff No.1 acceded to this request and inducted her and her
family as gratuitous licensee in the suit that on humanitarian grounds.
This is an important point for consideration and mention made
however neither of the Courts below framed any issue regarding status
of Appellant and Original Defendant No.2 since it is a clear disputed
question of fact. It is seen that since Plaintiffs' pleaded that Original
Defendant No.2 and Appellant are gratuitous licensees, it was trite for
the Trail Court to examine such pleading to prima facie determine if
Original Defendant No.2 and Appellant were in fact gratuitous
licensees and if so then would the jurisdiction lie before the Civil
Court. It is seen that both the Trial Court and First Appellate Court
overlooked the issue of gratuitous licensee and therefore subject matter
of jurisdiction of the Suit before deciding the same. In this regard,
attention is invited to the decision of the Supreme Court in the case of
Prabhudas Damodar Kotecha and another vs. Smt. Manharbala Jeram
Damodar and Ors (Supra) which states that eviction suits between
licensor and licensee are to be exclusively tried by the Small Causes
Court. In this regard paragragh Nos. 54, 57, 58 and 59 are reproduced
herein below for immediate reference:-
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"54. We have already indicated the expression "licence" as
reflected in the definition of "licensee" under sub-section (4-A)
of Section 5 of the Rent Act and Section 52 of the Easements
Act are not pari materia. Under sub-section (4-A) of Section 5,
there cannot be a licence unsupported by the material
consideration whereas under Section 52 of the Easements Act
payment of licence fee is not an essential requirement for
subsistence of licence. We may indicate that the legislature in
its wisdom has not defined the word "licensee" in the PSCC Act.
The purpose is evidently to make it more wide so as to cover
gratuitous licensee as well with an object to avoid multiplicity
of proceedings in different courts causing unnecessary delay,
waste of money and time, etc. The object is to see that all suits
and proceedings between a landlord and a tenant or a licensor
and a licensee for recovery of possession of premises or for
recovery of rent or licence fee irrespective of the value of the
subject-matter should go to and be disposed of by a Small
Cause Court. The object behind bringing the licensor and the
licensee within the purview of Section 41(1) by the 1976
Amendment was to curb any mischief of unscrupulous elements
using dilatory tactics in prolonging the cases for recovery of
possession instituted by the landlord/licensor and to defeat
their right of approaching the court for quick relief and to avoid
multiplicity of litigation with an issue of jurisdiction thereby
lingering the disputes for years and years.
55.xxxxxx
56.xxxxxx
57. We are of the considered view that the High Court has
correctly noticed that the clubbing of the expression "licensor
and licensee" with "landlord and tenant" in Section 41(1) of the
PSCC Act and clubbing of causes relating to recovery of licence
fee is only with a view to bring all suits between the "landlord
and tenant" and the "licensor and licensee" under one umbrella
to avoid unnecessary delay, expenses and hardship. The act of
the legislature was to bring all suits between "landlord and
tenant" and "licensor and licensee" whether under the Rent Act
or under the PSCC Act under one roof. We find it difficult to
accept the proposition that the legislature after having
conferred exclusive jurisdiction in one court in all the suits
between licensee and licensor should have carved out any
exception to keep gratuitous licensee alone outside its
jurisdiction. The various amendments made to the Rent Act as
well as the Objects and Reasons of Maharashtra Act 19 of 1976
would clearly indicate that the intention of the legislature was
to avoid unnecessary delay, expense and hardship to the suitor
or else they have to move from one court to the other not only
on the question of jurisdiction but also getting reliefs.
58. We are of the view that in such a situation the court also
should give a liberal construction and attempt should be to
achieve the purpose and object of the legislature and not to
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frustrate it. In such circumstances, we are of the considered
opinion that the expression "licensee" employed in Section 41 is
used in general sense of the term as defined in Section 52 of
the Easements Act.
59. We have elaborately discussed the various legal principles
and indicated that the expression "licensee" in Section 41(1) of
the PSCC Act would take a gratuitous licensee as well. The
reason for such an interpretation has been elaborately discussed
in the earlier part of the judgment. Looking from all angles in
our view the expression "licensee" used in the PSCC Act does
not derive its meaning from the expression "licensee" as used in
sub-section (4-A) of Section 5 of the Rent Act and that the
expression "licensee" used in Section 41(1) is a term of wider
import intended to bring in a gratuitous licensee as well."
17. The words of the Supreme Court need reiteration in the
present case to show that suits between licensor and licensee including
gratuitous licensees are to be tried and decided by Small Causes Court.
It is seen that it is Plaintiffs' specific case that Original Defendant No.2
and Appellant were allowed to occupy the suit flat as gratuitous
licensees. In light of this admission, jurisdiction of Civil Judge Junior
Division to hear and dispose of this Suit is immediately called into
question and he ought to have framed preliminary issue of subject
matter jurisdiction of the Suit tried before him to conclude whether he
was possessed with the jurisdiction to hear and decree the Suit. It it
seen that First Appeal Court i.e. District Judge also did not discuss the
subject matter of jurisdiction of Civil Judge Junior Division to hear and
dispose of the Suit on this assertion of Plaintiffs. The Civil Judge Junior
Division and First Appellate Court ought to have perused the
averments in the suit plaint to determine if the Suit ought to be have
been heard or dismissed on the ground of jurisdiction.
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18. While there is no doubt, Supreme Court passed its Judgment
in Prabhudas Damodar Kotecha (Supra) on 13.08.2013, which is post
the filing of Suit, Civil Judge decreed the Suit in 2015 hence the Civil
Judge ought to have considered the aforementioned Judgement,
considered its ratio decidendi and accordingly framed issue of
jurisdiction. That apart, First Appellate Court i.e. District Judge ought
to have suo moto applied the principles of Prabhudas Damodar
Kotecha (Supra) to the facts of the impugned Appeal to determine if
Suit ought to be remanded back to Civil Judge for determination of the
subject matter jurisdiction.
19. It is seen that in Suit plaint, though it is Plaintiffs' case that
Appellant and Original Defendant were gratuitous licensees, the Suit
was filed for declaration of title over the suit flat. Original Defendant
No. 2 and Appellant resisted this case and contended that suit flat was
allotted to Prakash Brid in 1988-89. It is seen that Original Defendant
No.2 along with her son Late Prakash Brid and her daughter i.e.
Appellant were in possession and occupying the suit flat since 1988-89.
It is seen that there is no averment in the suit plaint as to whether
Plaintiffs approached the Small Causes Court for relief against the
gratuitous licensees. Hence this discourse ought to have resolved and
determined by the Lower Courts by framing additional issue on
gratuitous licensee status of Original Defendant No. 2 and Appellant
and in that regard whether Civil Judge could be seized of jurisdiction
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to determine the Suit or not .
20. Plaintiff No.1 stepped into the witness box and he deposed
that he was aware that Original Defendant No. 2 and Appellant were
in possession and occupation of suit flat. Plaintiff No.1 categorically
admitted in evidence that he used to visit Prakash Brid in the suit flat
to meet him and that Society maintenance bills and electricity bills of
suit flat were issued in the name of Prakash Brid and that he did not
make any attempt to object to issuance of Share Certificate to Prakash
Brid.
21. It is seen that Plaintiff Witness No.2 Mr. Shrirang Jagannath
Kamble deposed that he was the Secretary of Society and during his
tenure Share Certificate was issued to Prakash Brid on the say of
Chairman of said Society and it bears the signature of Chairman as
well as Secretary of said Society. He would depose that mother of
Prakash Brid i.e. Original Defendant No.2 was made a member of the
said society after his desire however he did not remember when she
became member of said Society.
22. It is seen that Appellant stepped into the witness box and
deposed to the facts of her case. She has stated that she was residing in
the suit flat before and even after her marriage to take care of her
ailing mother i.e. Original Defendant No.2. She would state her mother
and Prakash Brid were paying the maintenance charges and electricity
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bill of the suit flat since 1988-89. It is seen that Original Defendant
No. 2 also stepped into the witness box and adopted the case of
Appellant. She deposed that suit flat came to be allotted to Prakash
Brid through a family arrangement between her sister and their
children in 1988-89 hence there was no written agreement to that
effect.
23. It is seen that the deposition made by the Plaintiff's witnesses
are important for consideration. It is seen from Plaintiff No. 1's one
deposition that he was aware that Prakash Brid was residing in the suit
flat and he even used to visit him and that he never challenged or
objected to Share Certificate being issued to Prakash Brid shows that
Plaintiff's suit is a complete afterthought. It is seen that genesis of the
controversy stems from Original Defendant No.2 and her family's
possession of suit flat since 188-89 and since it is case of Plaintiff No. 1
that he was aware of such possession and issuance of Share Certificate
on Prakash Brid's name yet he chose not to challenge such possession
and entitlement since that time, he cannot be allowed to challenge the
same subsequently. It is seen that Original Defendant No.2 and her
family were in possession of the suit flat since 1988 and Share
Certificate came to be issued to Prakash Brid in 15.12.1991, despite
this Plaintiffs failed to challenge or object to occupation of Original
Defendant No.2 and only took steps to evict / eject Appellant in 2012
after almost 23 long years. It is seen that even after demise of Prakash
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Brid, Original Defendant No.2 came to be admitted as a member of the
said Society yet Plaintiffs did not object however only after demise of
their mother Sulochana Tukaram Sawant did Plaintiffs object to the
transfer of suit flat to Appellant. It is seen that Plaintiffs led evidence to
show that suit flat was never sold and hence remained in their
possession only however Plaintiff No.1 has categorically deposed that
he was aware that Prakash Brid was in possession of the suit flat and
Share Certificate was issued in his name yet he took no steps to evict /
eject Prakash Brid from suit flat and thus he clearly acquiesced to his
possession, slept over his right and now he cannot be allowed to
agitate his Suit for declaration of title and possession of suit flat.
24. Admittedly, there is no document produced on record to
show the family arrangement / understanding between Late Sulochana
Tukaram Sawant and Original Defendant No.2 but however it is also
an admitted fact that Share Certificate was issued to Prakash Brid to
which no objection was ever raised by Plaintiffs. It is seen that such
chain of events would show that issuance of Share Certificate in the
name of Prakash Brid would prima facie serve as proof and testament
to the existence of a family agreement / understanding between
Original Defendant No.2 and Late Sulochana Tukaram Sawant. The
deposition of Plaintiff No.1 would prima facie show that he never took
steps to eject / evict Prakash Brid and his family who were in
possession of suit flat as he was aware of family agreement /
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understanding and he took such steps on the demise of his mother Late
Sulochana Tukaram Sawant albeit past limitation. Plaintiffs ought to
have objected to issuance of Share Certificate No.18 to Prakash Brid at
the time of issuance and not at such a belated stage. Further after
demise of Prakash in 1992, the share certificate of the flat was
transferred by the Society by following the due process of law to the
name of Defendant No. 2 (his mother) and this was also never
objected to by the Plaintiffs.
25. There is no challenge maintained whatsoever to the
possession of Original Defendant No. 2 nor Late Prakash Brid by
Plaintiffs until filing of the declaratory Suit in the year 2012 for the
first time. In order to overcome limitation the stance taken by Plaintiffs
is that they came to know of the transmission of suit flat in 2011 i.e.
prior to one year of filing of the Suit which is not sustainable in the
aforementioned facts and the evidence given by the Plaintiff No. 1
himself.
26. In that view of the matter, judgments passed by both the
Courts below clearly suffer from the aforesaid legal infirmity and
therefore I answer the first two law points for determination in the
affirmative and the third law point in the negative. Hence both the
judgments dated 01.12.2015 and 31.08.2018 passed by the learned
Trial Court and the learned first Appellate Court in First Appeal are
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quashed and set aside. Suit filed by Plaintiff namely Regular Civil Suit
No.1495 of 2012 is dismissed as a consequence thereof.
27. All parties to act on a server copy of this Judgment
downloaded from the website of the High Court.
28. Second Appeal is allowed and disposed in the above terms.
In view of disposal of Second Appeal, pending Civil Application is
accordingly disposed of.
[ MILIND N. JADHAV, J. ]
Ajay
RAVINDRA MOHAN
MOHAN Date:
AMBERKAR 2025.12.12
11:01:20
+0530
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