High Court

Legal Reasoning

44 SA 346 OF 2015.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD44 SECOND APPEAL NO. 346 OF 2015WITHCIVIL APPLICATION NO. 8387 OF 2015 IN SA/346/2015MANGAL HIRACHAND KALE AND ANOTHERVERSUSVISHNU MARUTI KALE...Advocate for Appellant : Mr. Jain Vishwajit R. (Kamboj). Advocate for Respondent : Mr. V.D. Gunale ...CORAM: SHAILESH P. BRAHME, J.DATE: 23.09.2025PER COURT : Heard learned counsel for the appellants. 2.Second Appeal is emanating from concurrent findings of factsrecorded by the Courts below in granting decree of declaration andpossession in respect of plot No. 17 Survey No. 35 situated at Kasarshirsi Tq.Nilanga, Dist. Latur. The appellants are the original defendants.3.Respondent had filed Regular Civil Suit No. 324/2011 for declarationand injunction contending that he was allotted suit plot vide Kabalaexecuted on 28.06.1972 (Exh. 30). He is given in possession of the plot.His possession is obstructed by the appellants. It is contended that theappellants fraudulently mutated their names. A partition deed was gotprepared by obtaining signatures of the respondent on a blank paper. It isfurther alleged that on 09.05.2011 he was dispossessed.4.The appellants appeared before the Trial Court but did not file awritten statement. Hence the suit proceeded without written statement.The respondent adduced his oral evidence as well as examined one more1/5 44 SA 346 OF 2015.odtwitness Jindasab Abdulsab. After considering the material on record the suitwas decreed vide judgment dated 19.01.2013.5.Being aggrieved, appellants preferred Regular Civil Appeal No.42/2013. It was dismissed vide judgment dated 16.10.2014. Against thatpresent second appeal has been preferred.6.The learned counsel for the appellants submits that no opportunitywas given to the appellants to adduce evidence and both judgments areagainst principles of natural justice. It is submitted that the lawyerrepresenting them were handed over relevant papers, who did not filewritten statement and did not apprise the appellants regarding status of thematter. For mistake attributable to the lawyer, the appellants may not bepunished. It is vehemently submitted that the judgment and decree passedby the Trial Court is inconsistent in respect of relief of possession. It isfurther submitted that there are voluminous material with the appellants inthe form of partition dated 24.04.2000, memorandum of understandingdated 28.05.2008, agreement dated 08.04.2011 to indicate that in apartition the suit plot was allotted to Dhondiram-appellant no. 2 andappellant no. 1 was permitted to occupy the same. It is submitted that dueto the partition in the family, the respondent was having no right, title andinterest in the suit plot. He was never in possession of the same. Thelearned counsel for the appellants vehemently submits that presently alsothe appellants are in possession of the suit plot and an opportunity needs tobe extended by remanding the matter to the Trial Court, to be decidedwithin stipulated period.7.The learned counsel for the respondent Mr. Gunale supports both thejudgments and decrees. It is contended that the appellants did not resort tothe statutory remedies for getting the order of no written statement setaside. The appellants are estopped from contending that opportunity wasnot extended to them. Both the courts below have considered the material2/5 44 SA 346 OF 2015.odtplaced on record and thereafter passed the impugned judgments, thoughthere was no contest in the courts below. 8.I have considered the rival submissions of the parties. Admittedly,appellants were served with summons but did not file written statement.The respondent adduced oral evidence of two witnesses, produced Kabala(Exh. 30), and other documents of record of right, on the basis of which, theTrial Court pronounced the judgment in his favour granting relief ofdeclaration and injunction. It is not a case that in the absence of the writtenstatement, the Trial Court proceeded with the matter accepting therespondent's case as a gospel truth. I find that the Trial Court has adoptedproper course in view of law laid down by the Supreme Court in the matterof Gujarat Maritime Board Vs. G.C. Pandya;(2015)12 SCC 403.9.It is relevant to notice that after passing of order of no writtenstatement by the Trial Court, the appellants were having statutory remedy toget the order set aside by filing appropriate application before the TrialCourt. No recourse is taken to the statutory remedy. Even the order of ‘nowritten statement’ was not assailed by incorporating ground of objection inthe lower Appellate Court. Under these circumstances, merely harping on apoint that opportunity was not given and appellant no. 2 is lady and feeblewould not be any help.10.The learned counsel for the appellants strenuously referred to thepartition deed dated 24.04.2000, memorandum of understanding dated28.05.2008, agreement dated 08.04.2011 and the revenue record to buttressa point that there was partition and the suit plot was allotted to appellantNo. 1. However, these documents are coming before the Court first the timein the second appeal. Neither any written statement was filed nor anyevidence was led in the trial Court. Under these circumstances, it is notpermissible for this Court to consider the factual aspect of the matter by wayof defence taken by the appellants. I do not find any merit in the3/5 44 SA 346 OF 2015.odtsubmissions that the judgments passed by the Courts below are againstprinciples of natural justice .11. It is vehemently contended that the State Government is thenecessary party. The suit was filed for declaration and possession. It’s acase of the respondent that Kabala was executed at Exh. 30 on 28.06.1972and he was handed over possession. It cannot be said that the respondent isthe owner of the suit plot. The reference in the Trial Court's judgmentregarding ownership of the respondent is misconceived or misnomer. Thepurport for filing the suit is to protect the possession. Therefore, there areno averments that the respondent has setup any title against State. As norelief is solicited against the State, I am of the considered view that the StateGovernment is not necessary party and the suit is maintainable. 12.The learned counsel adverted my attention to the inconsistentfindings recorded by the Trial Court. In paragraph no. 8 it is recorded thatrespondent proved his possession and as against that a decree of handingover of possession has been passed. The purport of the findings recorded bythe Trial Court is that entitlement of the possession has been proved on thebasis of Kabala. The consistent case of the respondent-plaintiff is that hewas given possession on the basis of Kabala and thereafter he wasdispossessed on 09.05.2011. Therefore, a stray observation in paragraphNo. 8 of the judgment passed by the Trial Court would not change thecomplexion of the matter. 13.The learned counsel for the appellants has vehemently canvassed thata great prejudice is caused because the appellants are still in possession andtheir possession is protected by this Court. The appellant no. 1 is stated to bea lady and she is in possession of the property. Both the Courts below haverecorded findings that the respondent is entitled to possession on the basisof Kabala (Exh. 30). No case was put up by the appellants showing theirentitlement. The possession can be said to be unauthorized one.4/5 44 SA 346 OF 2015.odt14.The findings recorded by both Courts below cannot be faulted. I donot find any substantial question of law involved in the present appeal. Ihave no alternative than to dismiss the second appeal. The Second Appeal isdismissed. Pending Civil Application is disposed of.15.The learned counsel for the appellants, after pronouncement of thejudgment prays for extension of interim relief. 16.Learned counsel Mr. Gunale opposes the same contending that there isno interim relief as such in operation.17.The order dated 23.06.2016 passed by the coordinate bench is not inthe nature of granting interim protection to the possession. No stay as suchhas been granted to the execution of decree. The appellant has depositedRs. 10,000/- in pursuance of order dated 23.06.2016 and showed his bonafides. Rightly or wrongly, the decree has not been executed yet. If thepossession is protected because of some orders passed by this Court onprevious occasion, I find it fit to grant protection to the possession forfurther four weeks in order to avail further remedies to the appellants. Theexecution of the decree in question shall not be proceeded with for furtherfour weeks. After expiration of the said period, the protection granted todayshall stand vacated without reference to the Court. ( SHAILESH P. BRAHME, J.) mkd/-5/5