High Court
Legal Reasoning
(1) sa-457-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.457 OF 2023WITHCIVIL APPLICATION NO.11128 OF 2023INSECOND APPEAL NO.457 OF 2023Babulal Shankarlal Rana (Deceased)Through legal heirs1.Smt. Vijayabai Babulal Hirwane(Rana) Died2.Amol Babulal Hirawane (Rana)Age: 48 years, Occu: Business,3.Sachin babulal Hirwane (Rana)Age: 53 years, Occu: Business, Both R/o. 260, Shivajinagar, Jalgaon4. Sandeep Babulal Hirawane (Rana)Age: 62 years, Occu: Nil, R/o. 1115, Pandurang Apartment, Plot no. 19, Dhankawadi, In front of MarotiMandir, Pune.5.Sau. Madhuri Bipin Filoliya,Age: 55 years, occu: Household, R/o. Flat no. 19, Avadhut Apartment Near Pawar Hospital, Plot no. 50, Balaji Nagar. Pune 43.Appellants(Orig. Defendants)VersusShri. Pratap Shankarlal Rana (Dalwale)Age: 83 years, Occ: Business,R/o. 70, Polanpeth, Jalgaon,Tq. & Dist. Jalgaon..(Respondent)….Mr. G. V. Wani, Advocate for Appellants.Mr. Mukul Kulkarni, Advocate for Respondent.… (2) sa-457-2023.odt CORAM : S. G. CHAPALGAONKAR, J. DATED : 07th JANUARY, 2025.ORDER:- 1.The appellants/legal representatives of original defendantimpugns judgment and decree dated 15.04.2023 passed by DistrictJudge, Jalgaon in Regular Civil Appeal No.146/2014, therebyupholding judgment and decree dated 05.05.2014 passed by 3rdJoint Civil Judge Junior Division, Jalgaon in Regular Civil SuitNo.576/2002. (Hereinafter, parties are referred to by their originalstatus for the sake of convenience and brevity).2.The respondent/plaintiff instituted suit for recovery ofpossession of suit shop admeasuring 5 x 4 sq. ft. situated at PolanPeth, Jalgaon. The plaintiff contends that he is owner of suit shop.The defendant is his brother. He put defendant/unemployedbrother in possession of shop for the purpose of running pan shopon condition that he would vacate the same on the demand. Due torelationship between the parties, transaction was withoutconsideration. The defendant instituted Regular Civil SuitNo.363/1994 seeking perpetual injunction against plaintiff. Thesuit was decreed vide judgment and order dated 05.03.1997 andplaintiff was restrained from disturbing possession of defendantwithout following due process of law. Thereafter, plaintiff issuedlegal notice through registered post on 01.10.2002 askingdefendant to hand over possession, but defendant falsely replied (3) sa-457-2023.odtand refused to hand over the same. Hence, cause of action arose tofile suit.3.The defendant refuted the plaintiff’s claim by filing writtenstatement Exhibit-13 and claimed himself to be the owner of suitshop. He contends that in the month of December 1980, he tookpossession of platform on rental basis @ Rs.100/- per month andraised construction of suit shop at his own cost. Till December1993, he paid rent, but plaintiff and other brothers obstructed hispossession. Hence, he filed suit for injunction, which has beendecreed. Pertinently, defendant amended written statement andclaimed ownership by way of adverse possession and also employedcounter claim for declaration of ownership.4.The Trial Court framed issues, recorded evidence of theparties and finally decreed the suit asking defendant to hand overpossession of suit property to plaintiff with further direction forenquiry as to mesne profit. The counter claim of defendant hasbeen rejected. Aggrieved defendant filed Regular Civil AppealNo.146/2014 assailing decree of possession passed in the suit.During the course of argument before the Appellate Court, plea ofadverse possession was also waived and pressed into service onlyplea of possession based on license. However, could not find favourfrom the Appellate Court and suffered dismissal of Appeal. Hence,this Second Appeal. (4) sa-457-2023.odt5.Mr. Wani, learned Advocate appearing for the appellantssubmits that Courts below have erroneously discarded the case ofdefendant as regards to his possession based on license. No issueabout tenancy/license was framed by Trial Court nor has Appellatecourt given consideration to the same. He would submit thatCourts below have erroneously applied principle of res-judicatabased on findings in previous suit, when such plea was never partof pleadings and evidence before the Court. He would, therefore,urge to frame substantial questions of law on aforesaid aspects andadmit the Appeal.6.Per contra, Mr. Kulkarni, learned Advocate appearing for therespondent/plaintiff submits that plaintiff had instituted previoussuit for injunction with plea that he occupied suit property on thebasis of license. The specific issue was framed in Regular CivilSuit No.363/1994 as to whether plaintiff proved that he is inpossession of suit shop as licensee. The Court recorded affirmativefinding only as to the possession of the plaintiff, but declined toaccept the plea of license. Therefore, plaintiff is estopped fromraising same plea in present suit. The Courts have rightly appliedbar under Section 11 of the Code of Civil Procedure. Consequently,decreed the suit. He would further point out that plaintiff raisedplea of ownership and also sought declaration based on adversepossession. The inconsistent pleas cannot be permitted in the facts (5) sa-457-2023.odtof the case. He would, therefore, justify concurrent decrees passedby the Courts below.7.Having considered submissions advanced, undisputedlydefendant, who is real brother of plaintiff was put into possessionof suit premises/shop sometimes in the year 1980. The plaintiffclaims that since defendant was unemployed, he permitted him torun pan shop in the suit premises out of love and affection. Thedefendant enjoyed property without any rent or license fees.However, later on refused to hand over possession and institutedsuit seeking decree of injunction. It can be observed that defendantpleaded that he enjoyed possession on the basis of oral lease licenseand paid rent of Rs.100/- per month till 1993. In that suit therewas specific issue as to the nature of possession of defendant. TheCourt accepted defendant’s possession over the suit property, butrefused his plea of licensee.8.The decree passed in Regular Civil Suit No.363/1994 dated05.03.1997 has attained finality.9.It is apposite to refer issue no.1 framed in Regular Civil SuitNo.363/1994 alongwith findings thereon, which reads thus:ISSUESFINDINGS1)Does the plaintff prove that he is in possessionof Pan shop as a licencee of defendant No.1 Affirmative to the extet of possession. (6) sa-457-2023.odt10.Apparently, plaintiff’s claim as regards to the possessionbased on license has been considered and decided against him. Thefindings has attained finality. In that view of the matter, plaintiffcannot be permitted to re-agitate the same claim while defendingpresent suit. Pertinently, defendant has amended his originalwritten statement and raised plea of ownership by way of adversepossession that has been dismissed. There is absolutely nomaterial to indicate that defendant has ever paid license fees toplaintiff at any point of time. The Appellate Court has rightlyobserved that at the most this can be considered as case ofgratuitous license. Assuming that this is case of gratuitous license,it can be terminated without notice and defendant cannot assertany more right to continue in possession. Eventually, findingsrecorded by the Courts below entitling plaintiff to recoverpossession based on admitted ownership of suit property cannot befaulted.11.Although Mr. Wani, learned Advocate seeks to contend thatplea of defendant as regards to license has not been dealt with byCourts below by framing appropriate issue or points forconsideration, the gamut of factual aspects, coupled with thefindings recorded in the previous suit concerning the defendant'sclaim regarding the license, renders the contention untenable.Apparently, the defendant has enjoyed possession of the suit
Decision
(7) sa-457-2023.odtproperty owned by the plaintiff for more than 44 years, absolutelyfree of cost, while delaying the plaintiff’s right to recover possessionby taking multiple contradictory pleas, which cannot be justified.In the result, no substantial question of law arises forconsideration in this Second Appeal.12.Consequently, Second Appeal stands dismissed.13.In view of dismissal of Second Appeal, Civil Application doesnot survive and accordingly stands disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/January-2025