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2011 DIGILAW 32 (BOM)

Datta s/o Dau Shrawale v. Namdeo Jalbaji Diwekar

2011-01-10

R.M.SAVANT

body2011
JUDGMENT The above Second Appeal arises out of the judgment and decree dated 04.10.1994 passed by the Additional District Judge, Pusad in Regular Civil Appeal No. 59/1990 by which, the decree dated 22.02.1988 passed by the Joint Civil Judge, Junior Division, Pusad in Regular Civil Suit No.159/1978, has been confirmed. The above Second Appeal raises the substantial questions of law as mentioned in ground Nos. 5, 11 and 12 of the memo of Appeal. The same read thus : “5. Whether a suit by a co-owner for possession is maintainable without impleading the other co-owners ? If no, whether in the facts and circumstances of the case the suit of the respondent for possession competent and maintainable at the instance of the respondent alone ? 11. Whether it is open for the Court to read in evidence documents not pleaded in the plaint ? If no, whether the Courts below were right in relying upon the alleged gift deed dated 16.01.1930 at Exh.23 ? In absence of necessary pleadings in the plaint to determine the title of the plaintiff ? 12. Whether Section 90 of the Indian Evidence Act, 1872 vests discretion with the Court to apply the presumption of proper attestation and execution to a document 30 years old ? If yes, whether in the facts and circumstances of the case the Courts below have properly exercised its discretion of raising the presumption available under Section 90 of the Indian Evidence Act to the alleged gift-deed dated 16.1.30 ?” In so far as the ground no.5 is concerned, Shri D.C. Daga, the learned Counsel appearing for appellants fairly conceded that in view of the legal position, and in view of the authoritative pronouncements of this Court he would not be pressing the said ground, therefore, the questions of law in ground nos. 11 and 12 only survive for consideration in the above Second Appeal. The background facts in nut shell are as under. 2. The respondent herein is the original plaintiff. 11 and 12 only survive for consideration in the above Second Appeal. The background facts in nut shell are as under. 2. The respondent herein is the original plaintiff. The suit site is an open site bearing Municipal property No.37, admeasuring 60 feet in length from South to North; 30 feet in width from East to West, bounded towards East by open site of Punjabai; towards West by the road and house of Chandrakant; towards South by West side land of Sawitribai and to the North, houses of Sakharam, Hiraman and Ukanada, whereupon there is a Samadhi and a platform admeasuring 16 x 10 feet on the North-West corner, which is owned by the plaintiff. It is the case of the plaintiff that the said suit site is an ancestral property. His name is shown in the Municipal assessment list, as its owner. It is further the case of the plaintiff that he is regularly paying the taxes to the Municipal Council. The plaintiff was a member of Armed Forces, but was discharged from the Armed Forces since he lost his eye sight on the Front. It is his case, that the defendants took undue advantage of his absence, blindness and helplessness, and encroached upon the suit site on 27.10.1977 and constructed a hut and a cattle shed on it. It is further the case of the plaintiff that the defendants gradually encroached upon the remaining portion/site finally on 13.03.1978 and dispossessed the plaintiff. The plaintiff. therefore, filed the suit being Regular Civil Suit No. 159/1978 for possession against the defendants. 3. It is the case of the defendants that the suit site is their ancestral property and their father was in exclusive possession of it till 1977, and after the death of their father, they have inherited it. They denied that they have encroached upon the suit site and dispossessed the plaintiff. According to the defendants, the site wherein the Samadhi is situated, as also the tomb, is owned by them and its owner was their great grand father Shri Dau. The defendants contended that the suit was bad for non-joinder of necessary parties, as the plaintiff had not joined one Bhagirathibai, who was daughter of Dau and who is their sister. The defendants, therefore, prayed for dismissal of the suit. 4. The Trial Court on the basis of the pleadings framed relevant issues. The defendants contended that the suit was bad for non-joinder of necessary parties, as the plaintiff had not joined one Bhagirathibai, who was daughter of Dau and who is their sister. The defendants, therefore, prayed for dismissal of the suit. 4. The Trial Court on the basis of the pleadings framed relevant issues. The Trial Court initially by its judgment and order dated 17.02.1982, decreed the suit and granted the relief sought by the plaintiff. The defendants aggrieved by the said decree passed against them, carried the matter in Appeal being Regular Civil Appeal No. 66/1983. The Appellate Court by its judgment and order dated 09.02.1984 set aside the decree on the ground that the description of the property was not proper, and therefore, remanded the matter back to the Trial Court and allowed the parties to amend their respective pleadings. The parties accordingly carried out the amendment and led evidence in support of their respective cases. The Trial Court again by its judgment and order dated 22.02.1988 decreed the suit. In so far as the ownership of the plaintiff is concerned, the Trial Court on the basis of the evidence on record and especially the Gift-deed dated 16.01.1930 Exh.23, by which the grand mother of the plaintiff had gifted the property to the plaintiff's mother along with other properties at Umarkhed, as also the Municipal assessment list (Exhs.24 and 72), held that the plaintiff was the owner of the property, and therefore, decreed the suit and ordered enquiry for mesne profits under Order XX Rule 12 of the Civil Procedure Code. 5. Being aggrieved by the decree dated 22.02.1988, the defendants filed Regular Civil Appeal No. 59/1990. The said Appeal came to be dismissed and the findings of the Trial Court in so far as the Gift-deed is concerned, were confirmed. The Lower Appellate Court has in terms held that the trial Court was right in holding that the property was of the ownership of plaintiff on the basis of the Gift-deed (Exh.23) and extract of Municipal assessment record. In so far as the case of the defendants was concerned, both the Courts below have held that except bare testimony of the original defendant no.3, the defendants have not produced any document, except some assessment list, which was also not pertaining to the suit plot to assert their title as well as possession over the suit plot. In so far as the case of the defendants was concerned, both the Courts below have held that except bare testimony of the original defendant no.3, the defendants have not produced any document, except some assessment list, which was also not pertaining to the suit plot to assert their title as well as possession over the suit plot. Both the Courts therefore, have concurrently recorded a finding of fact as regards the factum of plaintiff having proved his title to the suit property. 6. Before going to the submissions of the respective Counsel, it would be relevant to note that in so far as the Gift-deed is concerned, which is dated 16.01.1930 (Exh.23), the Trial Court at the time of passing of the first decree dated 17.02.1982 had recorded a finding while deciding issue no.1 in paragraph no.4 of its order to the following effect. “..... In the cross-examination of the plaintiff it is found true that there is no mention of the gift in the plaint, but then it must not be forgotten that the gift-deed is older than 50 years and equally old is the plaintiff and therefore it is possible that this fact was not revealed by the plaintiff to his young Advocate. Still then, later on, before the evidence as a reply to the application filed by the defendant, the plaintiff has stated in Exh.10 that the suit property was gifted by his grandmother to his mother.” 7. It is required to be noted that after such a finding was recorded, the matter was carried to the Appeal Court by the defendants by filing Regular Civil Appeal No. 66/1983 and the Lower Appellate Court had remanded the matter back to the Trial Court on the ground that the description of the property was not proper and clear, the Lower Appellate Court while remanding the matter had permitted the parties to amend their pleadings. It is significant to note that though such opportunity was granted, the defendants herein had not amended their written statement, though being aware of the finding recorded by the Trial Court at the time of passing of the first decree on 17.02.1982. In so far as the defendants are concerned, in the written statement they have merely stated that they have no knowledge of the said Gift-deed dated 16.01.1930 Exh.23. 8. In so far as the defendants are concerned, in the written statement they have merely stated that they have no knowledge of the said Gift-deed dated 16.01.1930 Exh.23. 8. I have heard Shri D.C. Daga, the learned Counsel for appellants/original defendants and Shri B.N. Mohta, the learned Counsel for Respondent/original plaintiff. It is the contention of Shri Daga, the learned Counsel appearing on behalf of the appellants, that both the Courts below have erred in decreeing the suit on the basis of the Gift-deed dated 16.01.1930 when there were no pleadings referring to the said Gift-deed in the plaint. The learned Counsel submitted that in absence of the pleadings, the plaintiff could not have led evidence, on the basis of said Gift-deed. The learned Counsel in support of his submissions sought to rely upon the judgment of Hon'ble Apex Court reported in AIR 1987 SC 2179 (Vinod Kumar Arora .vrs. Smt. Surjit Kaur). Paragraph no.11 of the said judgment is material and is reproduced herein. “11. However, when the appellant entered the witness box, he gave up the case set out in the written statement and propounded a different case that the hall had been taken on lease only for nonresidential purposes. The perceptible manner in which the appellant had shifted his defence has escaped the notice and consideration of the Statutory Authorities. Both the Authorities have failed to bear in mind that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Another failing noticed in the judgments of the Rent Controller and the Appellate Authority is that they have been oblivious to the fact that the respondent had leased out the hall to the appellant only for a period of 11 months. Another failing noticed in the judgments of the Rent Controller and the Appellate Authority is that they have been oblivious to the fact that the respondent had leased out the hall to the appellant only for a period of 11 months. Such being the case, even if the respondent had come to know soon after the lease was created and the appellant was using the hall to run a clinic, she may have thought it prudent to let the appellant have his way so that she can recover possession of the hall after 11 months without hitch whereas if she began quarreling with the appellant for his running a clinic, she would have to be locked up in litigation with him for a considerable length of time and can obtain possession of the hall only after succeeding in the litigation. Yet another factor which vitiates the findings of the Rent Controller and the Appellate Authority is that both of them have overlooked Sec. 11 of the Act, and the sustainability of any lease transaction entered in contravention of Section 11. The legislature, with a view to ensure adequate housing accommodation for the people, has interdicted by means of Section 11 the conversion of residential buildings into non-residential ones without the written consent of the Rent Controller. Admittedly, in this case the parties had not obtained the consent in writing of the Rent Controller for converting the hall in a residential building into a clinic. Such being the case, the appellant cannot get over the embargo placed by Section 11 by pleading that the respondent was well aware of his running a clinic in the hall and that she had not raised objection at any time to the running of the clinic. Learned Counsel for the appellant referred us to the decision in Dr. Gopal Dass Verma v. Dr. S.K. Bharadwaj (1962) 2 SCR 678 : ( AIR 1963 SC 337 ) and argued that the ratio laid down therein would be fully attracted to the facts of this case. Learned Counsel for the appellant referred us to the decision in Dr. Gopal Dass Verma v. Dr. S.K. Bharadwaj (1962) 2 SCR 678 : ( AIR 1963 SC 337 ) and argued that the ratio laid down therein would be fully attracted to the facts of this case. It is true that in the said decision, it was held that when a leased premises was used by the lessee incidentally for professional purposes and that too with the consent of the landlord, then the case would go out of the purview of Section 13[3][e] of the Delhi and Ajmer Rent Control Act, 1954 and consequently the landlord would not be entitled to see eviction of the tenant on the ground he required the premises for his own residential requirements. We find the facts in that case to be markedly different and it was the speciality of the facts which was largely instrumental in persuading this Court to render its decision in the aforesaid manner. Moreover, the Court had not considered the question whether the conversion of a residential premises into a non-residential one without the permission of the Rent Controller was permissible under the Delhi & Ajmer Rent Control Act and if it was not permitted, how far the contravention would affect the rights of the parties. In our opinion, the more relevant decision to be noticed would be Kamal Arora v. Amar Singh, 1986 [Suppl] SCC 481 where this Court declined to interfere with an order of eviction passed in favour of the landlord as the Court was of the view that even if the landlord and the tenant had converted a residential building into a non residential one by mutual consent, it would still be violative of Section 11 of the East Punjab Rent Restriction Act and, therefore, the landlord cannot be barred from seeking recovery of possession of the leased building for his residential needs. We are therefore of the view that the findings of the Rent Controller and the Appellate Authority about the appellant having taken the hall on lease only for running a clinic and that he had not changed the user of the premises have been rendered without reference to the pleadings and without examining the legality of the appellant's contentions in the light of Section 11 of the Act. We do not therefore think the High Court has committed any error in law in ignoring the findings rendered by the Statutory Authorities about the purpose for which the hall had been taken on lease.” 9. The learned Counsel for the appellant further contended that, in so far as the document which is more than 30 years old is concerned, though its execution need not be proved, the contents would have to be proved. In the instant case, the contents were not proved, hence the said document was of no avail to the appellant to support their case of having acquired the ownership of the suit property on account of the said gift-deed. The learned Counsel has placed reliance upon the judgment a learned Hon'ble Single Judge of this Court reported in 2005 [1] Mh.L.J. 306 (Prabhakar Balasa Saoji .vrs. Subhash Baburao Malode and others). The learned Counsel submitted that the fact that the defendants were in possession of the property since last more than 30 years was a factor in their favour to show that they were the owners and therefore, are in possession of the property. 10. Per contra, it is submitted by the learned Counsel Shri B.N. Mohta, appearing for the respondent/ original plaintiff, that the contentions of defendants that there is no mention of the document in the pleadings is misconceived. The learned Counsel submitted that, prior to filing of their written statement the defendants has filed an application dated 20.11.1978 (Exh.8) and called upon the plaintiff to give better particulars of the case made out in the plaint, on the basis of the orders passed on the said application the better particulars were furnished to the defendants by the plaintiff' vide his reply dated 04.07.1979 (Exh.10). In paragraph no.2 of the said reply it is categorically mentioned by the plaintiff, that the said property was gifted to the plaintiff's mother by the plaintiff's grandmother and since the plaintiff is the only surviving, he has acquired title to the suit property. Shri Mohta, the learned Counsel further submitted that it is not enough for the defendants to show ignorance of the existence of the Gift-deed. There ought to have been specific pleading denying the said document and challenging the same. Shri Mohta, the learned Counsel further submitted that it is not enough for the defendants to show ignorance of the existence of the Gift-deed. There ought to have been specific pleading denying the said document and challenging the same. In absence of any such challenge to the contents of the said document, it was not necessary for the plaintiff to prove the said document which was more than 30 years old. The learned Counsel for the plaintiff relied upon the judgment of Madhya Pradesh High Court reported at AIR 1992 Madhya Pradesh 1 (Indore Bench) (Hariram Lehrumal Sindhi .vrs. Anandrao Narayanrao Mukati and others), wherein it has been held that pleading showing want of knowledge of a particular fact amounts to admission of the said fact. Reference could also be made to the judgment of the Hon'ble Apex Court reported in (1993) 4 SCC 6 in the matter of Lohia Properties (P) Ltd. .vrs. Atmaram Kumar) and the judgment of the learned Single Judge of this Court reported in (1995) 1 Mh.L.J. 22 in the matter of (Sambhaji Laxman Pawar .vrs. Abdul Wahed Rahmatullah) wherein it has been held that the non-denial of the averment in the written statement amounts to admission. The learned Counsel submitted that since both the Courts have concurrently held that in so far as the plaintiff is concerned he has proved his title to the suit property, this Court should therefore not interfere. 11. I have heard the learned Counsel for the parties and given my anxious consideration to the rival contentions. 12. In the context of the substantial questions of law which have been framed, it would be relevant to note that the plaintiff vide his reply to the application dated 04.01.1979 of the defendants for better particulars, in paragraph no.2 of the said reply, relies upon the Gift-deed and has mentioned specifically that by the said gift-deed the grand mother of the plaintiff had gifted the said property to the plaintiff's mother and since the plaintiff was the only surviving heir of his mother, the plaintiff' had acquired the title to the said property. 3. It is well settled that when better particulars which are sought for by the other side, have been furnished by the plaintiff, they have the effect of becoming part of the plaint and it was therefore, incumbent upon the defendants to deal with the said gift-deed. 3. It is well settled that when better particulars which are sought for by the other side, have been furnished by the plaintiff, they have the effect of becoming part of the plaint and it was therefore, incumbent upon the defendants to deal with the said gift-deed. However, it is relevant to note that in the written statement, the defendants have denied the knowledge of the gift-deed. The deposition of the witness of the defendants is also replete with the absence of knowledge of the Gift-deed by the defendants. If the defendants were aggrieved by the fact that the plaintiff was claiming title on the basis of the gift-deed, the defendants ought to have categorically taken a stand one way or the other as regards the said gift-deed. In the light of the material on records, especially Exh.8 which is an application of the defendants and the reply dated 04.01.1979 [Exh.10], it cannot be said that as both the Courts below have relied upon the document which is not part of the pleadings. In my view, therefore, there is no merit in the said contention of the appellants/ defendants. 14. In so far as the contention of learned Counsel for the appellants/defendants, that though in respect of a document which is more than 30 years old, its execution etc. need not be proved, but its contents would have to be proved. In my view the said submissions is totally misconceived. As mentioned hereinabove, that the pleadings of the defendants as well as the deposition, is replete with the stand of the defendants showing absence of knowledge of the said gift-deed dated 16.01.1930. There is, therefore, absolutely no challenge to the said document by the defendants. Once it is held that denial of knowledge would amount to an admission, then there was no obligation on the part of the plaintiff to prove the contents of the said gift deed dated 16.01.1930, and therefore, both the Courts below have rightly proceeded on the basis that the gift-deed does not require any further corroboration. In my view, the reliance on the judgment of learned Single Judge of this Court in Prabhakar Saoji's Case [supra] by the appellant is misplaced in the light of the aforesaid facts. 15. In my view, the reliance on the judgment of learned Single Judge of this Court in Prabhakar Saoji's Case [supra] by the appellant is misplaced in the light of the aforesaid facts. 15. Though Shri D.C. Daga, learned Counsel for the appellants sought to lay much stress on the aspect that both the Courts below have proceeded to decree the suit on the basis of the gift-deed, in absence of any pleadings in that behalf, it is required to be noted that though the trial Court at the first stage, when the decree was passed on 17.02.1982 and thereafter, at the second stage on remand on 22.02.1988 had recorded a finding in respect of the gift-deed. The defendants while challenging the decree in the first Appellate Court had not taken any specific ground assailing the decree on the ground now sought to be raised in the Second Appeal. In my view, if the defendants were so aggrieved by the said fact they could have made it a ground of challenge in the grounds in the memo of appeal of Regular Civil Appeal No. 59/1990, which they had filed against the decree dated 22.02.1988, but, having not done so, in my view, the defendants are not entitled to raise the said ground in the present Second Appeal. However, since I have already dealt with the two substantial questions of law, in respect of which I have recorded my answers hereinabove, in my view, there is no requirement to dismiss the Second Appeal on the ground that the defendants have not raised the ground now sought to be raised, before the first Appellate Court. 16. Both the Courts below, as mentioned hereinabove have concurrently held on the basis of the said gift-deed, that the plaintiff has proved his title to the suit property. The question of law stands answered in terms of what is stated hereinabove. In my view, there is no merit in the Second Appeal, which is accordingly dismissed, with no order as to costs.