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2012 DIGILAW 1458 (BOM)

Puniyabai v. Bhaddu

2012-08-03

M.N.GILANI

body2012
Judgment : 1. This is an appeal by the original plaintiff directed against the judgment and decree dated 10/12/1991 passed by the Additional District Judge, Nagpur in Regular Civil Appeal No.72/1984 thereby allowing the appeal by reversing the judgment and decree dated 4/1/1984 passed by the Joint Civil Judge Junior Division, Nagpur in Regular Civil suit No.1571/1980. 2. Factual matrix is thus: The parties are at dispute over the ownership right in the suit house bearing old No.438, New No.114, situated at Bhoipura, Nagpur. One Lukka had left behind him Lacchibai – widow, Puran – son and Jankibai – daughter. This Jankibai is the original plaintiff. The suit house is on nazul land which was leased out to Puran. Puran predeceased his mother. After his death, the plot came to be recorded in the name of Lacchibai. After death of Lacchibai, Jankibai inherited the same. It is the case of the plaintiff that the defendant belongs to their caste and therefore, she and Lacchibai had allowed the defendant to occupy the portion of the house. Thus the defendant came to occupy one room and one chhapari as licensee of the plaintiff and her mother. This happened three years prior to filing of the suit presumably, in the year 1978. When the marriage of son of defendant was performed, on his request he was allowed to occupy one more chhapri. On 10th of July 1980 the plaintiff called upon the defendant to vacate the premises. The defendant replied the notice and set up his own case. 3. The defendant filed written statement and denied the title of the plaintiff. His case was that the suit house was originally owned by one Bodhi who had 2 sons namely Risal and Lukka and one sister Chironji. He is son of Risal. Risal and Lukka constituted joint family and was in possession of the suit house. Defendant was born in the suit house. Lukka predeceased Risal. Risal died when defendant was 2 months old. Plaintiff is son of daughter of Lukka and uncle of the defendant. After death of Risal the property devolved upon his mother Gogiyabai and Lacchibai the mother of the plaintiff. Gogiyabai died in the year 1955 and Lacchibai died after the plaintiff was married. After marriage plaintiff went to reside with her husband at Hansapuri (different locality in Nagpur). Plaintiff is son of daughter of Lukka and uncle of the defendant. After death of Risal the property devolved upon his mother Gogiyabai and Lacchibai the mother of the plaintiff. Gogiyabai died in the year 1955 and Lacchibai died after the plaintiff was married. After marriage plaintiff went to reside with her husband at Hansapuri (different locality in Nagpur). He being a sole survivor of his grandfather Bodhi, he has a right of ownership over the suit house. Inter alia it is pleaded that without keeping the defendant informed the plaintiff carried out mutations in the corporation record. In alternative, the plea of adverse possession is also raised. 4. The learned Trial Court framed as many as four issues. Parties went to trial on those issues. Both plaintiff and defendant entered the witness box. After considering the evidence, learned Trial Court held that the plaintiff is owner of the suit house. Case of the plaintiff that defendant was a licensee in the suit house was also accepted. Ultimately, the defendant was directed to hand over the possession of the suit house. 5. Appeal was carried to the District Judge, Nagpur. By the time the appeal was heard i.e. on 10th of December 1991 there was an amendment to C.P. and Berar Letting of Premises and Rent Control (Second Amendment) Order, 1989 (for short “Order”). On that basis, it was canvassed before the Appellate Court that even a licensee cannot be evicted without permission of the Rent Controller. Since the learned Trial Court has returned the finding that the defendant was a licensee in the suit premises, it was contended that defendant is protected by the said provision. The learned Appellate Court observed that the finding of the Trial Court that plaintiff is the owner of the suit house is not disputed and formulated only one question about the nature of occupation of the suit house by the defendant visavis protection available to him under the provisions of said Order. The Appellate Court held in favour of the defendant and allowed the appeal by setting aside the judgment and decree of the Trial Court. Hence this second appeal by the original plaintiff. 6. On 22/7/1992 this Court admitted the appeal, however, without formulating any substantial question of law. Mr. The Appellate Court held in favour of the defendant and allowed the appeal by setting aside the judgment and decree of the Trial Court. Hence this second appeal by the original plaintiff. 6. On 22/7/1992 this Court admitted the appeal, however, without formulating any substantial question of law. Mr. Deshpande, the learned counsel for the appellant, relied upon the Single Judge decision of this Court in case of NababkhanAbdullakhan and another V/s. Jamrubi w/o Abdullakhan reported in 1992 Mh.L.J. 260. Relying upon the provisions of Classes 13 (1), 13A and 2 (4A) of the Order it is held that mere licensee by whom rent is not payable not covered by the term “tenant” as defined in clause 2(5) and consequently, no permission is required by clause 13 (1) for eviction of such licensee. 7. In view of the fact that First Appellate Court allowed the appeal by holding that defendant is entitled to the protection under Rent Control Order and declined to adjudicate upon other issues involved in the appeal may be because of the concession given by the learned counsel for the appellant/defendant or for other reasons, the fact remains that serious issues about the title, adverse possession raised in the suit remained to be decided by it. Therefore, the substantial question of law involved in this appeal is : whether the approach of the First Appellate Court in disposing of the appeal only on the ground of protection under Rent Control Order which was not the ground taken up in the suit but was raised for the first time before it and declining to formulate other points involved in this appeal is sustainable in law ? Answer has to be in the negative. 8. Order 41 Rule 31 enjoins a duty on the First Appellate Court to formulate the points for determination, record the decision thereof and give its own reasons for the said decision. Failure to comply is not irregularity. It is an illegality. The Fist Appellate Court is the fact finding Court and therefore has to consider all the evidence on record. The judgment without consideration of evidence and without determining all points that arose for adjudication cannot be sustained. Failure to comply is not irregularity. It is an illegality. The Fist Appellate Court is the fact finding Court and therefore has to consider all the evidence on record. The judgment without consideration of evidence and without determining all points that arose for adjudication cannot be sustained. In the instant case although the point of protection under Rent control Order was raised and appellant was contented with this for the time being; this does not absolve the First Appellate Court of its duty to substantially comply with the provisions of Order 41 Rule 31. 9. Reference can be made to the decision in case of GannmaniAnasuya and others V/s. Parvatini Amarendra Chowdhary and others reported in (2007) 10 SCC 296 while remanding the matter to High Court their Lordships observed that : “It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of the appellants in terms of Order 41 Rule 31 of the code of Civil Procedure. The High Court failed to address itself on the said issue. Thus, apart from issues 2 and 4, other points which arise for its consideration including the extent of the share of the plaintiffs and Defendant 1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the learned trial Judge. Issues 2 and 4, in our opinion. Therefore, require fresh consideration at the hands of the High Court.” In H. Siddiqui V/s. A. Ramlingam reported in 2011 (4) S.C. 240 dealing with the Order 41 Rule 31 Their Lordships observed that : “It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.” 10. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.” 10. Apart from the issue of protection to the defendant under Rent Control Order, serious issues of title and adverse possession are involved in the case and it was mandatory on the part of First Appellate Court to decide the same. 11. It was contended by the learned counsel for the appellant that the respondent/defendant did not file any cross appeal and therefore, the question that First Appellate Court did not decide all the issues involved in the appeal cannot be raised by him. It is pertinent to note that the decree of the First Appellate Court is in favour of the respondent/defendant. There is nothing in the decree against which the appeal or cross objection could have been filed. Thus when there was no occasion for the respondent to file an appeal, in the appeal filed by the adverse party the – respondent can very well assail the adverse finding in the judgment impugned. I am supported by the decision in Nana Tukaram Jaikar V/s. Sonabai and others reported in AIR 1982 Bom. 437 . In Naliniand others V/s. Padmanabhan Krishnan and others reported in AIR 1994 Kerala 14, by relying upon the decision of the Division Bench of Allahabad High Court in case of Balkrishna Das Agrawal .V/s. Smt. Radha Devi reported in AIR 1989 All 133 , in Leena Mathew V/s. Kerala Shipping Corporation reported in AIR 1988 (1) K.L.T. 212 and in Mohant Dhangir .V/s. Shri Madan Mohan reported in AIR 1988 SC 54 it was held that it is a privilege of respondent to object to any part of the decree without preferring any appeal or cross objection. This was for the reason that the impugned judgment and decree was in favour of the respondent. The facts of the case in hand are similar. 12. For the reasons aforestated, the judgment and decree passed by the first appellate court is set aside and matter is remanded back for decision afresh, after hearing the parties and in the light of the observations made hereinabove. The parties shall appear on 3rd of September 2012 before the court to whom the appeal is assigned. 12. For the reasons aforestated, the judgment and decree passed by the first appellate court is set aside and matter is remanded back for decision afresh, after hearing the parties and in the light of the observations made hereinabove. The parties shall appear on 3rd of September 2012 before the court to whom the appeal is assigned. The Registrar shall transmit the record and proceedings forthwith to District Court, Nagpur. On receipt of the same, the appeal be restored to its original number. The appeal stands allowed to the aforestated extent. Considering the fact that the suit was filed in the year 1980 the learned District Judge shall make an endeavour to dispose of the appeal as expeditiously as possible and in any case within four months from the date of appearance of the parties. In the peculiar facts and circumstances of the case there shall be no order as to costs.