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2013 DIGILAW 948 (BOM)

Narayan Ram Shet Shirodkar v. Rajiv Fondu Gude

2013-05-06

V.M.KANADE

body2013
Judgment : 1. Appellant has filed this second appeal challenging the judgment and order passed by the Additional District Judge in Regular Civil Appeal No.85 of 2002 dated 03/05/2003. By the said judgment and order, the learned Additional District Judge, Panaji was pleased to allow the appeal and the judgment and decree passed by the Civil Judge, Junior Division, Ponda in Regular civil Suit No.81/99/B was set aside. 2. Brief facts are as under:- 3. Respondent No.1 is the original Plaintiff who instituted a suit in the Court of Civil Judge, Ponda, Goa against the Appellant/original Defendant for restoration of possession and recovery of mesne profit. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”. 4. The dispute was in respect of a structure in the property bearing Hissa No.1088 in Village Panchayat of Shiroda. The case of the Plaintiff is that his grandfather Rudraji Sinai Gude was, during his life time, running a shop in the suit structure “LOJA”. It is the case of the Plaintiff that after the death of his grandfather, the said “LOJA” was kept closed and in the month of November, 1988 Defendant, taking advantage of the continuous absence of his father Fondu who was residing in Mumbai on account of service, forcibly and illegally opened the lock and occupied the said “LOJA”. Thereafter, Plaintiff's father lodged a complaint with the Village Panchayat of Shiroda. Plaintiff's father Fondu died on 06/08/1999. According to the Plaintiff, when they visited the shop, they found that it was opened and when he made inquiries, Defendant filed a false complaint against him and his mother and, as a result, criminal proceedings were initiated against them. They were, however, acquitted of the offence with which they were charged by the judgment and order dated 08/03/1994. The suit was filed by the Plaintiff in 1999 alleging that the Defendant was not a lessee but a rank trespasser and, therefore, he was liable to be evicted. Plaintiff also claimed to recover the mesne profit for his illegal and unauthorized occupation @ Rs 200/- per month. Defendant filed his Written Statement and claimed that he was a tenant in respect of the suit property and that the Civil Court has no jurisdiction to entertain the suit. Plaintiff also claimed to recover the mesne profit for his illegal and unauthorized occupation @ Rs 200/- per month. Defendant filed his Written Statement and claimed that he was a tenant in respect of the suit property and that the Civil Court has no jurisdiction to entertain the suit. It is contended that the suit structure was let out to him by the father of the Plaintiff in 1973 and that since then he is in continuous possession of the suit structure . It has been contended in the Written Statement that, initially, rent in respect of the said premises was Rs 70/- but it was subsequently reduced to Rs 60/- and the event of rent was acknowledged by Fondu in his book in his own handwriting. It has been further contended that prior to creation of lease in favour of Defendant, the suit premises/structure was occupied by Purushottam as a haircutting saloon and also for running tailoring business since the time of its construction. According to the Defendant, he was using the structure for the purpose of storing fertilizer, cashewnut, coconut and other material. He denied that he has forcibly and/or illegally occupied the suit structure as alleged by the Plaintiff, the Respondent herein. He contended that the Plaintiff and his mother tried to forcibly dispossess him and, therefore, he had lodged a complaint against the Plaintiff and his mother. 5. The Trial Court dismissed the suit by holding that the Defendant was a lessee of the suit premises “LOJA” and the suit was dismissed for want of jurisdiction. Against the said judgment and order, the Plaintiff filed first appeal in the District Court. During pendency of the appeal, Defendant filed an application for bringing additional documents on record viz. (a) copy of Lease Agreement, (b) Verification Certificate issued by Weights and Measures, (c) Registration Certificate issued under Shops and Establishment Act and (d) Certificate issued by the Directorate of Agriculture dated 08/06/1994. The Additional District Judge was pleased to dismiss the said application. District Court, however, allowed the appeal of the Plaintiff by judgment and order dated 03/05/2003 and set aside the judgment and decree passed by the Trial Court. Being aggrieved by the aforesaid judgment and decree, Defendant has filed this second appeal. The Additional District Judge was pleased to dismiss the said application. District Court, however, allowed the appeal of the Plaintiff by judgment and order dated 03/05/2003 and set aside the judgment and decree passed by the Trial Court. Being aggrieved by the aforesaid judgment and decree, Defendant has filed this second appeal. The second appeal was admitted on the following two substantial questions of law as set out in grounds (I) and (IV) of para 21 of the Memo of Second Appeal:- “(I) Whether the rejection of the application made on behalf of the Appellant for production of additional evidence in appeal, by Additional District Judge by her Order dated 1/2/2003, is arbitrary and illegal being contrary to the provisions of Order 41, Rule 27 of Civil Procedure Code and based on erroneous and unsustainable grounds?” “(IV) Whether the grant of mesne profit in favour of the respondent, from the year 1988 and that too at the rate of Rs 200/- per month in a suit instituted in the year 1999, was arbitrary, illegal and perverse, as the claim was ex-facie barred by limitation, and is based on misunderstanding of the concept of mesne profit and perverse, being based on nil evidence?” 6. Mr. Mr. Lotlikar, the learned Senior Counsel appearing on behalf of the Appellant submitted that though the Appeal was admitted on ground Nos.(I) and (IV), they were also pressing ground Nos (II) and (III) which read as under:- “(II) Whether the findings recorded by the appellate court that the appellant trespassed into the suit structure in November, 1988 is perverse and is otherwise vitiated on account of the fact that the appellate court had relied upon Exhibit PW1/A being complaint allegedly lodged by the father of the respondent to the Village Panchayat and Exhibit PW1/B being complaint allegedly lodged by the respondent to the Electricity Department, when neither of the documents were admissible evidence or proved in accordance with law?” “(III) Whether the reversal of the finding rendered by the trial Court that the possession of the defendant/appellant in respect of the suit 'loja' was not illegal but was in his capacity as a tenant thereof rendered on the basis of exhibit PWJ/D viz the receipt book on which signatures of the father of the respondent were duly proved and the conduct of the respondent in the face of the alleged trespass is arbitrary and suffers from perversity of reasoning, surmises and misreading of the material on record, erroneous assumption and based on acceptance of oral evidence which was discarded by the Trial Court on valid grounds and discarding of oral evidence which was accepted by the trial court for valid reasons?” 7. Mr. Lotlikar, the learned Senior Counsel appearing on behalf of original Defendant, the Appellant herein submitted that the lower appellate Court had erred in rejecting the application of the Defendant for production of additional evidence. He submitted that the additional evidence which was sought to be brought on recorded was sufficient to conclusively establish that the Defendant was in possession since 1973 and the said documents supported the contention of the Appellant/Defendant. He submitted that the additional evidence which was sought to be brought on recorded was sufficient to conclusively establish that the Defendant was in possession since 1973 and the said documents supported the contention of the Appellant/Defendant. He then submitted that finding of the lower appellate Court that the Appellant/Defendant trespassed in the suit structure in November, 1988 is perverse and vitiated on account of the fact that the lower Appellate Court has relied on Exhibit-PW1/A being a complaint already lodged by father of the Respondent to the Village Panchayat and the complaint lodged by the Respondent's father to the Electricity Department being Exhibit PW1/B. He submitted that these documents also conclusively establish that the Appellant/Defendant was in possession of the property prior to 1988 which was contrary to the case of the Plaintiff that Defendant had trespassed in the suit property in 1988. He then contended that the appellate Court had erred in discarding the finding recorded by the Trial Court that the Defendant was in possession of the suit structure in his capacity as a tenant. He contended that the appellate Court had erred in discarding the document Exhibit PWJ/D which was a receipt book on which signatures of the father of the Defendant were duly proved. 8. On the other hand, original Plaintiff/Respondent who is appearing in person, contended that the Defendant was a rank trespasser. He submitted that taking advantage of the absence of his father, Defendant had entered into the suit structure and the said receipt which was in the handwriting of his father did not prove that the Defendant was paying rent. He submitted that in the said receipt book, it was nowhere stated that the Defendant had paid the rent for occupying the structure. He contended that his father used to go to his village and used to purchase material from the Defendant and had kept a running account and the amount was adjusted and accordingly entries were made in the said book. He submitted that the lower appellate Court had rightly discarded the receipt book and no reliance was placed on the said entries of the receipt book by the lower appellate Court. The Respondent/original Plaintiff has taken me through the judgment and order of the Trial Court and submitted that the lower appellate Court had rightly set aside the said finding. He submitted that the lower appellate Court had rightly discarded the receipt book and no reliance was placed on the said entries of the receipt book by the lower appellate Court. The Respondent/original Plaintiff has taken me through the judgment and order of the Trial Court and submitted that the lower appellate Court had rightly set aside the said finding. He submitted that this Court should not interfere with the finding of fact recorded by the Trial Court. He has relied upon the following judgments in support of his submissions. (1) Maria Margarida Sequeria Fernandes and Others vs. Erasmo Jack De Sequeria (Dead) Through Lrs. (Civil Appeal No.2968/12 (Arising out of SLP (C ) No.15382 of 2009 decided on 21/03/2012). (2) Sham Lal vs. Rajinder Kumar & Others ( 1994 (30) DRJ 596 ). (3) Vinod Kumar Gosalia & Ors. vs. Frank Silva Lobo Norton and Ors ((1987) 2 BOMLR 613). 9. I have heard the both, the learned Counsel appearing on behalf of the original Defendant/Appellant and the original Plaintiff/Respondent who is appearing in person at length. 10. It is quite well settled that this Court while exercising its jurisdiction under section 100 of the Civil Procedure Code should normally not interfere with the finding of fact recorded by the Trial Court, unless it is shown that the said finding is perverse and is based on material which is not reflected from the record or that the said finding suffers from perversity of reasoning, surmises and misreading of material on record and or erroneous assumption based on acceptance of oral evidence which has been discarded by the Trial Court on valid grounds. 11. It is also well settled position in law that when a suit is filed by the Plaintiff on the ground that Defendant is a rank trespasser and Defendant claims to be in lawful possession and he establishes that he is not a rank trespasser as alleged by the Plaintiff then, in that case, suit filed by the Plaintiff has to fail. It is further well settled that the Plaintiff must stand on its own strength and he cannot win on the basis of weaknesses in the defence of the Defendant. Plaintiff, therefore, if he does not succeed in establishing that the Defendant is a rank trespasser, his suit is liable to be dismissed. 12. It is further well settled that the Plaintiff must stand on its own strength and he cannot win on the basis of weaknesses in the defence of the Defendant. Plaintiff, therefore, if he does not succeed in establishing that the Defendant is a rank trespasser, his suit is liable to be dismissed. 12. In the present case, it is alleged by the Plaintiff in the Plaint that sometime in the month of November, 1988, Defendant taking undue advantage of continuous absence of the said Fondu - father of the Plaintiff in Shiroda, forcefully and illegally opened the locks and occupied the said “LOJA”. He contended that the said Fondu noticed the illegal and forcible occupation by the Defendant and lodged a complaint with Village Panchayat of Shiroda. The said complaint has been produced by PW1/Plaintiff in his evidence. Perusal of the said document discloses that it is mentioned in the said document by the father of the Plaintiff that the Defendant was illegally carrying on cement business for number of months and that Defendant was carrying on the said business without his permission. The said document itself disproves the case of the Plaintiff as averred by him in the Plaint that sometime in November, 1988 Defendant had illegally opened the lock and took possession of the suit structure. The said document clearly establishes that the Plaintiff's father had stated that the Defendant was in possession many months prior to the said complaint which was lodged. Secondly, though the Plaintiff's father died on 06/08/1989 and he had formerly lodged a complaint on 22/11/1988, present suit has been filed in 1999, almost 11 years after the alleged illegal dispossession by the Defendant. Plaintiff who is appearing in person invited my attention to the judgment and order passed by the learned Magistrate in the Criminal Complaint filed by Defendant against the Plaintiff and his mother. He contended that the said Criminal Complaint was dismissed and the Plaintiff and his mother were acquitted. Much reliance is placed on the finding given by the Criminal Court in the said case. It is a well settled position in law that the finding given by the Court in criminal case cannot be relied upon for the purpose of establishing a fact in a civil case. Much reliance is placed on the finding given by the Criminal Court in the said case. It is a well settled position in law that the finding given by the Court in criminal case cannot be relied upon for the purpose of establishing a fact in a civil case. In my view, therefore, no reliance can be placed on the said finding which has been recorded by the learned Magistrate who was pleased to acquit the Plaintiff and his mother in the criminal case filed by the Defendant. 13. The lower Appellate Court has discarded receipt book which has been produced by the Defendant. The said receipt book admittedly is in the handwriting of Plaintiff's father. There are several entries which show that the father of the Plaintiff had accepted various sums from the Defendant from time to time and prior to that from one Purushottam. The documentary evidence on record indicates that the Defendant was in possession much before the complaint was filed by the Plaintiff's father. The lower appellate Court, therefore, in my view, has completely erred in coming to the conclusion that the Defendant was a rank trespasser and that he was not entitled to occupy the suit structure. The documentary and oral evidence which has been brought on record is directly contrary to the case of the Plaintiff that when the Plaintiff and his mother had gone to Shiroda in December, 1990, they saw that Defendant opened the suit structure and was sitting in the same and when they asked the Defendant as to why he had opened the suit structure, Defendant assaulted PW1/Plaintiff and his mother PW2. The lower appellate Court, therefore, had completely misread the evidence and, as such, in my view, the said finding of the lower appellate Court that the Defendant is a rank trespasser is liable to be set aside. So far as the judgments on which reliance has been placed by the Plaintiff who is appearing in person are concerned, there cannot be any dispute regarding the ratio of the said judgments. However, ratio of the said judgment is not applicable to the facts of the present case. 14. Though the second appeal was admitted on ground No. (I) and (IV), the learned counsel appearing on behalf of the Defendant, the Appellant herein was permitted to make submissions on ground Nos. However, ratio of the said judgment is not applicable to the facts of the present case. 14. Though the second appeal was admitted on ground No. (I) and (IV), the learned counsel appearing on behalf of the Defendant, the Appellant herein was permitted to make submissions on ground Nos. (II) and (III) after due notice of the same was given to the Plaintiff, the Respondent herein. 15. In my view, Plaintiff has not succeeded in establishing that the Defendant, the Appellant herein is a rank trespasser and, therefore, Trial Court had rightly dismissed his suit. 16. In the result, judgment and order passed by the lower appellate Court is set aside and judgment and order passed by the Trail Court is confirmed. Second Appeal is accordingly allowed and disposed of.