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2015 DIGILAW 1459 (BOM)

Suresh v. Ashok Girdharilal Chandak

2015-07-03

A.P.BHANGALE

body2015
JUDGMENT : Heard. 2. Admit - on the following substantial question of law : Whether the learned Principal District Judge, Wardha erred in law to decree the suit for vacant possession of the suit shop when title of the shop was not proved to the satisfaction of the trial Court ? 3. The appeal is taken up for final hearing. By this appeal, challenge is to validity and legality of the Judgment and Order dt. 7-8-2014 delivered by the learned Principal District Judge, Wardha in Regular Civil Appeal No. 178 of 2010 whereby the appeal was allowed and the decree passed by Joint Civil Judge (Jr. Dn.), Arvi in Regular Civil Suit No. 21 of 2008 on 8-7-2008 was set aside. 4. Briefly stated, the facts are as under :- 5. The plaintiffs in the suit claimed ownership of shop constructed admeasuring 6 ft. x 8 ft. which was bounded on east by the house of one Rathi, on west by main road, on north by shop in possession of one Kanerkar and on south by open space belonging to one Shankarlal Rathi. According to the plaintiffs in the suit, the defendant is encroacher of the suit shop since 12-3-2008. Therefore, notice dt. 11-3-2008 was given, but then the defendant refused claim of the plaintiffs on the ground of ownership of shop. As, according to the defendant, he is in possession of the shop as tenant of one Mallubai and is operating the business of saloon at the said shop. Thus, the defendant refused to hand over possession in favour of the plaintiffs on the basis of claim as to ownership of the shop thereof. The trial Court found that the plaintiffs had failed to establish ownership over the suit shop as also alleged ground that the defendant is a trespasser in respect of the suit shop. The trial Court also held that the suit was barred by limitation and bad in law. That being so, the learned trial Judge, after considering the evidence led before it, dismissed the suit. In appeal by the plaintiffs i.e. Regular Civil Appeal No. 178 of 2010, the learned principal District Judge, Wardha, however, favoured the case of the plaintiffs to hold that the defendant is a trespasser and that the suit was within limitation and in the result, awarded decree of possession to the plaintiff. 6. In appeal by the plaintiffs i.e. Regular Civil Appeal No. 178 of 2010, the learned principal District Judge, Wardha, however, favoured the case of the plaintiffs to hold that the defendant is a trespasser and that the suit was within limitation and in the result, awarded decree of possession to the plaintiff. 6. I have considered the submissions at the bar as well as the impugned Judgment and Order. In the light of the Judgment and Order passed by the trial Court and facts which are revealed from the Judgments by the Courts below, considering that the suit shop is immovable property, which was described in the plaint, it was obligatory for the plaintiffs to lead documentary evidence to establish their title to the suit shop. Mere claim that the plaintiffs are owners and it is their ancestral property without any corroboration to such claim cannot take the case of the plaintiffs any further when they prayed for possession of the immovable property i.e. suit shop on the basis of their title to the suit shop. The defendant in defence to the suit resisted it on the ground of his long possession. According to the defendant, he also holds electric connection in respect of shop "Bhavna Hair Dressers" as also N.O.C. issued by the Municipal Council, Shops and Establishments Licenses. According to the defendant, he is tenant of one Mallubai and holds Shops and Establishment license, which was produced as Exh.48 issued under the Bombay Shops and Establishments Act. He is also consumer having Identity No. 402660070096 having electric supply through electric meter installed by the Maharashtra State Electricity Distribution Company. It is the case of the defendant that he used to pay rent in advance to Mallubai who is no longer living. It is the case of the plaintiffs that they are claiming as legal heirs or representatives of said Mallubai alleged landlady of the defendant. Under these circumstances, case of the defendant was comparatively on better footing to hold actual physical possession of the shop operated under the name and style as "Bhavna Hair Dressers" in possession of the defendant. In the absence of any prima facie acceptable evidence on the part of the plaintiffs, they were not entitled to claim possession. That being so, their claim was rightly dismissed with costs by the trial Court. 7. In the absence of any prima facie acceptable evidence on the part of the plaintiffs, they were not entitled to claim possession. That being so, their claim was rightly dismissed with costs by the trial Court. 7. Assuming for the sake of argument that the defendant is a trespasser, one cannot overlook the fact that he is in actual physical possession of the suit shop holding electricity connection in respect of the shop conducted in the name as "Bhavna Hair Dressers". He claims that he was tenant of one Mallubai who is no more living. These are the facts and circumstances which can surely enable the defendant as possessor of the suit shop to resist the suit filed by the plaintiffs on the ground of their alleged ownership of the suit shop. Since, according to the defendant, he was tenant and paid rent in advance to Mallubai landlady who is no longer living, a person or persons through her could have on the pretext of ownership of the shop and claim as landlord have instituted the suit according to law to evict the defendant. It was not such a case before the trial Court as well as in the first Appellate Court. Bearing in mind the basic principle of law in civil jurisprudence that even trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof. Suffice it to say that there was no evidence whatsoever in favour of the plaintiffs to establish their title to the suit property and therefore, the suit was rightly dismissed by the trial Court by a well reasoned Judgment. Interference by the first Appellate Court with the finding of dismissal of the suit was unwarranted and contrary to law for abovesaid reasons. Hence, the impugned Judgment and order is set aside and the order of the trial Court is restored. The Second Appeal is disposed of accordingly.