Kausalyabai @ Akkabai vs Harishchandra Munnalal Gupta

Kausalyabai & Akkabai (Dead) By LRs. ... Appellants

Versus

Harishchandra Munnalal Gupta ... Respondent

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. Defendant in a suit for recovery of possession filed by her brother

(Respondent) is before us challenging the legality and/or validity of the

judgment and order dated 29.6.2004 passed by a learned Single Judge of the

High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second

Appeal No.13 of 2001 dismissing an appeal preferred by the appellant

herein against a judgment and order dated 7.12.2000 whereby and 2

whereunder the judgment and order dated 25.01.1995 passed by the learned

Trial Judge was reversed.

3. Original parties to the suit were brothers and sisters. They had

another brother, Dr. D.C. Gupta. The property in suit is said to be an

ancestral property. Appellant became a widow in 1945. She, therefore,

came to stay with her parents. Father of the original parties died in 1947.

Respondent and his brother, therefore, became owner of the properties.

Plaintiff-respondent was a Constable. He had been occupying a

Government accommodation. Allegedly, he allowed his sister to stay in his

house, inter alia, on the condition that she would vacate the same on his

retirement.

4. Plaintiff in his plaint alleged that the defendant was a licensee, which

was revoked by a notice dated 3.5.1982. As despite the same, the defendant

did not vacate the licenced premises, the suit was filed.

Plaintiff, inter alia, contended that he had been granted a permanent

lease by an order passed by Nayab Tehslidar on 30.11.1979. Plaintiff,

however, did not implead his brother or his heirs or legal representatives in

the said suit. Defendant-appellant, however, contended that she had been in

possession of the premises in suit even before her husband's death and has

allegedly been exercising all rights of ownership in the property in suit 3

including payment of all rates and taxes. The suit was filed on 9.6.1982.

Allegedly, in the proceedings before the Nayab Tehsildar, the defendant was

not a party. She came to know about the proceedings before the said

authority in respect of grant of permanent lease on 4.5.1982. She filed a

review application on 20.8.1982. The said review petition was dismissed.

An appeal was preferred thereagainst and the learned Additional Collector

being the appellate authority by an order dated 20.6.1986 allowed the said

appeal and remitted the matter back to the original authority in terms

whereof, the review application revived. By reason of an order dated

19.1.1991, Collector, Buldhana revoked the said grant in favour of the

plaintiff upon setting aside the order dated 30.11.1979. Plaintiff preferred

an appeal thereagainst. By reason of an order dated 25.1.1995, the

Additional Commissioner, Amravati Division, Amravati allowed the said

appeal in part directing the Collector to await final decision of a competent

court whose decision is final and take action accordingly.

5. The defendant sought leave for amendment of her written statement

inserting paragraphs 8(A) and 9(A) which are in the following terms :

"8(A)Without prejudice to any above contentions it is submitted that this defendant is in possession of the suit plot openly, continuously, peacefully and without any interruption as owner of the suit plot and showing hostile attitude towards all since last more than 30 years and therefore this 4

defendant has acquired title by adverse possession. That the plaintiff has no title to the suit property and he failed to establish the same. Therefore, instant suit not at all maintainable and cannot lie. That the electric meter in the suit house is in the name of this defendant since beginning and this defendant has paid the charges for the same. That the taxes of the suit plot were also borne by this defendant. It is submitted that, this defendant has acquired the title of the suit plot by way of adverse possession and therefore, the plaintiff has no locus standi to file the present suit against him. The suit is also bad for non-joinder of necessary party and hence the suit of the plaintiff deserves to be dismissed with costs.

9(A) Without prejudice to the contents made above, alternatively, it is submitted that the plaintiff has no locus to grant alleged licence and further even if the story put forth by the plaintiff is taken as it is in relations with property in question five on licence then the Civil Court has no jurisdiction to entertain and try present suit as the property in question comes within the amended provision of Central Provinces and Barer letting of Houses and Rent Control Order 1949 and hence unless and until permission to that effect is not obtained from the competent authority for issuing quit notice and legally the alleged lease is not terminated, no suit for possession can be against the defendant."

6. The suit was dismissed by the learned trial Court by a judgment dated

16.7.1985. Plaintiff preferred an appeal thereagainst. The First Appellate

Court, however, was of the view that the learned Trial Judge was not correct 5

in dismissing the suit as the plaintiff had derived title over the suit land and

the defendant had no title therefor.

It was furthermore opined that the plea of adverse possession was

also not available to the defendant. A Second Appeal preferred thereagainst,

as noticed hereinbefore, has been dismissed in limine.

7. Mr. Manish Pitale, learned counsel appearing on behalf of the

appellant, would contend that despite the fact that several substantial

questions of law arose for consideration before the High Court, it

erroneously dismissed the appeal in limine, inasmuch as the subsequent

events, namely, that the order passed by the Nayab Tehsildar dated

20.12.1979 ceased to have any force, was not taken into consideration.

8. The learned counsel appearing on behalf of the respondent, however,

would support the impugned judgment.

9. Plaintiff-Respondent in the suit proceeded on the basis that he had

title over the property in suit by reason of the grant of permanent lease in

terms of the order dated 30.11.1979 passed by the Nayab Tehslidar.

However, the said order having regard to the subsequent event must be held

to have not attained finality. If the contention of the appellant that the

property belonged to her father, and the same devolved on plaintiff and his 6

brother in equal shares, is correct, the subsequent events which have taken

place, in our opinion, should have been taken into consideration by the High

Court. If the other brother of the plaintiff had equal share in the property,

who is now dead, and whose heirs and legal representatives are said to be

residing in the same premises, the High Court may have to consider the

effect of their non-impleadment in the suit. Plaintiff, as noticed

hereinbefore, filed the suit only in terms of the order of grant of permanent

lease on or about 30.11.1979. If that has not attained finality by reason of

the subsequent events and awaiting the decision of the Civil Court, the

effect thereof must be taken into consideration by the High Court.

10. For the reasons aforementioned, the impugned judgment is set aside

and the matter is remitted to the High Court for consideration of the matter

afresh upon formulating substantial questions of law.

11. The appeal is allowed with the aforementioned observations. No

costs.

...............................J. [S.B. Sinha]

................................J. [Dr. Mukundakam Sharma] 7

New Delhi;

March 3, 2009