Bombay High Court
Mr.Dnyanoba Dhondiba Kasab vs Mulla Abbasbhai Kadarbhai Abduji ... on 23 October, 2018
Author: R. G. Ketkar
Bench: R. G. Ketkar
1
907.CRA.519-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Civil Revision Application NO. 519 OF 2018
WITH
Civil Application No.576 of 2018
Mr.Dnyanoba Dhondiba Kasab ...Applicant
Versus
Mulla Abbasbhai Kadarbhai Abduji
Charity Trust And Others ...Respondents
....
Mr. Rajesh More, Advocate for the Applicant.
Mr. R.N. Sanghavi, Advocate for the Respondents.
....
CORAM : R. G. KETKAR, J.
DATE : 23rd OCTOBER, 2018 P.C. 1. Heard Mr.Rajesh More, learned counsel for the applicant and
Mr.R.N. Sanghavi, learned counsel for the respondents.
2. This C.R.A. takes exception to the judgment and decree dated 12.2.2007 passed by the learned trial Judge in Regular Civil Suit No.2021/1996 as also the judgment and decree dated 21.9.2017 passed by the learned District Judge in Civil Appeal No.285/2007. Both the Courts decreed the suit instituted by the respondents herein and held that applicant No.1 Dnyanoba Kasab is a trespasser. He has unauthorizedly occupied room No.3, admeasuring 80 sq. ft., situate in House No.558-A, Nana Peth, Pune. 1/3 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:15:00 ::: 2
907.CRA.519-18.doc
3. Mr. More has invited my attention to the amended plaint filed by the respondents in the Court of Civil Judge, Senior Division, Pune inter alia contending that one Ramchandra Vithu (Vithal) Kasab was tenant in the suit premises. Ramchandra Vithu (Vithal) Kasab was residing along with his wife in the suit premises. They had no issue. On 4.1.1989 Ramchandra Vithu (Vithal) Kasab died. His widow Parvatibai made application on 30.3.1989 for issuing rent receipt in her name. It is further contended that on 13.10.1995, Parvatibai made application mentioning therein occupation of defendant No.1. Parvatibai died on 15.10.1995. The couple had no issue. In paragraph-4A, respondents No.1 to 5 contended that defendant No.1 Dnyanoba has illegally and unauthorizedly committed trespass and is occupying the suit premises.
4. Mr. More submitted that the Courts below accepted the case of the plaintiffs that defendant No.1 is a trespasser. In other words, the suit is not between the landlord and the tenant. He invited my attention to the order dated 10.9.2018 passed by this Court. On the oral request made on behalf of the appellant therein, permission was granted to convert Second Appeal into C.R.A. without expressing any opinion on the maintainability.
5. Mr. More submitted that defendant No.1 Dnyanoba instituted the suit for declaration of his tenancy rights in the suit premises. The trial Court decreed the suit. The Appellate Court allowed the appeal and dismissed the 2/3 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:15:00 ::: 3
907.CRA.519-18.doc suit filed by defendant No.1 herein. Against that, defendant No.1 has instituted Writ Petition No.1246/2004 and the same is admitted and is pending for final disposal.
6. A perusal of the impugned orders and in particular the order of the trial Court shows that the suit was decreed by the learned Jt. Civil Judge, Senior Division, Pune also discharging the duties and functions as also exercising the powers as 6th Additional Judge, Small Causes Court, Pune. Mr. More, therefore, orally applied for permission to convert the Second Appeal into C.R.A. and that permission was granted without expressing any opinion as to maintainability.
7. After considering the averments made in the plaint as also the fact that the suit was decreed by the learned Jt. Civil Judge, Senior Division, Pune, in my opinion, C.R.A. is not maintainable and the applicant rightly instituted Second Appeal in this Court. In view thereof, leave to convert C.R.A. into Second Appeal is granted. S.A. No.898/2017 along with order dated 14.12.2017 stands restored to its original position. List Writ Petition No.1246/2004 along with S.A. No.898/2017. Parties are at liberty to move the Hon'ble the Acting Chief Justice for placing these matters before the one and the same Court. Liberty to the parties to move after obtaining orders from the Hon'ble the Acting Chief Justice.
(R. G. KETKAR, J.) Deshmane (PS) 3/3 ::: Uploaded on - 26/10/2018 ::: Downloaded on - 27/10/2018 01:15:00 :::