Bombay High Court
Sadashiv Mahadeorao Pokle (Since ... vs Mahesh Baban Pokle, Suresh Baban Pokle, ... on 28 February, 2008
Equivalent citations: AIR 2008 (NOC) 1888 (BOM.) = 2008 (3) AIR BOM R 538 (NAGPUR BENCH), 2008 (3) AIR BOM R 538, 2008 AJHAR (NOC) 819 (BOM.) = 2008 (3) AIR BOM R 538 (NAGPUR BENCH), 2008 A I H C 2540
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. The original defendants have filed present Second Appeal challenging the concurrent judgments and decrees passed by Courts below for their eviction. Respondents No. 1 & 2 filed Special Civil Suit No. 221 of 1983 through their father and natural guardian against present appellants for recovery of possession and for damages. They claimed possession of house property located at Baraipura, Lalganj, Nagpur, on the basis of Will. The suit came to be decreed and appellants (original defendants No. 1 to 3) were directed to hand over the possession to plaintiffs. The appellants then filed Regular Civil Appeal No. 530 of 1985 & the Court of 10th Additional District Judge, Nagpur, dismissed it with costs on 19.9.1991. On 22.11.1991 the present Second Appeal has been admitted on two substantial questions of law, the first being about the explanation of suspicious circumstances shrouding the Will and second about protection of Rent Control Legislation. During the pendency of appeal, the appellants filed Civil Application No. 2069 of 2003 and sought leave to urge additional substantial question of law in relation to nature of property. It is their contention that property bequeathed by Nathu through disputed Will was ancestral property. The application was opposed by the respondents by filing reply on 16.4.2003. Thereafter on 17.7.2006, the appellants have filed another application raising three more questions and in view of later application, the earlier application No. 2069 of 2003 has not been pressed.
2. I have heard the parties on this application on 31.1.2008 and Shri Samudra, learned Counsel appearing for the respondents stated that instead of recording separate reasons about the satisfaction as to whether such questions really arise or do not arise, the Court may hear learned Counsel for the appellants as if such questions fall for consideration and in his reply arguments he would meet the challenge on merits and also demonstrate that such questions do not fall for consideration. However, after hearing parties, I was satisfied that the said questions also arise for consideration in this appeal. Accordingly, parties have been heard on 1.2.2008 and thereafter on 6.2.2008.
3. The substantial questions of law which need consideration in this Second Appeal are:
1. Whether Will dated 29.4.1976 was voluntarily executed by deceased Nathu and whether all suspicious circumstances surrounding the Will have been dispelled by adducing cogent reasons ?
2. Whether in view of plea by respondents plaintiffs that the appellants were alternatively in possession as licensee, the appellants are entitled to benefit of amended provisions of C.P. & Berar Letting of Premises and Rent Control Order, 1949 ?
3. Whether the finding that though suit property is ancestral property, original defendant No. 1. Sadashiv had no share in it is legal ?
4. Whether finding of lower appellate Court that suit property is self acquired property of Nathu is perverse ?
5. Whether suit for possession as filed was maintainable without terminating the licence of defendants appellants ?.
From above questions, it is apparent that question No. 2 about protection of C.P. & Berar Letting of Houses and Rent Control Order, 1949, and question No. 5 about termination of licence need to be considered together while questions No. 3 & 4 about the nature of suit property can be considered together. In fact, Shri Bhangde, learned Senior Advocate with Shri Joshi, Advocate for the appellants and Shri Samudra, learned Counsel for the respondents have addressed me accordingly on these three heads only.
4. While pointing out that the suspicious circumstances surrounding the Will Exh. 31 in favour of present respondents have not been properly evaluated by Courts below, Shri Bhangde, learned Senior Advocate has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Jaswant Kaur v. Amrit Kaur reported at , to point out the norms or principles relevant for such scrutiny. He states that case of appellants was very specific and they point out that execution of Will dated 29.4.1976 by Nathu was under the influence of Baban, father of plaintiffs. He points out that Nathu was removed by Baban from suit house to his own house immediately after the death of Nathu's wife Yashodabai. The said house was located in the field belonging to Baban and Will dated 29.4.1976 has been obtained from Nathu in that house. Baban was aware of earlier Will Exh. 33 executed in favour of the appellants by Nathu in 1965 and therefore he removed Nathu from custody of appellants to obtain Will Ex.31. It is further stated that Baban was very much present when Will was executed and was registered. Both attesting witnesses on Will are close friends of Baban and stamp paper required for writing of Will was brought by servant of Baban. He further states that Baban on next day of registration of Will also got the certified copy. He points out that though Will is dated 29.4.1976, it has been registered on 15.5.1976 and Nathu thereafter has expired on 23.12.1976. He points out that explanation of Baban that after death of his wife Yashodabai, Nathu was immediately shifted to house in field is incorrect because the field was purchased by Baban in 1976 while wife of Nathu died on 4.4.1975. He, therefore, states that there is material variance between pleadings of plaintiffs and their evidence in this respect and all these suspicious circumstances have not been considered at all either by the trial Court or by the appellate Court. He argues that in fact the appellate court has misdirected the entire enquiry in this respect because it found that the Will at the most could have been influenced by Mukund and leading part in execution of Will was taken by defendant No. 4. Mukund, who was also a near relative of Nathu. He states that Mukund only brought the Sub-Registrar for registration of Will and he has not played any other role as per evidence on record. He, therefore, states that there is refusal on the part of the lower appellate Court to apply its mind to these aspects and as such the error cannot be corrected by this Court. According to him, matter needs to be sent back to lower appellate Court for considering the role played by Baban and for recording its findings on above mentioned suspicious circumstances.
5. About the ancestral nature of property, the learned Advocate contends that the witness for plaintiff Baban himself accepted that property was ancestral property of Nathu. He contends that there is no evidence on record of any partition between Pancham i.e. father of Nathu and Narayan, a lineal ascendant of plaintiffs and defendants. Pancham & Narayan were real brothers. In absence of such partition between them, as Nathu died issueless, heirs of Narayan get share in that property. He states that learned lower appellate Court has erroneously found that there was any admission about the nature of property by present appellants. He contends that there is no such admission and evidence of defendant No. 3 Madan was not found worth consideration because of his tender age in 1976 by the trial Court and as such his evidence about 1965 Will or nature of property included therein could not have been accepted. He argues that burden was upon the plaintiffs to prove nature of property and as plaintiffs admitted that it is an ancestral property, no further enquiry in this respect was necessary. He, therefore, states that Will of Nathu at the most can be valid to the extent of his share in such coparcenary property and not beyond that. Therefore, the present appellants are coparceners along with respondents and decree for their eviction or asking them to hand over possession cannot be passed.
6. He further points out that the present respondents had earlier filed Civil Suit for eviction of present appellants before Small Cause Court alleging that they were tenant or licensee of Nathu. The said Small Cause Case No. 99 of 1980 was then withdrawn with liberty because of contention of appellants therein that they had become owner by virtue of Will Exh. 33 dated 16.12.1965. In these circumstances, even if Will in favour of respondents is upheld, the present appellants at the most become tenants or licensees of respondents and they are therefore entitled to protection of C.P. & Berar Letting of Houses and Rent Control Order, 1949. The attention is invited to amendments made to C.P. & Berar Letting of Houses and Rent Control Order, 1949, on 13.10.1989, more particularity Clause 4(A) and Clause (13-A) added thereto to extend such protection even to licensee and prohibiting decrees for possession to be executed in the absence of permission from Rent Controller. Reliance has been placed on the judgment of the Hon'ble Apex Court in the case of Dilip v. Mohd. Azizul Haq reported at , to state that said amendment is applicable even to pending proceedings and matters pending in appeal. The suit was filed in 1983 and came to be decreed in 1985. The Rent Control order came to be amended on 27.6.1989 and 13.10.1989 during the pendency of Regular Civil Appeal. He further states that it was never the case of present respondents or plaintiffs that by conduct the appellants have given up or waived the protection available to them under Rent Control Order. He argues that even if plea of estoppel by conduct is to be raised, it has to be proceeded by appropriate pleading in plaint and reliance is placed in the case of Subba Rao v. Jagannadha Rao reported at . It is argued that the Court cannot ignore the case pleaded and decision has to be within four corners of the case as pleaded and he places reliance upon the judgment of the Hon'ble Apex Court in the case of S. Venkappa v. Rangu reported at , and in the case of A.V.G.P. Chettiar v. T. Palanisamy Gounder reported at , to point out that such plea which is not taken, cannot be allowed to be raised.
7. Lastly, it is argued that it was never the case of respondents plaintiffs that the tenancy or licence of appellants is forfeited because of alleged denial of their licence. In the alternative, he points out that there cannot be any forfeiture of licence at all and places reliance upon unreported judgment of this Court in Second Appeal No. 268 of 1963 decided on 17.3.1971. In the alternative, he points out that even if forfeiture provision in Transfer of Property Act, is held applicable to licensees, there has to be a notice of forfeiture after such denial and no such notice has been given in present facts. By drawing support from the judgment in Ashwinikumar v. Gangadhar reported at 1990 Mh. L.J. 18, he contends that suit is liable to be dismissed for not issuing such notice. He contends that as forfeiture clause is not applicable, the appellants/ defendants continue as licensees and hence permission of Rent Controller in view of amended provisions of Rent Control Order was essential.
8. In reply, Shri Samudra, learned Counsel for the respondents has contended that there are no suspicious circumstances surrounding the Will at Exh. 31. He contends that none of the circumstances pointed out by the appellants constitute any suspicious circumstance requiring the respondents to explain it. Wife of Nathu expired on 4.4.1975 and after her death, Nathu came to reside with respondents/ plaintiffs. He argues that present appellants pleaded story of kidnapping by respondents but later on retracted it. He invites attention to evidence of scribe and other witnesses to show that everything has been done in accordance with law and there was no undue influence or coercion practiced to procure the Will from Nathu. He further states that Will was drawn on 24.9.1976 and it has been registered before Sub-Registrar on 15.5.1976. Nathu thereafter expired on 23.12.1976. He, therefore, states that if Nathu wanted to revoke the Will or wanted to make any other arrangement, he had enough time and he could have even complained about such obtaining of Will from him to anybody. He relies upon the judgment of the Hon'ble Apex Court in the case of Malkani v. Jamadar reported at , to argue that mere participation in process of preparation of Will is not sufficient to draw any inference in such circumstances.
9. He further invites attention to plaint to point out the allegations about the nature of property as contained therein and he invites attention to stand in written statement where defendants (present appellants) claimed ownership in themselves by stating that they have constructed suit house in 1953 and are owners since 1953. He points out that thus, the appellants have taken stand of ownership in them in spite of obtaining a Will Exh. 33 in 1965 from Nathu. He further states that defendant No. 3 has accepted that the property of Nathu was self acquired and no such plea in defence was taken at any time either before the trial Court or before the appellate Court. It is contended that only one question in this respect was put to plaintiff during his cross examination. He further states that said witness in cross examination has pointed out partition in 1925 between Pancham and Narayan. He further points out other evidence on record to show that Nathu was exclusive owner of suit property and therefore was competent to execute the Will. He, therefore, states that Courts below have rightly held the property to be self acquired property and not ancestral property of Nathu.
10. About Rent Control Order, the learned Counsel points out that in written statement there was no plea taken in alternative by the appellants/ defendants that they are licensees and in fact they claimed title and ownership in themselves. There is no averment of payment of any rent to Nathu or plaintiff and there was no such ground even in Regular Civil Appeal. Reliance has been placed on the judgment of this Court in the case of Lalabi v. Dhelullakhan reported at , to state that in these circumstances, permission of Rent Controller is not required and provisions of C.P. & Berar Letting of Houses and Rent Control Order, 1949, are not applicable.
11. The first question to be decided is about the suspicious circumstances which according to appellants/ defendants surrounded the execution of Will Exh. 31. Those circumstances have already come on record. The perusal of judgment in the case of Jaswant Kaur v. Amrit Kaur (supra) shows that in para 10, the Hon'ble Apex Court has laid down certain guiding principles in respect of nature and standard of evidence required to prove a Will. The learned Senior Advocate has placed reliance upon fourth principle mentioned therein. There the Hon'ble Apex Court has stated that a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited. It has been observed by the Hon'ble Apex Court that presence of suspicious circumstances make the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicious before the document can be accepted as the last will of the testator.
12. In the facts before me, the mode and manner of proving the Will is not in dispute. Certain circumstances have been pointed out to contend that those constitute suspicious circumstances. The death of wife of Nathu on 4.4.1975 is not in dispute. It is also not in dispute that after said death or sometime thereafter Nathu started residing with Baban. The ownership of house in a field at place called Kalamna by Baban and stay of Nathu in that house is also not in dispute. Nathu had earlier executed a Will Exh. 33 in 1965 in favour of present appellants is also not in dispute. The fact that Baban deposed that after death of Yashoda, Nathu expressed desire for staying with him has come in his evidence. Plaint allegation in para 11 shows that agricultural land at Kalamna was purchased by Baban in 1976 and it therefore implies that after completion of last rites of Yashoda, Baban could not have carried Nathu to that house. However, such minor contradiction by itself cannot be held as sufficient to conclude that circumstances pointed out are suspicious circumstances. One Baburao Purohit, who has ascribed Will Exh. 31 has stated that he took Sub-Registrar to the house of Nathu on 15.5.1976. Witness Wasudeo Sone examined by plaintiff has stated that Sub-Registrar was brought to the field by uncle of Baban viz. , Mukund Wasudeo Pokle - defendant No. 4 and one Satawane. However, who brought Sub-Registrar to field or house therein for the purpose of registration of Will of Nathu is again not of much importance. The learned Senior Advocate is right when he contends that in entire evidence of plaintiff, this is the only role ascribed to Mukund and hence lower appellate Court is not justified when it observes that leading role, if any in execution of Will, was played not by Baban but by Mukund. But that by itself again is not fatal to the application of mind by lower appellate Court. The lower appellate Court has considered the age of Nathu and other circumstances and has found that those facts placed before it were not material and convincing. When Nathu was staying with Baban he was old aged man, he was bound to depend upon somebody for calling stamp paper, for calling scribe and even for getting Sub-Registrar to register the Will-deed. It is to be noticed that scribe Baburao, who prepared Will Exh. 31 had also scribed earlier Will at Exh. 33 in favour of present appellants.
13. There is no cross examination of any witness to show feeble mind of Nathu or his incapacity in any way to understand the things. It is also not pointed out that Nathu was not available to anybody after he was shifted to the house at Kalamna by Baban. There is no evidence on record to hold that Nathu was kept in house at Kalamna by Baban against his wishes. The Will was executed on 29.4.1976, it has been registered on 15.5.1976 and Nathu has expired on 23.12.1976. The appellants could not place on record evidence to show that during all this period, Nathu was not allowed to meet anybody. In absence of such evidence, I find that Nathu could have made complaint to anybody, if Will was obtained from him against his wish or desire. It is also not the case of appellants that Nathu was unsound & could not understand what he did. The circumstances pointed out by the learned Counsel for the appellants, therefore, do not constitute suspicious circumstances at all.
14. The judgment of the Hon'ble Apex Court in Malkani v. Jamadar, (supra) relied upon by the respondents shows that the inference about any undue influence on the basis of such circumstances can be drawn if facts justified it. It has been observed that taking active part by propounder in execution of Will is not an indication of any suspicious circumstance in all cases. The facts of said case in para 3 reveal that only circumstance brought on record was that beneficiary had taken active part in execution of Will. However, the Hon'ble Apex Court noticed that the daughter of testatrix had made a report to Tahsildar about abduction of her mother and about possible procuring of execution of conveyance from her. She then instituted a Civil Suit for declaration of her title against the mother. Mother then executed the will in favour of defendants and thereafter she came and started residing with plaintiff. All these facts have been interpreted to hold that there was no suspicious circumstance on account of prominent part played by the defendants in execution of Will by said mother. It is, therefore, apparent that the inference to be drawn from such circumstance is basically a question of fact. I, therefore, find that none of the circumstances constituted any suspicious circumstance in the matter. The learned appellate Court has considered this aspect and has found that only active role, if any in the actual process of execution of Will, is played by Mukund. Question No. 1, therefore, needs to be answered in the negative.
15. Coming to the question of protection of C.P. & Berar Letting of Houses and Rent Control Order, 1949, to the present appellants, it is apparent that during the pendency of appeal, provisions of Rent Control Order have been amended and the benefit of said amendment is available to the tenants and licensees against whom decree for eviction has been passed and appeals are pending. The respondents have not disputed this legal position. However, contention of respondents is that the appellants defendants have never claimed themselves to be tenants or contractual licensees. The judgment of this Court in the case of Lalabi v. Dhelullakhan (supra) holds that if licensee was not paying rent i.e. if he was not contractual licensee, provisions of C.P. and Berar Letting of Houses and Rent Control Order, 1949, are not applicable. It also observes that when the suit is for eviction of tenant who renounced title of landlord, permission of Rent Controller is not required. The learned Senior Advocate has invited attention to the judgment of Division Bench of this Court in the case of Ashwinikumar v. Gangadhar (supra) , wherein provisions of Section 111(g) of Transfer of Property Act and C.P. and Berar Letting of Houses and Rent Control Order, 1949, are considered. It has been held that when lessee renounces his character as such by setting up title in third person, permission of Rent Controller is not necessary and suit for ejectment after giving notice of forfeiture of tenancy is maintainable. In fact by placing reliance upon unreported judgment of this Court in Second Appeal No. 268 of 1963, it has been contended that the provisions of forfeiture are not applicable to licensee and as such there is no forfeiture and licence does not stand revoked automatically. This Court, in unreported judgment has relied upon the judgment of Madras High Court in the case of Punnamma v. Venkata Subba Rao reported at , in the matter. The perusal of unreported judgment as also the judgment of Madras High Court does not show whether the licensee mentioned therein were contractual or otherwise. The facts of present case show that before institution of present suit, the respondents -plaintiffs had filed Small Cause Suit No. 99 of 1980 and in that suit the present appellants took a stand that they were neither licensee nor tenants in the suit premises. They claimed right of ownership over the suit property through Will dated 16.12.1965. Thereafter the respondents withdrawn that suit and filed Special Civil Suit No. 221 of 1983 i.e. the present suit. In present suit, they stated that Nathu allowed defendant No. 4 and defendant No. 1 to occupy certain portion of suit property and defendant No. 1. Sadashiv (present appellant No. 1) used to pay Rs.15/-per month as licence fee. They further pointed out that defendant No. 1 obtained Will from Nathu in December 1965 and started claiming ownership. Thereafter plaintiffs have described death of Yashodabai and execution of Will by Nathu in their favour, filing of Small Cause Suit No. 99 of 1980 and claiming of ownership by the appellants in themselves by filing written statement in that suit. They have pointed out that suit was, therefore, withdrawn with liberty on 14.12.1983. They have stated that after death of Nathu, they terminated licence of the appellants as they became owners by virtue of Will dated 29.4.1976 and had called upon the appellants to vacate the suit premises. In their written statement, the present appellants stated that they were not paying any licence fee to Nathu and house was constructed in 1953 with funds of appellant No. 1 only but it was kept in the name of Nathu, who was real uncle. They contended that Nathu has not executed any Will in favour of present plaintiffs in 1976. They alleged that he was carried away from suit property one day before his death in semi conscious state without his consent. In para 21, they again asserted that they were never licensee, they occupied the house as owners thereof. This is reiterated by them in paras 23 and 25. Again in para 28 while giving details of their specific pleas, same plea has been reiterated. It is stated in para 30 that they are in actual physical possession of suit premises since and after 1953 as owners.
16. The trial Court was not called upon to decide the question of status of present appellants as to whether they were licensee or not. The trial Court delivered the judgment on 29.3.1985 and thereafter in 1985 itself Regular Civil Appeal was filed by present appellants. Said appeal came to be decided on 19.9.1991. It is, therefore, obvious that the appellants thought it better to go back on their stand and to raise plea in alternative about their being licensee after 1989 amendment to Rent Control Order. In view of stand taken by them in written statement specifically, it is clear that the plaintiffs were required to file a suit on the basis of their title against the appellants who were also claiming title to suit property. The nature of plaint clearly reveals that it was a suit instituted on the basis of title derived through Will Exh. 31. In such a suit when present appellants did not plead at any point of time that they were either tenants or licensees, the question of framing any issue or any adjudication in that respect never arose. In fact when a suit was filed before Small Causes Court treating them as tenants, they did not accept that status and claimed ownership. These appellants also claimed title to the property on the basis of will Exh. 33 & hence trial court was required to find out which one out of Exh. 31 & 33 was legal & valid.
17. In Subba Rao v. Jagannadha Rao (supra), the Hon'ble Apex Court has held that there must be a plea of estoppel by conduct and said observation is relied upon to contend that here the respondents/ plaintiffs never took a plea that by their conduct the present appellants are estopped from raising plea of licence. The facts in said case before the Hon'ble Apex Court reveal that there was some compromise between the respondents and appellants and respondents also therefore reduced the amounts. The Hon'ble Apex Court has noticed that compromise decree was not a decision by the Court and therefore Section 11 of Civil Procedure Code was not applicable. The respondents wanted to raise the issue over again because of new rights conferred upon them by amendment to Section 19 of Madras Agriculturist Relief Act, 1938. The rights according to the respondents also permitted reopening of all decrees which had not become final or which had not been fully executed. The Hon'ble Apex Court in this background noticed that the respondents were entitled to take advantage of the amendment of the law unless the law itself barred them. It further found that compromise decree might have created an estoppel by conduct between the parties but the appellants before it were in an unfortunate position because they did not plead this estoppel at any time. It is, therefore, obvious that opportunity to plead estoppel was open to the appellants and they did not plead it. The provisions of Amended Act, the compromise decree and effort of respondent there to reopen the issue gave opportunity to the appellants to plead estoppel because of compromise decree and that was not utilised by them. In facts before me, as present appellants never took any plea in alternative also about their status as licensees, there was no question of any such plea being raised in defence by present respondents. In view of clear defence of appellants before the Small Causes Court and even before lower Court, there was no reason for present respondents to anticipate such plea in alternate.
18. The facts in other ruling cited by Shri Bhangde, Senior Advocate in S. Venkappa v. Rangu, (supra) are again different. The pleading of plaintiff there was of absolute and clear on ownership of Shivanna and the appellant before the Hon'ble Apex Court, defendant in trial Court pleaded that business always belonged to him as owner. There was thus no plea that business of Purshottam Restaurant was done benami by defendant Purshottam for Shivanna and the Hon'ble Apex Court noticed that parties did not join issue in question that business of restaurant was Benami. In that background the Hon'ble Apex Court observed that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which has to be found. It, therefore, allowed the appeal of defendant. It is, therefore, apparent that in present case when appellants did not raise plea of any licence in alternative, either before trial Court or before lower appellate Court, such an issue cannot be looked into for the first time in Second Appeal as it would be deciding the case on entirely new issue.
19. In A.V.G.P. Chettiar v. T. Palanisamy Gounder, (supra) relied upon by the appellants, the perusal of para 43 again shows that the Hon'ble Apex Court found that reasoning of High Court was far removed from the pleadings of the respondent. The respondent there had claimed that one Gowthaman was the absolute owner of suit property and respondent therefore could not have set up a different case and taken shelter behind the definition of landlord in Tamil Nandu Buildings (Lease and Rent Control) Act, 1960. The Hon'ble Apex Court observed that the definition was an enabling provision. The Hon'ble Apex Court has held that decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Both these rulings have, therefore, do not advance the case of these appellants in the present facts.
20. It was never the case of the appellants that they or Sadashiv were licensees or tenants of Nathu or the respondents. Therefore, it is not a case of forfeiture of lease under Section 111(g) of the Transfer of Property Act. If it is not a case of forfeiture, there is no question of any notice under Section 111(g) of the Transfer of Property Act, being issued by the respondent. This contention is therefore, rejected. Once it is held that the present appellants are not licensees and suit filed against them was on the basis of their title by present respondents and to repeal the title claimed in themselves by present appellants, the other questions sought to be raised like forfeiture of tenancy or application of principle of forfeiture to licensees like appellants and absence of notice after denial of title of present appellants, do not arise for consideration at all. Had appellants accepted their initial induction in suit premises by Nathu as licensees or tenants, different considerations would have weighed. They have not raised any such defence in alternative to contend that suit was bad as no notice of forfeiture was served on them. But here the suit was between two hostile persons claiming ownership in themselves and hence I find that the effort of appellants to obtain benefit of provisions of Rent Control Order for themselves cannot be permitted. Similarly, there was no reason or occasion to again terminate the licence of present appellants after withdrawal of earlier suit as appellants were claiming that they were neither licensee nor tenants but were owners. Question No. 2, therefore, along with Question No. 5 needs to be answered against the appellants.
21. The last question is about the nature of property. The appellants have contended that it was ancestral property of Nathu and in support, they have relied upon the admission of Baban in his evidence. It is no doubt true that Baban-plaintiff. s witness has deposed that suit property was an ancestral property of Nathu. However, he has also stated in cross examination that there was partition in writing between Pancham and Narayan in 1925. He stated that he has not produced the document of partition on record. He further stated that in partition, one house fell to share of Narayanrao. Not filing this document is of no consequence as that was not an issue in dispute. Witness No. 1 for present appellants viz. Madan has stated that in a Will Exh. 33 executed by Nathu in their favour, it was mentioned that suit house was Nathu's self acquired property. The appellate Court has refused to believe this witness about 1976 instance because of his age 14 to 15 years at that time. The learned Senior Advocate has argued that Will Exh. 33 is executed in 1965 and this witness was only five years old at that time and therefore, by same logic, this admission also cannot be relied upon. It is to be noticed that Will Exh. 33 has been held to be not proved by both Courts and said finding has become final. But then it is important to note that Madan has not spoken about the position prevailing in 1965. He has only admitted the narration appearing as a statement of fact in Will Exh. 33. Madan has also stated in para 8 of his cross examination that suit house was owned by Nathu and Nathu had invited his father to live therein. DW-3. Nathuji Tingle examined by defendants -present appellants has stated in his examination-in-chief that prior to his death, Nathu used to live in his own house with Sadashiv. He further stated in his cross examination that old house stood in the name of Nathuji and Sadashiv reconstructed that suit in 1954-55. The appellate Court has considered all this evidence in para 15 and I do not find any perversity therein. Moreover, if the appellants wanted to contend that house was ancestral property of Nathu and therefore Nathu could not have executed any Will in relation thereto or Will, if any, was valid only to the extent of share of Nathu in such joint property, such a plea ought to have been taken by them in their written statement. There is absolutely no whisper about this aspect by the appellants. It is apparent that property was separate property of Nathu which he was entitled to bequeath & appellants do not have any share in it by birth. Questions No. 3 & 4, therefore, also need to be answered against the present appellants.
22. The discussion above shows an attempt on the part of the appellants to mould their defence as per evidence without adopting any definite stand beforehand. I find that improvements in their case being so made ought to have been included in their basic pleadings by the appellants.
In this respect in AIR 1966 S.C. 1861 Bhagat Singh v. Jaswant Singh", Hon.ble Apex Court observes in para:
9. The case more to the point is the Privy Council case relied on by the Courts below, viz. , where it was held that "where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward". Appellants here denied not only derivative title of respondents but also title of Nathu and denied their status even as licensees of Nathu. No plea of license from Nathu was raised in the alternative also. Similarly no plea of property being ancestral was taken in written statement & in will Exh. 33 allegedly executed by very same Nathu in their favour suit property is mentioned as self acquired property of Nathu. It is difficult to uphold contentions of present appellants on questions 1 to 5 in the matter.
23. I, therefore, do not find any substance in Second Appeal. The same is accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.
At this stage, Shri Joshi, learned Counsel requests for protection of possession of appellants for a period of eight weeks to enable the appellants to challenge the order further.
Shri Samudra, learned Counsel for the respondents strongly opposes the request and he contends that respondents No. 1 to 3 are fighting for possession since last more than 25 years.
However considering the fact that the interim order was operating in favour of the appellants till today, I am inclined to grant time of six weeks to the appellants to obtain appropriate further orders from the Hon'ble Apex Court in the matter.
In the circumstances, interim order protecting the possession of the appellants shall continue to operate for a period of six weeks from today and shall cease to operate thereafter automatically. Certified copy expedited.