Bombay High Court
Himmatrao Marotrao Dhobale vs Arun Gulabrao Jichkar on 24 September, 2014
Author: Z.A. Haq
Bench: Z.A. Haq
1 sa313.95
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.313/1995
1. Himmatrao Marotrao Dhobale.
2. Umesh Marotrao Dhobale.
2(i). Surekha Wd/o Umeshrao Dhobale,
aged about Major, Occu. Nil.
2(ii) Pragati Wd/o Sharadrao Khande,
aged about 45 Yrs., Occu. Service.
2(iii) Sau. Kavita W/o Dnyaneshwar Tasre,
aged about 40 Yrs.,Occu. Nil.
R/o Gauriganesh Apartment,
Jaidurga Layout, No.3/4,
Manishnagar, Nagpur.
2(iv) Parag S/o Umeshrao Dhoble,
aged 36 Yrs., Occu. Business.
Appellant Nos.2(i), 2(ii) and 2(iv)
are R/o Balaji Society, Shire Layout,
Yeotmal, Distt. Yeotmal. ..Appellants.
..Versus..
Arun Gulabrao Jichkar. ..Respondent.
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2 sa313.95
AND CROSS OBJECTION STAMP NO.5779/1996
1. Himmatrao Marotrao Dhobale,
aged about 50 Yrs., Teacher,
R/o Warud, Distt. Amravati
and R/o Khar-Talegaon,
Taluka Bhatkuli, Distt. Amravati.
2. Umesh Marotrao Dhobale,
aged 43 Yrs., Occu. Junior Engineer,
P.W.D. Office at Yavatmal,
Taluka & Distt. Yavatmal.
2(i) Surekha Wd/o Umeshrao Dhobale,
aged about Major, Occu. Nil.
2(ii) Pragati Wd/o Sharadrao Khande,
aged about 45 Yrs., Occu. Service.
2(iii) Sau. Kavita W/o Dnyaneshwar Tasre,
aged about 40 Yrs.,Occu. Nil.
R/o Gauriganesh Apartment,
Jaidurga Layout, No.3/4,
Manishnagar, Nagpur.
2(iv) Parag S/o Umeshrao Dhoble,
aged 36 Yrs., Occu. Business.
Appellant Nos.2(i), 2(ii) and 2(iv)
are R/o Balaji Society, Shire Layout,
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3 sa313.95
Yeotmal, Distt. Yeotmal. ..Appellants.
..Versus..
Shri Arun Gulabrao Jichkar,
aged about 40 Yrs., Occu. Teacher,
R/o Radhanagar, Amravati,
Tq. & Distt. Amravati. ..Respondent.
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Shri U.S. Dastane & Shri A.R. Wagh, Advocates for the appellant.
Shri J.J. Chandurkar, Advocate for the respondent.
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CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT : 28.8.2014.
DATE OF PRONOUNCING THE JUDGMENT : 24.9.2014.
JUDGMENT
1. Heard Shri U.S. Dastane and Shri A.R. Wagh, the learned advocates for the appellants and Shri J.J. Chandurkar, the learned advocate for the respondent.
2. The appellants take exception to the judgment and decree passed by the learned Joint District Judge, Amravati in Regular Civil ::: Downloaded on - 26/09/2014 23:49:07 ::: 4 sa313.95 th Appeal No.104/1989 on 20 February, 1995 by which the appeal is allowed, the judgment and decree passed by the trial Court is set aside and it is held that the appellants are not entitled for the possession of the suit plot but are entitled for the compensation.
3. Shri Marotrao Dhobale, the father of original plaintiffs, was the owner of the suit plot. The original defendant is the husband of cousin sister of the original plaintiffs. According to the original plaintiffs they constructed the house on the suit plot and when the construction was complete, the defendant approached them and requested them to permit him to reside in the suit house for sometime till the completion of the construction of the house of defendant. The case of the plaintiffs is that in view of the close relationship, they permitted the defendant to occupy the house with the understanding that as soon as the house of defendant would be ready, he would vacate the house constructed on the suit plot ::: Downloaded on - 26/09/2014 23:49:07 ::: 5 sa313.95 and hand over the possession of it to the plaintiffs. The plaintiffs stated that even after the completion of the house of the defendant, the defendant did not vacate the house constructed on the suit plot in spite of repeated rd requests by the plaintiffs and therefore, the plaintiffs issued notice dated 3 th September, 1984 terminating the license of the defendant from 25 September, 1984 and requiring the defendant to vacate the suit plot and hand over the possession of the suit plot to the plaintiffs. The plaintiffs also sought damages.
4. The case of the defendant is that after the death of Shri Marotrao Dhobale in January 1981, the plaintiffs were not interested in the suit plot and when the defendant got knowledge of this fact he approached the plaintiffs and offered to purchase the plot and the plaintiffs agreed to sell the plot to the defendant for Rs.8,800/-. According to the defendant the sale deed was to be executed as per the convenience of the parties.
::: Downloaded on - 26/09/2014 23:49:07 :::6 sa313.95 The defendant stated that he approached the plaintiffs with the amount and requested them to execute the sale deed, however, they avoided. The defendant has stated that as he wanted to construct the house he approached the plaintiffs to execute the sale deed, however, they avoided to execute the sale deed but permitted the defendant to construct the house on the suit plot. The defendant stated that he constructed the house on the suit plot from his funds and the plaintiffs are estopped from claiming the ownership over the suit plot and the house constructed on it and from seeking possession.
5. The learned trial Judge proceeded with the trial and by the th judgment dated 14 February, 1989 found that the plaintiffs proved that the defendant was occupying and residing in the house as a licensee under the permission of the plaintiffs and granted decree in favour of the plaintiffs for possession and enquiry into mesne profits.
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6. The defendant being aggrieved by the judgment and decree passed by the trial Court had filed the appeal before the District Court.
The learned District Judge concluded that the defendant has proved that he constructed the house over the suit plot with the permission of the plaintiffs. The learned District Judge allowed the appeal in the terms as stated above. The original plaintiffs being aggrieved by the judgment and decree passed by the learned District Judge have filed this appeal.
7. The learned advocate for the appellants has submitted that the findings given by the District Court that the respondent is a licensee over the plot and as he has undertaken the construction of permanent character by incurring expenses on it, the license has become irrevocable as contemplated by the provisions of Section 60(b) of the Indian Easements Act, 1882, is unsustainable. It is submitted that the case of the respondent is that he has undertaken the construction on the plot and he is in ::: Downloaded on - 26/09/2014 23:49:07 ::: 8 sa313.95 occupation of the suit house and the plot pursuant to the arrangement that the respondent would purchase another plot for the appellants in lieu of the plot on which the respondent has constructed the house. It is submitted that as the respondent has denied the claim made by the appellants that the respondent is a licensee of the original plaintiffs, the respondent would not be entitled for the protection under Section 60(b) of the Indian Easements Act, 1882. In support of this submission, the learned advocate has relied on the judgment given by the Hon'ble Supreme Court in the case of Shankar Gopinath Apte V/s. Gangabai Hariharrao Patwardhan reported at (1976) 4 SCC 122 and the judgment given by this Court in the case of Ramesh s/o Raghunath and others V/s. Pandurangrao Ratnalikar and others reported at 2006(4) Mh.L.J.83. It is submitted that the judgment passed by the District Court has to be set aside and the judgment and decree passed by the trial Court is required to be restored.
The learned advocate has submitted that the District Court has given ::: Downloaded on - 26/09/2014 23:49:07 ::: 9 sa313.95 findings that the construction of the house has been undertaken with the funds of the respondent but the findings are not in consonance with the evidence on the record. In the alternative, it is submitted that if the findings of the District Court in this regards are found to be proper, the respondent can claim for the amount in appropriate proceedings.
8. Shri J.J. Chandurkar, the learned advocate has submitted that though the respondent denied his status as a licensee and claimed that he was in possession on the basis of an arrangement in view of which the respondent was required to purchase another plot for the appellants in lieu of the plot which is the subject matter of the proceedings, the subordinate Courts have concurrently given findings that the respondent is the licensee. It is submitted that in view of the findings given by the subordinate Courts that the respondent is the licensee and the learned District Judge having recorded the findings of fact that the house is ::: Downloaded on - 26/09/2014 23:49:07 ::: 10 sa313.95 constructed by utilizing the funds of the respondent, the findings of the learned District Judge that the license in favour of the respondent is irrevocable as contemplated by Section 60(b) of the Indian Easements Act, 1882, is proper. Shri J.J. Chandurkar, the learned advocate has submitted that the judgment given in the case of Shankar Gopinath Apte V/s.
Gangabai Hariharrao Patwardhan (cited supra), relied upon by the learned advocate for the appellants is distinguishable and will not apply to the facts of the present case. The learned advocate for the respondent has submitted that in the case of Shankar Gopinath Apte V/s. Gangabai Hariharrao Patwardhan (cited supra) there was no adjudication by the Court that the defendant in that case was a licensee. The learned advocate has further submitted that the arguments on behalf of the appellants that there are no pleadings by the respondent that he is a licensee does not disentitle the respondent from relying on the provisions of Section 60(b) of the Indian Easements Act, 1882 as it is the case of the ::: Downloaded on - 26/09/2014 23:49:07 ::: 11 sa313.95 appellants themselves that the respondent is the licensee and the subordinate Courts have recorded the findings to that effect. Shri J.J. Chandurkar, the learned advocate has submitted that the requirement of pleadings on a particular point are necessary to enable the adversary party to know the case which it has to meet and pedantic approach should not be adopted to frustrate the process of justice on the basis of technical objections.
Shri J.J. Chandurkar, the learned advocate has further submitted that the appellants having themselves pleaded that the respondent is the licensee, now they cannot turn around and say that the respondent has failed to plead that he is a licensee and is not entitled for the protection of Section 60(b) of the Indian Easements Act, 1882. In support of his submissions Shri J.J. Chandurkar, the learned advocate for the respondent, has placed reliance on the judgment given in the case of Ram Sarup Gupta (dead) by L.Rs. V/s. Bishun Narain Inter College and ::: Downloaded on - 26/09/2014 23:49:07 ::: 12 sa313.95 others reported at AIR 1987 SC 1242.
9. This Court while admitting the appeal has formulated the following substantial questions of law :-
Whether the learned First Appellate Court erred in not finding that the respondent had never pleaded or proved the case of 'irrevocable license' contemplated by Section 60 of the Indian Easements Act and whether in the absence of the same, the Appellate Court could for the first time invoke Section 60 of the Act ?
Whether the learned First Appellate Court erred in not finding that burden of proof to make out a case of irrevocable license is always on the person who alleges it and in the instant case the respondent had denied to be a licensee but had set up ownership ?
10. The learned trial Judge has framed the relevant issue no.5 as follows :-
"(5) Whether plaintiff proves that the defendant is ::: Downloaded on - 26/09/2014 23:49:07 ::: 13 sa313.95 occupying and residing in the house in dispute as licensee under permission of the plaintiffs ?"
The learned trial Judge has answered the issue in the affirmative concluding that the respondent is occupying the house constructed on the suit plot as licensee.
The learned District Judge has not dealt with the issue of licensee, however, has framed the point for determination as follows :-
(2) Does the defendant prove that he had constructed the suit house over the plot of the plaintiffs with their permission ?"
The learned District Judge has answered this issue in the affirmative concluding that the defendant had constructed the house over the suit plot with the permission of the appellants/plaintiffs.
The appellants have not challenged the findings of the Subordinate Courts on the above points. It is the case of the appellants that the respondent was occupying the suit plot and the house was ::: Downloaded on - 26/09/2014 23:49:07 ::: 14 sa313.95 constructed over it by the respondent as the licensee.
11. The learned District Judge has extensively dealt with the evidence on the point as to who incurred the expenses for the construction of the house on the suit plot and after considering the pleadings, the documents and the evidence on the record, the learned District Judge has recorded the findings that the respondent has constructed the house, which is a construction of permanent character, by incurring expenses on the construction. The appellants have not been able to controvert the findings of fact recorded by the learned District Judge on this point. The learned advocate for the appellants has not been able to show that the findings of fact recorded by the learned District Judge on this point are perverse.
12. In view of the conclusions of the subordinate Courts that the ::: Downloaded on - 26/09/2014 23:49:07 ::: 15 sa313.95 respondent occupied the house constructed on the suit plot as the licensee and the findings of fact recorded by the learned District Judge that the construction undertaken on the suit plot is of permanent character and the respondent has incurred expenses for the construction and considering the proposition of law laid down by the Hon'ble Supreme Court in the case of Ram Sarup Gupta (dead) by L.Rs. V/s. Bishun Narain Inter College and others (cited supra) it has to be held that the respondent is entitled for the protection under Section 60(b) of the Indian Easements Act, 1882.
13. In the judgment given in the case of Ram Sarup Gupta (dead) by L.Rs. V/s. Bishun Narain Inter College and others (cited supra) in paragraphs 6 and 15, the Hon'ble Supreme Court has recorded as follows :-
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by S. 60(b) of the Act and, if ::: Downloaded on - 26/09/2014 23:49:07 ::: 16 sa313.95 so, is there any evidence on record to support that plea.
It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material fact should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v.::: Downloaded on - 26/09/2014 23:49:07 :::
17 sa313.95 Shri Chandramaul, (1966) 2 SCR 286 : (AIR 1966 SC
735) a Constitution Bench of this Court considering this question observed (at p. 738 of AIR) :
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ?
If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."::: Downloaded on - 26/09/2014 23:49:07 :::
18 sa313.95
15. In view of the above discussion we are of the opinion that the pleadings, evidence and the circumstances available on record have fully established that Raja Ram Kumar Bhargava had granted license to the school in respect of the building and the land attached to it for the purpose of imparting education and the school in furtherance of that purpose constructed additional buildings and it further incurred expenses in carrying out modification and extensive repairs in the existing buildings during the period, Raja Ram Kumar Bhargava continued to be the President of the Managing Committee of the school. He never raised any objection to it and there is nothing on record to show that licenser had retained right to revoke the license. If person allows another to build on his land in the furtherance of the purpose for which he had granted license, subject to any agreement to the contrary cannot turn round, later on, to revoke the license. This principle is codified in S. 60(b) of the Act. Moreover, conduct of the parties has been such that equity will presume the existence of a condition of the license by plain implication to show that license was perpetual and irrevocable. That being so, Raja Ram Kumar Bhargava could not revoke the license or evict the school and the appellant being transferee from him could not and did not acquire any better right. The appellant, therefore, has no right to revoke the license or to evict the school, so long the school continues to carry on the purpose for which the license was granted. The trial Court and the High Court have therefore rightly dismissed the suit."
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14. The appellants themselves pleaded that the respondent is a licensee. On the basis of the pleadings of the respective parties, the learned trial Judge framed the specific issue on this point and answered it in the affirmative. Applying the proposition of law as laid down by the Hon'ble Supreme Court in the case of Ram Sarup Gupta (dead) by L.Rs.
V/s. Bishun Narain Inter College and others (cited supra), it has to be held that the appellants had knowledge about the issues which fell for consideration and they proceeded to trial on those issues by producing evidence and succeeded in proving that the respondent is the licensee, the pedantic approach cannot be adopted to deny the benefit of the provisions of Section 60(b) of the Indian Easements Act, 1882 to the respondent on the ground that the respondent had denied that he is a licensee. The defence raised by the respondent cannot override the findings recorded by the subordinate Courts. Though the respondent denied that he occupied the house and the suit plot as a licensee, subordinate Courts have rejected ::: Downloaded on - 26/09/2014 23:49:07 ::: 20 sa313.95 the defence raised by the respondent and has recorded the finding that the respondent occupied the house and the suit plot as a licensee and the appellants have not been able to controvert this finding.
15. The judgments relied upon by the appellants are distinguishable. As rightly pointed out by the learned advocate for the respondent, in the case of Shankar Gopinath Apte V/s. Gangabai Hariharrao Patwardhan (cited supra) there had been no finding that the defendant in that case was the licensee. The judgment given in the case of Ramesh s/o Raghunath and others V/s. Pandurangrao Ratnalikar and others (cited supra) is also distinguishable on facts and there had been no conclusive finding that the defendants in that case were licensees.
16. In view of the above, the substantial questions of law formulated by this Court are answered accordingly. The impugned ::: Downloaded on - 26/09/2014 23:49:07 ::: 21 sa313.95 judgment and decree does not require any interference. The appeal is dismissed. In the circumstances, the parties to bear their own costs.
CROSS OBJECTION STAMP NO.5779/1996
17. The respondent has filed cross objection under Order 41 Rule 26 of the Civil Procedure Code challenging that part of the decree by which the learned District Judge has directed the respondent to pay st Rs.28,160/- with interest at 12% per annum from 1 January, 1984 till the receipt of the amount by the original plaintiffs. In view of the findings given in the second appeal and the respondent having failed to point out any irregularity and illegality in the judgment passed by the learned District Judge, I do not see any reason to interfere with the directions given by the learned District Judge directing the respondent to pay the amount of st Rs.28,160/- with interest at the rate of 12% per annum from 1 January, 1984 till the amount is received by the original plaintiffs. The cross ::: Downloaded on - 26/09/2014 23:49:07 ::: 22 sa313.95 objection is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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