Bombay High Court
Nandmukar Raghunath Salvi vs Balsheth Bhagsheh Gandhi (Since ... on 5 April, 2021
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
Rane 1/6 SA-95-2016
5.4.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 95 OF 2016
ALONGWITH
INTERIM APPLICATION NO. 679 OF 2019
Nandkumar Raghunath Salvi .....Appellant
(Orig.Defendant)
V/s.
Balsheth Bhagsheth Gandhi
(Since deceased through heirs)
and Ors. ....Respondents
****
Mr. Saurabh M. Railkar, Advocate for the appellant.
Mr. Bhushan Walimbe, Advocate for the respondent.
CORAM : SANDEEP K. SHINDE, J.
05th April, 2021.
P.C. :
1. Appeal was heard at the admission stage and closed for orders.
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Rane 2/6 SA-95-2016
5.4.2021
2. The appellant is the original defendant in a suit for possession instituted by predecessor-in-title of the respondents, Late Balasheth B. Gandhi. The suit was decreed by the trial Court, whereby the defendant was directed to handover possession of the suit property to the plaintiffs. The first Appellate Court, confirmed the decree of the trial Court, vide judgment dated 15th July, 2015.
Feeling aggrieved by these concurrent findings and decree of possession, the defendant has preferred this Second Appeal. On 6th August, 2019, the Appeal was dismissed for not removing office objections; whereafter on 25 th February, 2020, the Appeal was restored to file.
3. The Appeal was heard and posted for 'passing orders', but when I have gone through the impugned judgments minutely, I found certain issues involved in the Appeal were not brought to the notice of this Court by the learned Counsel for the parties.
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Rane 3/6 SA-95-2016
5.4.2021
4. Herein, the appellant-defendant had raised multiple defences. One of the defences was that, the plaintiff had granted irrevocable license to the predecessor- in-title of the defendants who then, acted upon the licence and executed a work of permanent character and incurred expenses in the execution. Next, alternative defence was, the defendant was inducted as a tenant in the suit property and the last defence was that, the original plaintiff had executed, agreement to sell dated 28th June, 1954 in favour of the predecessor-in-title of the defendant, one Mahadeo Kumbhar and agreed to sell the suit property, to him.
5. In so far as the agreement to sell dated 28th June, 1954 is concerned, the defendant had filed a counter claim and sought specific performance of agreement dated 28th June, 1954. In so far as the defendant's claim that, his predecessor-in-title was a tenant in the suit property is concerned, both the Courts relied on the tenancy ::: Uploaded on - 10/05/2021 ::: Downloaded on - 05/09/2021 08:08:07 ::: Rane 4/6 SA-95-2016 5.4.2021 proceedings instituted by the predecessor-in-title of the defendant and the orders passed thereon. Relying on these orders, both the Courts rejected this defence.
6. In so far as counter-claim of the defendant for specific performance of agreement dated 28th June, 1954 is concerned, both the Courts found that, defendant could not prove the 'agreement for sale' for more than one reason. As such, the counter-claim was also rejected.
7. In consideration of the facts of the case, the Court below have thus held, that "Where the plaintiffs sues as a proprietor to recover the land and the defendant sets up a tenancy right under the plaintiff, in such a case, the plaintiff, is not to prove anything, because the admitted paramount title carries with it, a presumption that plaintiff is entitled to hold and possess the land and therefore the person seeking to defeat that right and claim to hold under ::: Uploaded on - 10/05/2021 ::: Downloaded on - 05/09/2021 08:08:07 ::: Rane 5/6 SA-95-2016 5.4.2021 him, must establish the right asserted by him". Thus, both the Courts concurrently held, there was no necessity of the plaintiff to prove his title in the suit land.
8. In so far as, defence of 'irrevocable license' is concerned, in my view, it is necessary to examine this defence in view of Section 60 of the Easement Act, after verifying the pleadings and the evidence. Yet, one more aspect is required to be examined is, whether Mahadev Gopal Deorukhkar @ Kumbhar was ancestor of the defendant. It is so necessary, because the Courts have held, the defendant could not prove his relation with Mahadev Gopal Deorukhkar @ Kumbhar who was the licensee in the suit land and a person in whose favour agreement to sell dated 28th June, 1954 was allegedly executed by the defendants.
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Rane 6/6 SA-95-2016
5.4.2021
9. In my view, above issues cannot be decided unless, record is called from the trial Court.
10. Call for records and proceedings from the trial Court.
11. List the Appeal on 26th July, 2021.
12. Parties are put to notice that Appeal shall be heard finally on 26th July, 2021 or thereafter.
13. Mr. Walimbe waives service of notice on behalf of the respondents.
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