Judge should give finding on all issues

 It is true that when an preliminary issue is raised by either of the parties as to the jurisdiction to entertain and try the suit, such issue must be treated as preliminary issue to be decided in the suit according to law. Such issue could not be brushed aside so as to say 'do not survive' when evidence is led. Learned trial judge was clearly in legal error to leave the issue no. 1 as unanswered and issue no. 2 which was raised as to the jurisdiction of the court to entertain and to try the suit was surprisingly left undecided. In view of this situation, the learned trial Judge was bound to give full opportunity to the parties to adduce the evidence in the suit for just decision of the case and after recording entire evidence, as may be offered by the parties, to record and answer the finding as to the issues framed to decide the nature of the right of the plaintiff to possess the suit property and shall also record finding as to ownership of and legal right, title and interest claimed to the suit property. Since issues were framed in view of the procedure under Order 14 of Civil Procedure Code all issues framed be answered and decided. Order 14 Rule 2 reads thus:-

Court to pronounce judgment on all issues-

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

6. The procedure as above make it clear that the trial Judge would have no justification to avoid answering the issue or to leave the issue unanswered. The trial Judge has to meet all the issues in real controversy between the parties by a well reasoned Judgment.

 CIVIL APPELLATE JURISDICTION

IN THE  HIGH COURT OF JUDICATURE AT BOMBAY

FIRST APPEAL NO.1454 OF 2003

Bhuwaneshwar Rajkishore Tripathi

  versus

Nilkanth Nagar Co­op.Housing

Society, 

   

                       CORAM : A.P. BHANGALE,J

JUDGMENT PRONOUNCED : SEPTEMBER 26, 2013

 Citation: 2013(6)ALLMR305, 2013(6)MhLj640 

The   First Appeal No.1454 of 2003 is   against the 

judgment and order dated  15­07­2002 passed by the learned 

Judge,  City  Civil  Court, Greater Mumbai in short  cause  civil 

Suit   no.5813   of   1996   whereby   the   suit   was   dismissed.     The 

Petitioner  in  Writ Petition  no.2992 of  2011   have questioned the 

validity of the order dated 1st March 2011 passed by the Minister 

Co­operation   department   of   the   Government   of   Maharashtra   and 

prayed for to set it aside.  Both the proceedings are before this court 

pursuant administrative direction from Hon'ble The Chief Justice of 

this court.

The facts stated are:­ 

The     suit     was     instituted     by     the     Appellant     (Plaintiff) 

against   the   Neelkantha   Nagar   Co­operative   Housing   society 

Ltd.   for   the   declaration   that   the   defendant   society   have   no 

right,  title  and  interest  and  claim  over  the   suit  property  or 

the  structure  Room  no. 8  admeasuring  37.5 feet  x  10  feet  in  

chawl     no.   1,     situated     on     Land     City     Survey     no.   171   A, 

admeasuring     5143   Sq.   meters     being     carved     out     of     land 

S.No.20/1 admeasuring Acre 1.14 Gunthas, land Survey no.21/15 

admeasuring   24.25   Gunthas   and   land   S.N.22   admeasuring   Acre 

1.15 Gunthas and land S.No.46/35 admeasuring Gunthas 9 only all 

situated at village Kirol Taluka Kurla   was property purchased by 

Kashinath Janardan Sawant  for Rs 19606/­  document registered at 

S.No.887 of 1944 Jamshetji Kolbhi Manekshaw on 18.02.1944. 

The land owner Kashinath Janardan Sawant whose permanent 

address was shown as Bharat Glass works  at Mahul expired on 

30.10.1969, while his death was registered on 05.11.1969. The 

appellant   also   sought   injunction   that   the   defendant   be 

restrained  from    disturbing the  possession  of the  plaintiff in 

any manner.  The appellant claimed as tenant of the suit room. 

According   to   the   appellant,   the   defendant  society   is   not   the 

owner   though   it   claim   so.     The   appellant   pointed   out   that 

Tahasildar,   Kurla   (Mulund)   issued   notice   dated   03­12­2012 

addressed to Kashinath Janardan Sawant (dead person) to pay 

sum   of   Rs   12453/­   which   was   received   by   Talathi   under 

provisional   receipt   dated  27.12.2012  by   Cheque   no.  328012 

drawn   upon   State   Bank   of   Patiala.   While   appellant   want   to 

show   that   the   Municipal   corporation   of   greater   Mumbai 

(MCGM) has for the year 2013­2014 has  continued to assess 

property   in   the   name   of   dead   person   Late   Shri   Kashinath 

Janardan   Sawant  C/o.   B.  R  Tripathi  and  others  1/8  Sawant 

wadi,   Chirag   Nagar,   Ghatkopar   (West)   Mumbai,   400   086. 

Mentioning   property   account   no.   NX0609210160000   in   the 

name   of   Holder   OCC   OXFORD   WOODLAND   N   7368(2A) 

199/BA  L.B.S  Marg, A C Shed first  assessed on 01­07­1978. 

Who inherited entire real estate and personal property left by 

Late   Kashinath   Janardan   Sawant   after   his   demise   is   an 

The defendant claimed that they got title to the suit 

important issue to be solved and answered in this case.

land under the registered  deed of conveyance dated 25 th July 

1996     from   M/s.Bhaveshwar.     According   to   the   defendant 

upon change of ownership, they had sent  attornment notice to 

the   plaintiff   as   well.     It   is   case   of   the   defendants   that   one 

Lalitkumar Mamitlal Thakkar was owner of the entire property 

bearing   Survey   no.   20,   Hissa   no.   2(part)   and   22(part) 

171(part) and survey no. 171/1 to 26 total admeasuring about 

5972.48   square   Yards     situated   at   village   Kirol   (Ghatkopar) 

Taluka   Kurla,   District   Mumbai.   It   is   contended   by   the 

defendant that M/s.Bhaveshwar Developers had constructed a 

Building of the Neelkanth Co­op Housing Society Ltd. and it 

was sold to the respective flat purchasers. The flat purchasers 

formed   co­operative   Housing   Society   which   was   registered 

under   the   Co­operative   Societies   Act.   According   to   the 

Appellant   the   respondent   (ori.   Defendant)   M/s   Bhaveshwar 

Developers never claimed as owner of the suit property and 

never     owned   the   suit   property   and   the   society   of   the   flat 

purchasers   never   produced   any   Deed   of   conveyance   during 

pendency of the Suit in the Bombay City Civil court.It is thus 

contended by  the appellant that the respondent society is not 

the owner of the suit property.

The   trial   court   in   the   course   of   the   impugned 

Judgment referred to the documents Ex­1 collectively exhibited 

by consent.  The plaintiff appellant by his letter dated 21 May 

1995   had   sought   the   permission   for   repairs   to   the   suit 

premises.   The   letter   was   replied   on   22   May   1995   by   the 

Defendants and the permission was granted.  Ex. B is copy of 

the letter dated   delivered to the Defendants by the Plaintiff, 

requesting   the   defendant   to   provide   him   a   copy   of   the 

registered     conveyance   Deed   to   show   that   the   property   has 

been legally transferred to the Defendants.  Defendant by letter 

Ex. C,  informed the plaintiff that the Defendant became owner 

of the  property under the  Deed of Conveyance    executed in 

their   favour   by   the   Owner   Shri   L.M   Thakkar   and   the 

Bhaveshwar Developers. By document Ex. E the plaintiff had 

demanded   the   registered   conveyance   Deed   from   the 

Defendants. Ex. H is the document   addressed to the Plaintiff 

by the Sub­registrar of Assurances informing the plaintiff that 

the   document   No.   BBJ.   338   of   1996   was   pending   for   the 

Income   Tax   and   Urban   Land   Ceiling   queries   and   for 

determining the Market value. Thus the fact of conveyance  is 

in   evidence   .There   was   no   prayer   by   the   Plaintiff   for 

cancellation  of  the Sale  Deed or the  document  executed   in 

favour of the Defendants. Learned trial Judge also found that 

there   was   no   any   threat   to   the   possession   of   the   plaintiff­ 

Appellant. And therefore no discretionary relief of injunction 

was granted and the suit was dismissed . Learned  trial Judge 

framed Issues no 1 and 2 as under :­

Does the Defendants/ society prove that by Deed 

of   Conveyance     Dated   25­01­1996   the   society   has 

become   absolute   owner   in   respect   of   the   lot   of   land 

bearing     city   survey   No.   171/1(part),   171(part),   and 

171/1   to   26   of   Survey   No.   22,   Hissa   No.   1   (part), 

survey   No.   20   (part)   of   village   kirol   near   Ghatkopar, 

Mumbai including Room No. 8 admeasuring 37.5 feet 

x10   feet,   Chawl   no.   1,   Sawantwadi,   Chirag   Nagar, 

Ghatkopar   (west),   Mumbai­86   (the   suit   premises 

hereinafter) ? 

This issue was left “unanswered “ by the learned trial 

Judge,   while   second   issue   as   to   jurisdiction   of   the 

Bombay City Civil and Sessions Court to entertain and 

try   the   suit     was   curiously   answered   as   “Does   not 

survive.”

According   to   the   appellant,   the   Revision 

application   no.   772   of   2009   under   Section   154   of   the 

Maharashtra   Co­operative   Societies   Act     1960,   the   revision 

application   was   allowed   on   01­03­2011   by   the     Honorable 

Minister for co­operation Department of the State Government 

of   Maharashtra   and   he  was  pleased  to  cancel   the  order  of 

registration   of   Nilkanth   Nagar   Co­operative   Housing   Society 

passed on 12­03­1992   by the Deputy Registrar, Co­operative 

Societies and order dated 23­09­2009 passed by the  Divisional 

Joint Registrar, Co­operative Societies, Mumbai division. It was 

observed   that wrong, baseless information was furnished by 

M/s Bhaveshwar Developers regarding alleged  ownership and 

title   of   the     suit   property.   Official   assignee   was   appointed. 

That being so, it is submitted by the appellant that Nilkantha 

Nagar co­operative Society can no longer claim as  legal owner 

of the suit property to whom   plaintiff can attorn as Tenant. 

This order is subject of the Writ Petition in hand and  the order 

impugned   in   the   Petition,   needless   to   state   would   be   valid 

subject to the final decision of the  competent Civil court. Legal 

rights of the parties to the suit, claiming the suit property as 

canvassed in pleadings in the pending  civil suit are required to 

be determined by the Competent Civil Court only and not by 

the executive or revenue authority. 

It is true that when an preliminary issue is raised by 

either of the parties as to the jurisdiction to entertain and try 

the suit, such issue must be treated as preliminary issue to be 

decided in the suit according to law. Such issue could not be 

brushed aside so as  to say 'do not survive' when evidence is led. 

Learned trial judge was clearly in  legal error to leave the issue 

no 1  as unanswered and  issue no 2  which was raised as to the 

jurisdiction   of   the   court   to  entertain   and  to   try   the   suit  was 

surprisingly   left   undecided.     In   view   of   this   situation,   the 

learned trial Judge was bound to give   full opportunity to the 

parties to adduce the  evidence in the suit  for just decision of 

the case and after  recording  entire evidence, as may be offered 

by the parties,   to record   and   answer the   finding as to the 

issues framed  to decide the  nature of the  right of the plaintiff 

to possess the suit property  and shall also record finding as to 

ownership of  and  legal right ,title and interest claimed to the 

suit   property   .Since   issues   were   framed   in   view   of   the 

procedure under   Order 14 of Civil Procedure Code all issues 

framed be answered and decided.  Order 14 Rule 2 reads thus:­

Court to pronounce judgment on all issues­  

(1)   Notwithstanding   that   a   case   may   be  

disposed of on a preliminary issue, the  

Court shall subject to the provisions of 

sub­rule (2), pronounce judgment on all  

issues. 

(2) Where issues both of law and of fact 

arise in the same suit, and the Court is 

of   opinion   that   the   case   or   any   part  

thereof may be disposed of on an issue of 

law only, it may try that issue first if 

that issue relates to­   

(a) the jurisdiction of the Court, or  

(b) a bar to the suit created by any law 

for the time being in force, and for that 

purpose may, if it thinks fit, postpone  

the settlement of the other issues until 

after that issue has been determined, and 

may deal with the suit in accordance with 

the decision on that issue.

The  procedure as above make it clear that the trial 

Judge would have no justification to avoid answering the issue 

or to  leave the issue unanswered. The trial Judge has to meet 

all the issues in real controversy between the parties by a well 

reasoned Judgment. Learned trial judge have failed to abide by 

the   the   mandate   of  the  provision.    Respondent  Co­operative 

society had questioned the order dated 1 st March 2011 passed 

by the Minister, co­operation department of the Government of 

Maharashtra.  This Court by order dated 27th  June 2011 was 

pleased to direct that the said order shall not be given effect to 

pending the writ Petition. Since the proceeding   in the suit is 

now remanded to the trial court, the decision of the Civil Court 

as to the right, tittle and interest   in the suit property   being 

the   decision   of  the  competent  Civil  Court   shall  be   final  and 

binding between the parties. Order dated 01­03­2011 passed 

by   the   Minister   (Co­operation)   bearing   No.   RVA­

2709/PRA.KRA.772/15/   Sahakar,   Panan   and   Vastrodyog 

Vibhag,   Mantralaya,   Mumbai     shall   be   subject   to   the   final 

decision in the pending  short cause Suit no. 5813 of 1996 to 

be   decided     by   the   City   civil   court,   Greater   Mumbai.   Any 

person seeking to grab the land unlawfully taking disadvantage 

of want of legal heir of the last known owner of the property 

shall   never   be   encouraged.   Unlawful   land   grabbing   of   real 

estate   may   succeed   because   sometimes   corrupt   or   negligent 

self   serving   elements   intermingled   in   the   Government 

machinery   may   be   responsible   to   encourage  nominal   money 

payments towards revenue arrears and obtaining   of written 

receipts by an unauthorized person to help the unlawful cause 

of  land grabbing and tax dodging.  If the trial court finds that 

the   property   is   left   by  it's   last   known   lawful  owner   without 

leaving   any   legal   heir,   descendant   or   rightful   nominee   or 

beneficiary   such   properties,   when   situate   in   a   State,   would 

vest   in   the   State   Government   because   of   the   provisions   of 

Article 296 of the Constitution, which reads as hereunder : ­

"Subject as hereinafter provided, any property in the  

territory of India which, if this Constitution had not  

come   into   operation,   would   have   accrued   to   His  

Majesty   or,   as   the   case   may   be.   to   the   Ruler   of   an  

Indian State by escheat or lapse or as bona vacantia 

for   want   of   a  rightful  owner. shall, if  it   is property  

other case, vest in the Union".

situate in a State, vest in such State, and shall, in any  

In   the   case   in   hand,   if   the   trial   Court   finds   it 

necessary to apply doctrine of escheat it has to be applied i. e. 

to   order forfeiture of   all property (including bank accounts) 

to   the   state   treasury   if   it   appears   certain   that   there   are   no 

rightful heirs, descendants or named beneficiaries to take the 

property   upon   the   death   of   the   last   known   owner   of   the 

property concerned . The State Government has a right to take 

all   property   within   its   jurisdiction   by   escheat   for   want   of   a 

legal   heir   or   successor   or   as   bona   vacantia   for   want   of   a 

rightful owner.   We therefore direct the appellant to implead 

State   of   Maharashtra   as   necessary   and   proper   party   in   the 

present Suit  upon his appearance in the trial court.  We expect 

the trial Court to take the controversy to it's logical and legal 

outcome as it is often experienced in such cases that either of 

the party may upon some pretext or the other i.e. some sort of 

settlement outside the Court ,try to  withdraw from the case or 

to avoid the Court   or remain absent from the Court finding 

that   serious   issue   is   being   tried   which   may   have   drastic 

consequences. The trial judge may in that event ensure smooth 

progress   of   the   suit   till   it   reaches   it's   logical   end   i.   e.   by 

adopting measures such as appointment of amicus curiae, legal 

representative etc.   for   the   party, if it is satisfied   that any 

party   is   avoiding   to   attend   the   Court   or   trying   to   withdraw 

from the case . Parties to attend the trial court on 21 st October 

2013 at 11.00 a.m without fail. Hence  First appeal and  Writ 

Petition are disposed of accordingly. Rule in the Writ Petition is 

made absolute accordingly.

Proceedings is therefore remanded back to the trial 

Court with request to the trial court to   hear the parties fully 

and dispose of the entire controversy in the  suit expeditiously 

and   as   early   as   possible   considering   that   the   Plaintiff   who 

brought   the   facts   on   record   is   senior   Citizen.   The   appeal   is 

partly allowed and disposed of accordingly.

R & P be sent back forthwith.

11  

No order as to Costs.

12         Copy of this order be sent to the Principal secretary, 

10 

Law and Judiciary Department of the State of Maharashtra for 

   (A.P

. BHANGALE, J)

his information and necessary action. 

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