In the context of the substantial questions of law which
have been framed, it would be relevant to note that the plaintiff vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Giftdeed and has mentioned specifically that by the said giftdeed the
grand mother of the plaintiff had gifted the said property to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been furnished by the plaintiff,
they have the effect of becoming part of the plaint and it was
therefore, incumbent upon the defendants to deal with the said giftdeed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 444 OF 1994.
Datta s/o Dau Shrawale,
VERSUS
Namdeo Jalbaji Diwekar
CORAM : R.M.SAVANT, J.
DATED : 10.01.2011
Citation: 2011(2) ALLMR609,2011(3) MHLJ162
The above Second Appeal arises out of the judgment and
decree dated 04.10.1994 passed by the Additional District Judge,
Pusad in Regular Civil Appeal No. 59/1990 by which, the decree
dated 22.02.1988 passed by the Joint Civil Judge, Junior Division,
Pusad in Regular Civil Suit No.159/1978, has been confirmed. The3
above Second Appeal raises the substantial questions of law as
mentioned in ground Nos. 5, 11 and 12 of the memo of Appeal. The
same read thus :
“5. Whether a suit by a coowner for possession is
maintainable without impleading the other coowners
? If no, whether in the facts and
circumstances of the case the suit of the
respondent for possession competent and
maintainable at the instance of the respondent
alone ?
11. Whether it is open for the Court to read in
evidence documents not pleaded in the plaint ?
If no, whether the Courts below were right in
relying upon the alleged gift deed dated
16.01.1930 at Exh.23 ? In absence of
necessary pleadings in the plaint to determine
the title of the plaintiff ?
12. Whether Section 90 of the Indian Evidence Act,
1872 vests discretion with the Court to apply
the presumption of proper attestation and
execution to a document 30 years old ? If yes,
whether in the facts and circumstances of the
case the Courts below have properly exercised
its discretion of raising the presumption
available under Section 90 of the Indian4
Evidence Act to the alleged giftdeed dated
16.1.30 ?”
In so far as the ground no.5 is concerned, Shri D.C. Daga, the learned
Counsel appearing for appellants fairly conceded that in view of the
legal position, and in view of the authoritative pronouncements of
this Court he would not be pressing the said ground, therefore, the
questions of law in ground nos. 11 and 12 only survive for
consideration in the above Second Appeal. The background facts in
nut shell are as under.
2. The respondent herein is the original plaintiff. The suit site
is an open site bearing Municipal property No.37, admeasuring 60
feet in length from South to North; 30 feet in width from East to West,
bounded towards East by open site of Punjabai; towards West by the
road and house of Chandrakant; towards South by West side land of
Sawitribai and to the North, houses of Sakharam, Hiraman and
Ukanada, whereupon there is a Samadhi and a platform admeasuring
16 x 10 feet on the NorthWest corner, which is owned by the
plaintiff. It is the case of the plaintiff that the said suit site is an
ancestral property. His name is shown in the Municipal assessment
list, as its owner. It is further the case of the plaintiff that he is5
regularly paying the taxes to the Municipal Council. The plaintiff was
a member of Armed Forces, but was discharged from the Armed
Forces since he lost his eye sight on the Front. It is his case, that the
defendants took undue advantage of his absence, blindness and
helplessness, and encroached upon the suit site on 27.10.1977 and
constructed a hut and a cattle shed on it. It is further the case of the
plaintiff that the defendants gradually encroached upon the remaining
portion/site finally on 13.03.1978 and dispossessed the plaintiff. The
plaintiff. therefore, filed the suit being Regular Civil Suit No.
159/1978 for possession against the defendants.
3. It is the case of the defendants that the suit site is their
ancestral property and their father was in exclusive possession of it till
1977, and after the death of their father, they have inherited it. They
denied that they have encroached upon the suit site and dispossessed
the plaintiff. According to the defendants, the site wherein the
Samadhi is situated, as also the tomb, is owned by them and its
owner was their great grand father Shri Dau. The defendants
contended that the suit was bad for nonjoinder of necessary parties,
as the plaintiff had not joined one Bhagirathibai, who was daughter of
Dau and who is their sister. The defendants, therefore, prayed for
dismissal of the suit.6
4. The Trial Court on the basis of the pleadings framed
relevant issues. The Trial Court initially by its judgment and order
dated 17.02.1982, decreed the suit and granted the relief sought by
the plaintiff. The defendants aggrieved by the said decree passed
against them, carried the matter in Appeal being Regular Civil Appeal
No. 66/1983. The Appellate Court by its judgment and order dated
09.02.1984 set aside the decree on the ground that the description of
the property was not proper, and therefore, remanded the matter back
to the Trial Court and allowed the parties to amend their respective
pleadings. The parties accordingly carried out the amendment and
led evidence in support of their respective cases. The Trial Court
again by its judgment and order dated 22.02.1988 decreed the suit.
In so far as the ownership of the plaintiff is concerned, the Trial Court
on the basis of the evidence on record and especially the Giftdeed
dated 16.01.1930 Exh.23, by which the grand mother of the plaintiff
had gifted the property to the plaintiff''s mother along with other
properties at Umarkhed, as also the Municipal assessment list
(Exhs.24 and 72), held that the plaintiff was the owner of the
property, and therefore, decreed the suit and ordered enquiry for
mesne profits under Order XX Rule 12 of the Civil Procedure Code.7
5. Being aggrieved by the decree dated 22.02.1988, the
defendants filed Regular Civil Appeal No. 59/1990. The said Appeal
came to be dismissed and the findings of the Trial Court in so far as
the Giftdeed is concerned, were confirmed. The Lower Appellate
Court has in terms held that the trial Court was right in holding that
the property was of the ownership of plaintiff on the basis of the Giftdeed
(Exh.23) and extract of Municipal assessment record. In so far
as the case of the defendants was concerned, both the Courts below
have held that except bare testimony of the original defendant no.3,
the defendants have not produced any document, except some
assessment list, which was also not pertaining to the suit plot to assert
their title as well as possession over the suit plot. Both the Courts
therefore, have concurrently recorded a finding of fact as regards the
factum of plaintiff having proved his title to the suit property.
6. Before going to the submissions of the respective Counsel,
it would be relevant to note that in so far as the Giftdeed is
concerned, which is dated 16.01.1930 (Exh.23), the Trial Court at the
time of passing of the first decree dated 17.02.1982 had recorded a
finding while deciding issue no.1 in paragraph no.4 of its order to the
following effect.8
“..... In the crossexamination of the plaintiff it is
found true that there is no mention of the gift in the
plaint, but then it must not be forgotten that the giftdeed
is older than 50 years and equally old is the
plaintiff and therefore it is possible that this fact was
not revealed by the plaintiff to his young Advocate.
Still then, later on, before the evidence as a reply to
the application filed by the defendant, the plaintiff has
stated in Exh.10 that the suit property was gifted by
his grandmother to his mother.”
7. It is required to be noted that after such a finding was
recorded, the matter was carried to the Appeal Court by the
defendants by filing Regular Civil Appeal No. 66/1983 and the Lower
Appellate Court had remanded the matter back to the Trial Court on
the ground that the description of the property was not proper and
clear, the Lower Appellate Court while remanding the matter had
permitted the parties to amend their pleadings. It is significant to
note that though such opportunity was granted, the defendants herein
had not amended their written statement, though being aware of the
finding recorded by the Trial Court at the time of passing of the first
decree on 17.02.1982. In so far as the defendants are concerned, in
the written statement they have merely stated that they have no
knowledge of the said Giftdeed dated 16.01.1930 Exh.23.9
8. I have heard Shri D.C. Daga, the learned Counsel for
appellants/original defendants and Shri B.N. Mohta, the learned
Counsel for Respondent/original plaintiff.
It is the contention of Shri Daga, the learned Counsel
appearing on behalf of the appellants, that both the Courts below
have erred in decreeing the suit on the basis of the Giftdeed dated
16.01.1930 when there were no pleadings referring to the said Giftdeed
in the plaint. The learned Counsel submitted that in absence of
the pleadings, the plaintiff could not have led evidence, on the basis of
said Giftdeed. The learned Counsel in support of his submissions
sought to rely upon the judgment of Hon'ble Apex Court reported in
AIR 1987 SC 2179 (Vinod Kumar Arora .vrs. Smt. Surjit Kaur).
Paragraph no.11 of the said judgment is material and is reproduced
herein.
“11. However, when the appellant entered the
witness box, he gave up the case set out in the
written statement and propounded a different case
that the hall had been taken on lease only for nonresidential
purposes. The perceptible manner in
which the appellant had shifted his defence has
escaped the notice and consideration of the Statutory10
Authorities. Both the Authorities have failed to bear
in mind that the pleadings of the parties form the
foundation of their case and it is not open to them to
give up the case set out in the pleadings and
propound a new and different case. Another failing
noticed in the judgments of the Rent Controller and
the Appellate Authority is that they have been
oblivious to the fact that the respondent had leased
out the hall to the appellant only for a period of 11
months. Such being the case, even if the respondent
had come to know soon after the lease was created
and the appellant was using the hall to run a clinic,
she may have thought it prudent to let the appellant
have his way so that she can recover possession of the
hall after 11 months without hitch whereas if she
began quarreling with the appellant for his running
a clinic, she would have to be locked up in litigation
with him for a considerable length of time and can
obtain possession of the hall only after succeeding in
the litigation. Yet another factor which vitiates the
findings of the Rent Controller and the Appellate
Authority is that both of them have overlooked Sec.
11 of the Act, and the sustainability of any lease
transaction entered in contravention of Section 11.
The legislature, with a view to ensure adequate
housing accommodation for the people, has
interdicted by means of Section 11 the conversion of
residential buildings into nonresidential ones11
without the written consent of the Rent Controller.
Admittedly, in this case the parties had not obtgained
the consent in writing of the Rent Controller for
converting the hall in a residential building into a
clinic. Such being the case, the appellant cannot get
over the embargo placed by Section 11 by pleading
that the respondent was well aware of his running a
clinic in the hall and that she had not raised
objection at any time to the running of the clinic.
Learned Counsel for the appellant referred us to the
decision in Dr. Gopal Dass Verma v. Dr. S.K.
Bharadwaj (1962) 2 SCR 678 : (AIR 1963 SC 337)
and argued that the ratio laid down therein would be
fully attracted to the facts of this case. It is true that
in the said decision, it was held that when a leased
premises was used by the lessee incidentally for
professional purposes and that too with the consent
of the landlord, then the case would go out of the
purview of Section 13[3][e] of the Delhi and Ajmer
Rent Control Act, 1954 and consequently the
landlord would not be entitled to see eviction of the
tenant on the ground he required the premises for his
own residential requirements. We find the facts in
that case to be markedly different and it was the
speciality of the facts which was largely instrumental
in persuading this Court to render its decision in the
aforesaid manner. Moreover, the Court had not
considered the question whether the conversion of a12
residential premises into a nonresidential one
without the permission of the Rent Controller was
permissible under the Delhi & Ajmer Rent Control Act
and if it was not permitted, how far the
contravention would affect the rights of the parties.
In our opinion, the more relevant decision to be
noticed would be Kamal Arora v. Amar Singh, 1986
[Suppl] SCC 481 where this Court declined to
interfere with an order of eviction passed in favour of
the landlord as the Court was of the view that even if
the landlord and the tenant had converted a
residential building into a non residential one by
mutual consent, it would still be violative of Section
11 of the East Punjab Rent Restriction Act and,
therefore, the landlord cannot be barred from seeking
recovery of possession of the leased building for his
residential needs. We are therefore of the view that
the findings of the Rent Controller and the Appellate
Authority about the appellant having taken the hall
on lease only for running a clinic and that he had
not changed the user of the premises have been
rendered without reference to the pleadings and
without examining the legality of the appellant's
contentions in the light of Section 11 of the Act. We
do not therefore think the High Court has committed
any error in law in ignoring the findings rendered by
the Statutory Authorities about the purpose for
which the hall had been taken on lease.”13
9. The learned Counsel for the appellant further contended
that, in so far as the document which is more than 30 years old is
concerned, though its execution need not be proved, the contents
would have to be proved. In the instant case, the contents were not
proved, hence the said document was of no avail to the appellant to
support their case of having acquired the ownership of the suit
property on account of the said giftdeed. The learned Counsel has
placed reliance upon the judgment a learned Hon'ble Single Judge of
this Court reported in 2005 [1] Mh.L.J. 306 (Prabhakar Balasa
Saoji .vrs. Subhash Baburao Malode and others). The learned Counsel
submitted that the fact that the defendants were in possession of the
property since last more than 30 years was a factor in their favour to
show that they were the owners and therefore, are in possession of
the property.
10. Per contra, it is submitted by the learned Counsel Shri
B.N. Mohta, appearing for the respondent/ original plaintiff, that the
contentions of defendants that there is no mention of the document in
the pleadings is misconceived. The learned Counsel submitted that,
prior to filing of their written statement the defendants has filed an
application dated 20.11.1978 (Exh.8) and called upon the plaintiff to14
give better particulars of the case made out in the plaint, on the basis
of the orders passed on the said application the better particulars were
furnished to the defendants by the plaintiff' vide his reply dated
04.07.1979 (Exh.10). In paragraph no.2 of the said reply it is
categorically mentioned by the plaintiff, that the said property was
gifted to the plaintiff's mother by the plaintiff's grandmother and
since the plaintiff is the only surviving, he has acquired title to the
suit property. Shri Mohta, the learned Counsel further submitted that
it is not enough for the defendants to show ignorance of the existence
of the Giftdeed. There ought to have been specific pleading denying
the said document and challenging the same. In absence of any such
challenge to the contents of the said document, it was not necessary
for the plaintiff to prove the said document which was more than 30
years old. The learned Counsel for the plaintiff relied upon the
judgment of Madhya Pradesh High Court reported at AIR 1992
Madhya Pradesh 1 (Indore Bench) (Hariram Lehrumal Sindhi .vrs.
Anandrao Narayanrao Mukati and others), wherein it has been held
that pleading showing want of knowledge of a particular fact amounts
to admission of the said fact. Reference could also be made to the
judgment of the Hon'ble Apex Court reported in (1993) 4 SCC 6 in the
matter of Lohia Properties (P) Ltd. .vrs. Atmaram Kumar) and the
judgment of the learned Single Judge of this Court reported in15
(1995) 1 Mh.L.J. 22 in the matter of (Sambhaji Laxman Pawar .vrs.
Abdul Wahed Rahmatullah) wherein it has been held that the nondenial
of the averment in the written statement amounts to admission.
The learned Counsel submitted that since both the Courts have
concurrently held that in so far as the plaintiff is concerned he has
proved his title to the suit property, this Court should therefore not
interfere.
11. I have heard the learned Counsel for the parties and given
my anxious consideration to the rival contentions.
12. In the context of the substantial questions of law which
have been framed, it would be relevant to note that the plaintiff vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Giftdeed and has mentioned specifically that by the said giftdeed the
grand mother of the plaintiff had gifted the said property to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been furnished by the plaintiff,
they have the effect of becoming part of the plaint and it was
therefore, incumbent upon the defendants to deal with the said giftdeed.
However, it is relevant to note that in the written statement,
the defendants have denied the knowledge of the giftdeed. The
deposition of the witness of the defendants is also replete with the
absence of knowledge of the Giftdeed by the defendants. If the
defendants were aggrieved by the fact that the plaintiff was claiming
title on the basis of the giftdeed, the defendants ought to have
categorically taken a stand one way or the other as regards the said
giftdeed. In the light of the material on records, especially Exh.8
which is an application of the defendants and the reply dated
04.01.1979 [Exh.10], it cannot be said that as both the Courts below
have relied upon the document which is not part of the pleadings. In
my view, therefore, there is no merit in the said contention of the
appellants/ defendants.
14. In so far as the contention of learned Counsel for the
appellants/defendants, that though in respect of a document which is
more than 30 years old, its execution etc. need not be proved, but its
contents would have to be proved. In my view the said submissions
is totally misconceived. As mentioned hereinabove, that the
pleadings of the defendants as well as the deposition, is replete with17
the stand of the defendants showing absence of knowledge of the said
giftdeed dated 16.01.1930. There is, therefore, absolutely no
challenge to the said document by the defendants. Once it is held
that denial of knowledge would amount to an admission, then there
was no obligation on the part of the plaintiff to prove the contents of
the said gift deed dated 16.01.1930, and therefore, both the Courts
below have rightly proceeded on the basis that the giftdeed does not
require any further corroboration. In my view, the reliance on the
judgment of learned Single Judge of this Court in Prabhakar Saoji's
Case [supra] by the appellant is misplaced in the light of the aforesaid
facts.
15. Though Shri D.C. Daga, learned Counsel for the appellants
sought to lay much stress on the aspect that both the Courts below
have proceeded to decree the suit on the basis of the giftdeed, in
absence of any pleadings in that behalf, it is required to be noted that
though the trial Court at the first stage, when the decree was passed
on 17.02.1982 and thereafter, at the second stage on remand on
22.02.1988 had recorded a finding in respect of the giftdeed. The
defendants while challenging the decree in the first Appellate Court
had not taken any specific ground assailing the decree on the ground
now sought to be raised in the Second Appeal. In my view, if the18
defendants were so aggrieved by the said fact they could have made it
a ground of challenge in the grounds in the memo of appeal of
Regular Civil Appeal No. 59/1990, which they had filed against the
decree dated 22.02.1988, but, having not done so, in my view, the
defendants are not entitled to raise the said ground in the present
Second Appeal. However, since I have already dealt with the two
substantial questions of law, in respect of which I have recorded my
answers hereinabove, in my view, there is no requirement to dismiss
the Second Appeal on the ground that the defendants have not raised
the ground now sought to be raised, before the first Appellate Court.
16. Both the Courts below, as mentioned hereinabove have
concurrently held on the basis of the said giftdeed, that the plaintiff
has proved his title to the suit property. The question of law stands
answered in terms of what is stated hereinabove. In my view, there is
no merit in the Second Appeal, which is accordingly dismissed, with
no order as to costs.
JUDGE
Rgd.
have been framed, it would be relevant to note that the plaintiff vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Giftdeed and has mentioned specifically that by the said giftdeed the
grand mother of the plaintiff had gifted the said property to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been furnished by the plaintiff,
they have the effect of becoming part of the plaint and it was
therefore, incumbent upon the defendants to deal with the said giftdeed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 444 OF 1994.
Datta s/o Dau Shrawale,
VERSUS
Namdeo Jalbaji Diwekar
CORAM : R.M.SAVANT, J.
DATED : 10.01.2011
Citation: 2011(2) ALLMR609,2011(3) MHLJ162
The above Second Appeal arises out of the judgment and
decree dated 04.10.1994 passed by the Additional District Judge,
Pusad in Regular Civil Appeal No. 59/1990 by which, the decree
dated 22.02.1988 passed by the Joint Civil Judge, Junior Division,
Pusad in Regular Civil Suit No.159/1978, has been confirmed. The3
above Second Appeal raises the substantial questions of law as
mentioned in ground Nos. 5, 11 and 12 of the memo of Appeal. The
same read thus :
“5. Whether a suit by a coowner for possession is
maintainable without impleading the other coowners
? If no, whether in the facts and
circumstances of the case the suit of the
respondent for possession competent and
maintainable at the instance of the respondent
alone ?
11. Whether it is open for the Court to read in
evidence documents not pleaded in the plaint ?
If no, whether the Courts below were right in
relying upon the alleged gift deed dated
16.01.1930 at Exh.23 ? In absence of
necessary pleadings in the plaint to determine
the title of the plaintiff ?
12. Whether Section 90 of the Indian Evidence Act,
1872 vests discretion with the Court to apply
the presumption of proper attestation and
execution to a document 30 years old ? If yes,
whether in the facts and circumstances of the
case the Courts below have properly exercised
its discretion of raising the presumption
available under Section 90 of the Indian4
Evidence Act to the alleged giftdeed dated
16.1.30 ?”
In so far as the ground no.5 is concerned, Shri D.C. Daga, the learned
Counsel appearing for appellants fairly conceded that in view of the
legal position, and in view of the authoritative pronouncements of
this Court he would not be pressing the said ground, therefore, the
questions of law in ground nos. 11 and 12 only survive for
consideration in the above Second Appeal. The background facts in
nut shell are as under.
2. The respondent herein is the original plaintiff. The suit site
is an open site bearing Municipal property No.37, admeasuring 60
feet in length from South to North; 30 feet in width from East to West,
bounded towards East by open site of Punjabai; towards West by the
road and house of Chandrakant; towards South by West side land of
Sawitribai and to the North, houses of Sakharam, Hiraman and
Ukanada, whereupon there is a Samadhi and a platform admeasuring
16 x 10 feet on the NorthWest corner, which is owned by the
plaintiff. It is the case of the plaintiff that the said suit site is an
ancestral property. His name is shown in the Municipal assessment
list, as its owner. It is further the case of the plaintiff that he is5
regularly paying the taxes to the Municipal Council. The plaintiff was
a member of Armed Forces, but was discharged from the Armed
Forces since he lost his eye sight on the Front. It is his case, that the
defendants took undue advantage of his absence, blindness and
helplessness, and encroached upon the suit site on 27.10.1977 and
constructed a hut and a cattle shed on it. It is further the case of the
plaintiff that the defendants gradually encroached upon the remaining
portion/site finally on 13.03.1978 and dispossessed the plaintiff. The
plaintiff. therefore, filed the suit being Regular Civil Suit No.
159/1978 for possession against the defendants.
3. It is the case of the defendants that the suit site is their
ancestral property and their father was in exclusive possession of it till
1977, and after the death of their father, they have inherited it. They
denied that they have encroached upon the suit site and dispossessed
the plaintiff. According to the defendants, the site wherein the
Samadhi is situated, as also the tomb, is owned by them and its
owner was their great grand father Shri Dau. The defendants
contended that the suit was bad for nonjoinder of necessary parties,
as the plaintiff had not joined one Bhagirathibai, who was daughter of
Dau and who is their sister. The defendants, therefore, prayed for
dismissal of the suit.6
4. The Trial Court on the basis of the pleadings framed
relevant issues. The Trial Court initially by its judgment and order
dated 17.02.1982, decreed the suit and granted the relief sought by
the plaintiff. The defendants aggrieved by the said decree passed
against them, carried the matter in Appeal being Regular Civil Appeal
No. 66/1983. The Appellate Court by its judgment and order dated
09.02.1984 set aside the decree on the ground that the description of
the property was not proper, and therefore, remanded the matter back
to the Trial Court and allowed the parties to amend their respective
pleadings. The parties accordingly carried out the amendment and
led evidence in support of their respective cases. The Trial Court
again by its judgment and order dated 22.02.1988 decreed the suit.
In so far as the ownership of the plaintiff is concerned, the Trial Court
on the basis of the evidence on record and especially the Giftdeed
dated 16.01.1930 Exh.23, by which the grand mother of the plaintiff
had gifted the property to the plaintiff''s mother along with other
properties at Umarkhed, as also the Municipal assessment list
(Exhs.24 and 72), held that the plaintiff was the owner of the
property, and therefore, decreed the suit and ordered enquiry for
mesne profits under Order XX Rule 12 of the Civil Procedure Code.7
5. Being aggrieved by the decree dated 22.02.1988, the
defendants filed Regular Civil Appeal No. 59/1990. The said Appeal
came to be dismissed and the findings of the Trial Court in so far as
the Giftdeed is concerned, were confirmed. The Lower Appellate
Court has in terms held that the trial Court was right in holding that
the property was of the ownership of plaintiff on the basis of the Giftdeed
(Exh.23) and extract of Municipal assessment record. In so far
as the case of the defendants was concerned, both the Courts below
have held that except bare testimony of the original defendant no.3,
the defendants have not produced any document, except some
assessment list, which was also not pertaining to the suit plot to assert
their title as well as possession over the suit plot. Both the Courts
therefore, have concurrently recorded a finding of fact as regards the
factum of plaintiff having proved his title to the suit property.
6. Before going to the submissions of the respective Counsel,
it would be relevant to note that in so far as the Giftdeed is
concerned, which is dated 16.01.1930 (Exh.23), the Trial Court at the
time of passing of the first decree dated 17.02.1982 had recorded a
finding while deciding issue no.1 in paragraph no.4 of its order to the
following effect.8
“..... In the crossexamination of the plaintiff it is
found true that there is no mention of the gift in the
plaint, but then it must not be forgotten that the giftdeed
is older than 50 years and equally old is the
plaintiff and therefore it is possible that this fact was
not revealed by the plaintiff to his young Advocate.
Still then, later on, before the evidence as a reply to
the application filed by the defendant, the plaintiff has
stated in Exh.10 that the suit property was gifted by
his grandmother to his mother.”
7. It is required to be noted that after such a finding was
recorded, the matter was carried to the Appeal Court by the
defendants by filing Regular Civil Appeal No. 66/1983 and the Lower
Appellate Court had remanded the matter back to the Trial Court on
the ground that the description of the property was not proper and
clear, the Lower Appellate Court while remanding the matter had
permitted the parties to amend their pleadings. It is significant to
note that though such opportunity was granted, the defendants herein
had not amended their written statement, though being aware of the
finding recorded by the Trial Court at the time of passing of the first
decree on 17.02.1982. In so far as the defendants are concerned, in
the written statement they have merely stated that they have no
knowledge of the said Giftdeed dated 16.01.1930 Exh.23.9
8. I have heard Shri D.C. Daga, the learned Counsel for
appellants/original defendants and Shri B.N. Mohta, the learned
Counsel for Respondent/original plaintiff.
It is the contention of Shri Daga, the learned Counsel
appearing on behalf of the appellants, that both the Courts below
have erred in decreeing the suit on the basis of the Giftdeed dated
16.01.1930 when there were no pleadings referring to the said Giftdeed
in the plaint. The learned Counsel submitted that in absence of
the pleadings, the plaintiff could not have led evidence, on the basis of
said Giftdeed. The learned Counsel in support of his submissions
sought to rely upon the judgment of Hon'ble Apex Court reported in
AIR 1987 SC 2179 (Vinod Kumar Arora .vrs. Smt. Surjit Kaur).
Paragraph no.11 of the said judgment is material and is reproduced
herein.
“11. However, when the appellant entered the
witness box, he gave up the case set out in the
written statement and propounded a different case
that the hall had been taken on lease only for nonresidential
purposes. The perceptible manner in
which the appellant had shifted his defence has
escaped the notice and consideration of the Statutory10
Authorities. Both the Authorities have failed to bear
in mind that the pleadings of the parties form the
foundation of their case and it is not open to them to
give up the case set out in the pleadings and
propound a new and different case. Another failing
noticed in the judgments of the Rent Controller and
the Appellate Authority is that they have been
oblivious to the fact that the respondent had leased
out the hall to the appellant only for a period of 11
months. Such being the case, even if the respondent
had come to know soon after the lease was created
and the appellant was using the hall to run a clinic,
she may have thought it prudent to let the appellant
have his way so that she can recover possession of the
hall after 11 months without hitch whereas if she
began quarreling with the appellant for his running
a clinic, she would have to be locked up in litigation
with him for a considerable length of time and can
obtain possession of the hall only after succeeding in
the litigation. Yet another factor which vitiates the
findings of the Rent Controller and the Appellate
Authority is that both of them have overlooked Sec.
11 of the Act, and the sustainability of any lease
transaction entered in contravention of Section 11.
The legislature, with a view to ensure adequate
housing accommodation for the people, has
interdicted by means of Section 11 the conversion of
residential buildings into nonresidential ones11
without the written consent of the Rent Controller.
Admittedly, in this case the parties had not obtgained
the consent in writing of the Rent Controller for
converting the hall in a residential building into a
clinic. Such being the case, the appellant cannot get
over the embargo placed by Section 11 by pleading
that the respondent was well aware of his running a
clinic in the hall and that she had not raised
objection at any time to the running of the clinic.
Learned Counsel for the appellant referred us to the
decision in Dr. Gopal Dass Verma v. Dr. S.K.
Bharadwaj (1962) 2 SCR 678 : (AIR 1963 SC 337)
and argued that the ratio laid down therein would be
fully attracted to the facts of this case. It is true that
in the said decision, it was held that when a leased
premises was used by the lessee incidentally for
professional purposes and that too with the consent
of the landlord, then the case would go out of the
purview of Section 13[3][e] of the Delhi and Ajmer
Rent Control Act, 1954 and consequently the
landlord would not be entitled to see eviction of the
tenant on the ground he required the premises for his
own residential requirements. We find the facts in
that case to be markedly different and it was the
speciality of the facts which was largely instrumental
in persuading this Court to render its decision in the
aforesaid manner. Moreover, the Court had not
considered the question whether the conversion of a12
residential premises into a nonresidential one
without the permission of the Rent Controller was
permissible under the Delhi & Ajmer Rent Control Act
and if it was not permitted, how far the
contravention would affect the rights of the parties.
In our opinion, the more relevant decision to be
noticed would be Kamal Arora v. Amar Singh, 1986
[Suppl] SCC 481 where this Court declined to
interfere with an order of eviction passed in favour of
the landlord as the Court was of the view that even if
the landlord and the tenant had converted a
residential building into a non residential one by
mutual consent, it would still be violative of Section
11 of the East Punjab Rent Restriction Act and,
therefore, the landlord cannot be barred from seeking
recovery of possession of the leased building for his
residential needs. We are therefore of the view that
the findings of the Rent Controller and the Appellate
Authority about the appellant having taken the hall
on lease only for running a clinic and that he had
not changed the user of the premises have been
rendered without reference to the pleadings and
without examining the legality of the appellant's
contentions in the light of Section 11 of the Act. We
do not therefore think the High Court has committed
any error in law in ignoring the findings rendered by
the Statutory Authorities about the purpose for
which the hall had been taken on lease.”13
9. The learned Counsel for the appellant further contended
that, in so far as the document which is more than 30 years old is
concerned, though its execution need not be proved, the contents
would have to be proved. In the instant case, the contents were not
proved, hence the said document was of no avail to the appellant to
support their case of having acquired the ownership of the suit
property on account of the said giftdeed. The learned Counsel has
placed reliance upon the judgment a learned Hon'ble Single Judge of
this Court reported in 2005 [1] Mh.L.J. 306 (Prabhakar Balasa
Saoji .vrs. Subhash Baburao Malode and others). The learned Counsel
submitted that the fact that the defendants were in possession of the
property since last more than 30 years was a factor in their favour to
show that they were the owners and therefore, are in possession of
the property.
10. Per contra, it is submitted by the learned Counsel Shri
B.N. Mohta, appearing for the respondent/ original plaintiff, that the
contentions of defendants that there is no mention of the document in
the pleadings is misconceived. The learned Counsel submitted that,
prior to filing of their written statement the defendants has filed an
application dated 20.11.1978 (Exh.8) and called upon the plaintiff to14
give better particulars of the case made out in the plaint, on the basis
of the orders passed on the said application the better particulars were
furnished to the defendants by the plaintiff' vide his reply dated
04.07.1979 (Exh.10). In paragraph no.2 of the said reply it is
categorically mentioned by the plaintiff, that the said property was
gifted to the plaintiff's mother by the plaintiff's grandmother and
since the plaintiff is the only surviving, he has acquired title to the
suit property. Shri Mohta, the learned Counsel further submitted that
it is not enough for the defendants to show ignorance of the existence
of the Giftdeed. There ought to have been specific pleading denying
the said document and challenging the same. In absence of any such
challenge to the contents of the said document, it was not necessary
for the plaintiff to prove the said document which was more than 30
years old. The learned Counsel for the plaintiff relied upon the
judgment of Madhya Pradesh High Court reported at AIR 1992
Madhya Pradesh 1 (Indore Bench) (Hariram Lehrumal Sindhi .vrs.
Anandrao Narayanrao Mukati and others), wherein it has been held
that pleading showing want of knowledge of a particular fact amounts
to admission of the said fact. Reference could also be made to the
judgment of the Hon'ble Apex Court reported in (1993) 4 SCC 6 in the
matter of Lohia Properties (P) Ltd. .vrs. Atmaram Kumar) and the
judgment of the learned Single Judge of this Court reported in15
(1995) 1 Mh.L.J. 22 in the matter of (Sambhaji Laxman Pawar .vrs.
Abdul Wahed Rahmatullah) wherein it has been held that the nondenial
of the averment in the written statement amounts to admission.
The learned Counsel submitted that since both the Courts have
concurrently held that in so far as the plaintiff is concerned he has
proved his title to the suit property, this Court should therefore not
interfere.
11. I have heard the learned Counsel for the parties and given
my anxious consideration to the rival contentions.
12. In the context of the substantial questions of law which
have been framed, it would be relevant to note that the plaintiff vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Giftdeed and has mentioned specifically that by the said giftdeed the
grand mother of the plaintiff had gifted the said property to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been furnished by the plaintiff,
they have the effect of becoming part of the plaint and it was
therefore, incumbent upon the defendants to deal with the said giftdeed.
However, it is relevant to note that in the written statement,
the defendants have denied the knowledge of the giftdeed. The
deposition of the witness of the defendants is also replete with the
absence of knowledge of the Giftdeed by the defendants. If the
defendants were aggrieved by the fact that the plaintiff was claiming
title on the basis of the giftdeed, the defendants ought to have
categorically taken a stand one way or the other as regards the said
giftdeed. In the light of the material on records, especially Exh.8
which is an application of the defendants and the reply dated
04.01.1979 [Exh.10], it cannot be said that as both the Courts below
have relied upon the document which is not part of the pleadings. In
my view, therefore, there is no merit in the said contention of the
appellants/ defendants.
14. In so far as the contention of learned Counsel for the
appellants/defendants, that though in respect of a document which is
more than 30 years old, its execution etc. need not be proved, but its
contents would have to be proved. In my view the said submissions
is totally misconceived. As mentioned hereinabove, that the
pleadings of the defendants as well as the deposition, is replete with17
the stand of the defendants showing absence of knowledge of the said
giftdeed dated 16.01.1930. There is, therefore, absolutely no
challenge to the said document by the defendants. Once it is held
that denial of knowledge would amount to an admission, then there
was no obligation on the part of the plaintiff to prove the contents of
the said gift deed dated 16.01.1930, and therefore, both the Courts
below have rightly proceeded on the basis that the giftdeed does not
require any further corroboration. In my view, the reliance on the
judgment of learned Single Judge of this Court in Prabhakar Saoji's
Case [supra] by the appellant is misplaced in the light of the aforesaid
facts.
15. Though Shri D.C. Daga, learned Counsel for the appellants
sought to lay much stress on the aspect that both the Courts below
have proceeded to decree the suit on the basis of the giftdeed, in
absence of any pleadings in that behalf, it is required to be noted that
though the trial Court at the first stage, when the decree was passed
on 17.02.1982 and thereafter, at the second stage on remand on
22.02.1988 had recorded a finding in respect of the giftdeed. The
defendants while challenging the decree in the first Appellate Court
had not taken any specific ground assailing the decree on the ground
now sought to be raised in the Second Appeal. In my view, if the18
defendants were so aggrieved by the said fact they could have made it
a ground of challenge in the grounds in the memo of appeal of
Regular Civil Appeal No. 59/1990, which they had filed against the
decree dated 22.02.1988, but, having not done so, in my view, the
defendants are not entitled to raise the said ground in the present
Second Appeal. However, since I have already dealt with the two
substantial questions of law, in respect of which I have recorded my
answers hereinabove, in my view, there is no requirement to dismiss
the Second Appeal on the ground that the defendants have not raised
the ground now sought to be raised, before the first Appellate Court.
16. Both the Courts below, as mentioned hereinabove have
concurrently held on the basis of the said giftdeed, that the plaintiff
has proved his title to the suit property. The question of law stands
answered in terms of what is stated hereinabove. In my view, there is
no merit in the Second Appeal, which is accordingly dismissed, with
no order as to costs.
JUDGE
Rgd.
No comments:
Post a Comment