the plaintiff that she has purchased the suit flat i.e. bearing flat No.4
admeasuing 530 sq.ft. situated on the first floor in the apartment known
as 'Ganesh Apartment' constructed on Survey No.34/3/2/1 at Dhankavdi
by executing a Deed of Apartment and had obtained loan from Rajeshree
Shahu Sahakari Bank Ltd. The said document was registered with SubRegistrar
of Assurance. It was her case that she was in exclusive
possession of the suit flat. The defendant no.1 is her son and was serving
as a driver with Rajya Parivahan Mahamandal, Kopargaon. The plaintiff
is a widow and was working with Antar Bharati Balgram, Lonavala
and had to stay at Lonavala. The defendant no.1 after his marriage was
staying in the suit flat. It was the case of the plaintiff that on 10th
December 2004 when the plaintiff had been to Pune for paying the last
installment of the loan, she went to the suit flat and found the same
locked. The plaintiff came to know that the defendant no.1 was showing
the said flat to the public in order to sell the suit flat. The defendant no.1
had also issued a notice in the newspaper 'Daily Prabhat.'
4. The plaintiff came to know that on the basis of an alleged
power of attorney which was never entered into by the plaintiff in favour
of the defendant no.1, the defendant no.1 had alleged to have been
entered into an agreement with the defendant no.2 and since 10th
December 2004, the defendant no.2 has been staying in the suit flat.
In my view, the finding rendered by the first appellate Court
that the power of attorney is not placed on record by both the defendants
and also the agreement dated 11th December 2004 on the basis of which
the defendant no.2 is in possession over the suit flat, the only inference
can be drawn that the defendant no.1 had with malafide intention
inducted the defendant no.2 in the suit flat on the basis of bogus power
of attorney and thus the possession of the defendant no.2 over the suit
flat cannot be said to be permissive is not perverse. In my view, both
the Courts have considered the evidence led by both the parties and
have rendered findings of facts which are concurrent findings and being
not perverse, cannot be interfered with by this Court under Section 100 of
the Code of Civil Procedure, 1908.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.746 OF 2013
Madhukar s/o. Baburao B.Savle,
V
Smt.Nanda Madhukar Yene
CORAM : R.D. DHANUKA, J.
DATE : 10th October 2016.
Citation: 2016(6) ALLMR 889
By this second appeal filed under Section 100 of the Code
of Civil Procedure, 1908, the appellant (original defendant no.2) has
impugned the judgment and decree dated 2nd September 2013 passed
by the learned District Judge-5, Pune allowing the Civil Appeal No.666
of 2008 filed by the respondent no.1 herein (original plaintiff) and
setting aside the judgment and decree dated 22nd August 2008 passed
by the 7th Joint Civil Judge, Junior Division, Pune in Regular Civil
Suit No.1944 of 2004 filed by the respondent no.1 and modifying the
said decree.
2. The first appellate Court has directed the appellant herein
to hand over vacant and peaceful possession of the suit flat to the original
plaintiff within 60 days from the date of the said decree and has
restrained the appellant herein from alienating the suit property and
creating any third party interest therein. The respondent no.2 herein was
the original defendant no.1 before the trial Court. Parties described in
this judgment are as per their original status before the trial Court. Some
of the relevant facts for the purpose of deciding the second appeal are as
under :-
3. The plaintiff is mother of defendant no.1. It was the case of
the plaintiff that she has purchased the suit flat i.e. bearing flat No.4
admeasuing 530 sq.ft. situated on the first floor in the apartment known
as 'Ganesh Apartment' constructed on Survey No.34/3/2/1 at Dhankavdi
by executing a Deed of Apartment and had obtained loan from Rajeshree
Shahu Sahakari Bank Ltd. The said document was registered with SubRegistrar
of Assurance. It was her case that she was in exclusive
possession of the suit flat. The defendant no.1 is her son and was serving
as a driver with Rajya Parivahan Mahamandal, Kopargaon. The plaintiff
is a widow and was working with Antar Bharati Balgram, Lonavala
and had to stay at Lonavala. The defendant no.1 after his marriage was
staying in the suit flat. It was the case of the plaintiff that on 10th
December 2004 when the plaintiff had been to Pune for paying the last
installment of the loan, she went to the suit flat and found the same
locked. The plaintiff came to know that the defendant no.1 was showing
the said flat to the public in order to sell the suit flat. The defendant no.1
had also issued a notice in the newspaper 'Daily Prabhat.'
4. The plaintiff came to know that on the basis of an alleged
power of attorney which was never entered into by the plaintiff in favour
of the defendant no.1, the defendant no.1 had alleged to have been
entered into an agreement with the defendant no.2 and since 10th
December 2004, the defendant no.2 has been staying in the suit flat.
5. The defendant no.1 filed written statement and denied the
suit claim. The defendant no.1 also denied the title of the plaintiff in
the suit flat and alleged that he had in fact paid the entire loan of the
Rajeshree Shahu Sahakari Bank Ltd. He alleged that the plaintiff had
given him a power of attorney on 7th July 2004 at Ahmednagar in respect
of the suit flat and on the basis of the said power of attorney, he had
entered into transaction with the defendant no.2 and since 10th December
2004, the defendant no.2 has been staying in the suit flat.
6. The defendant no.2 who claims to be the purchaser of the
suit flat from the defendant no.1 filed an application below Exhibit-5
and later on adopted the said reply as his written statement. He also
denied the allegations made in the plaint and opposed the relief sought
by the plaintiff. The defendant no.2 alleged that the plaintiff had filed
the said suit in collusion with the defendant no.1. It was the case of the
defendant no.2 that the defendant no.1 told him that due to old age of
the plaintiff, it was not possible for her to remain present every time and
therefore, the power of attorney was executed by her at Ahmednagar in
favour of the defendant no.1. He alleged that he had paid various amounts
to the defendant no.1 in respect of the said transaction and was in actual
and physical possession of the suit flat by the defendant no.1.
7. Learned trial Judge framed four issues and rendered various
findings in favour of the plaintiff. The plaintiff had examined herself
and also relied upon various documents including the copy of Deed of
Apartment extract of Index No.2, notice published in the Daily Prabhat,
certificate issued by Antar Bharati Balgram etc. The defendants did not
adduce any evidence in support of their contention.
8. The defendant no.1 was absent at the time of the arguments
inspite of several opportunities given by the learned trial Judge. The
plaintiff and the defendant no.2 through their learned counsel made oral
submissions.
9. The learned trial Judge held that the plaintiff had proved
that she was the exclusive owner of the suit flat and that the defendant
no.1 had without any authority was trying to sell the suit flat to the
defendant no.2. The learned trial Judge also held that the defendant no.2
had failed to prove that he was in authorised possession of the suit flat.
The learned trial Judge held that the plaintiff had admitted during the
cross-examination that before filing of the suit, the defendant no.2 was
in possession of the suit flat and thus the learned trial Judge refused to
grant prayer of the plaintiff that the defendants should not obstruct open
and actual possession of the plaintiff over the suit flat.
10. Being aggrieved by the said judgment and decree dated
22nd August 2008, the plaintiff filed an appeal (Civil Appeal No.666 of
2008) in the Court of District Judge-5, Pune against the defendants. None
of the defendants filed any cross-objection. The plaintiff filed an
application before the first appellate Court for seeking amendment in the
suit for taking possession of the suit flat. None of the defendants raised
any objection to the application for amendment for taking possession
of the suit flat. The first appellate Court accordingly framed two
additional issues namely (i) whether the defendant no.2 is residing in
the suit flat without authority and (ii) whether the plaintiff is entitled to
possession of the suit flat.
11. The first appellate Court remitted the said two additional
issues along with record and proceedings to the trial Court for recording
findings therein. The trial Court granted opportunity to both the parties
upon remand to adduce evidence on the said additional issues framed
by the first appellate Court. None of the defendants adduced any evidence
in respect of those two additional issues. The trial Court rendered
additional findings and forwarded the same to the first appellate Court
after rendering those findings in favour of the plaintiff on those two
additional issues.
12. Thereafter, the first appellate Court heard both the parties.
The defendant no.1 did not appear before the first appellate Court. The
first appellate Court framed six points for determination. After
considering the oral and documentary evidence, the first appellate Court
held that the plaintiff had purchased the suit flat under the registered
agreement dated 27th November 1998. It is held that the plaintiff had
not executed power of attorney in favour of the defendant no.1 for
alienation of the suit flat at any point of time. It is held that the possession
of the defendant no.2 in the suit flat was not authorised. The first
appellate Court also held that the plaintiff was justified in claiming the
suit flat and refused to set aside the judgment and decree passed by the
trial Court.
13. Being aggrieved by the judgment and decree dated 2nd
September 2013 passed by the learned District Judge-5, Pune, the
defendant no.2 has filed this second appeal under Section 100 of the
Code of Civil Procedure, 1908.
14. Mr.Shah, learned counsel appearing for the appellant
(original defendant no.2) invited my attention to the decree passed by the
learned trial Judge on 22nd August 2008. It is submitted by the learned
counsel that in the plaint filed by the original plaintiff, there was no
prayer for possession of the suit flat against any of the defendants. He
submits that the defendant no.2 admittedly was placed in possession by
the defendant no.1 who had sold the suit flat by executing the agreement
in favour of the defendant no.2 by exercising power of attorney executed
by the plaintiff in his favour.
15. It is submitted by the learned counsel that the defendant no.2
admittedly is in possession of the suit flat. He submits that the appeal
against the refusal of the relief by the learned trial Judge against the
defendants not to obstruct the alleged open and actual possession of the
plaintiff over the suit flat itself was not maintainable. He submits that
the first appellate Court for the first time could not have permitted the
plaintiff to amend the plaint and to seek possession of the suit flat. He
submits that the defendant no.1 deliberately remained absent in both
the proceedings and had colluded with the plaintiff after accepting the
consideration amount and various other amounts from the defendant
no.2. He submits that the agreement entered into between the defendant
no.1 in favour of the defendant no.2 was not challenged by the plaintiff.
There was no prayer for cancellation of the agreement between the
defendant no.1 and the defendant no.2 in the plaint. He submits that the
learned trial Judge as well as the first appellate Court did not frame any
issue on the validity of the agreement entered into between the defendant
no.1 and the defendant no.2.
16. Mr.Dande, learned counsel appearing for the plaintiff invited
my attention to some of the findings rendered by the trial Court as well
as the first appellate Court. He submits that the plaintiff had not executed
any power of attorney in favour of the defendant no.1. The defendant
no.2 admittedly could not produce any alleged power of attorney on
the basis of which the defendant no.1 had executed an agreement in
favour of the defendant no.2 inspite of various opportunities given by
the learned trial Judge.
17. It is submitted by the learned counsel for the plaintiff that
when the plaintiff had made an application before the first appellate
Court for amendment in the plaint and to include the relief for taking
possession of the suit flat, none of the defendants raised any objection.
The first appellate Court had thus rightly framed additional two issues
regarding possession of the suit flat as to whether the plaintiff was
entitled to possession of the suit flat or not. He submits that though the
matter was remanded back to the trial Court for recording findings on
those two additional issues and opportunities were rendered to the
defendants to adduce the evidence in respect of two additional issues,
none of the defendants led any evidence. He submits that the additional
findings recorded by the learned trial Judge upon remand were rendered
after considering the additional evidence led by the plaintiff. He submits
that the defendant no.2 now cannot be allowed to challenge the order
passed by the first appellate Court allowing the amendment to the plaint
and framing two additional issues and remanding to the trial Court for
recording findings thereon.
18. In so far as the submission of the learned counsel for the
defendant no.2 that there was no prayer for possession sought by the
plaintiff and thus no decree for possession could be granted is concerned,
he submits that the defendant no.2 not having challenged the order
passed by the first appellate Court allowing the amendment cannot be
allowed to raise this issue at this stage.
19. In so far as the submission of the learned counsel for the
defendant no.2 that the agreement entered into between the defendant
no.1 and the defendant no.2 not having been challenged by the plaintiff
and no issues having been framed by the two Courts below, no decree
for possession could be ordered is concerned, it is submitted by the
learned counsel for the plaintiff that the plaintiff had not executed any
power of attorney in favour of the defendant no.1. He submits that since
the power of attorney on the basis of which the alleged agreement for
sale was entered into by the defendant no.1 in favour of the defendant
no.2 was not proved by the defendant no.2, the question of right, title and
interest of the defendant no.2 in the suit flat did arise. He submits that
findings rendered by two Courts below being concurrent findings and
are not perverse, cannot be interfered with by this Court under Section
100 of the Code of Civil Procedure, 1908.
REASONS AND CONCLUSIONS:-
20. There is no dispute that the plaintiff was the owner of the
suit flat. The defendant no.2 has not disputed before this Court that the
plaintiff had no title in respect of the suit flat. It was the case of the
defendant no.2 that the defendant no.1 had exercised his right under
the power of attorney alleged to have been executed by the plaintiff in
his favour. It is not in dispute that the defendant no.2 did not produce
any such alleged power of attorney before the learned trial Judge inspite
of various opportunities granted to him. The defendant no.2 could not
prove transfer of any title by the defendant no.1 in favour of the
defendant no.2. There is no dispute that the defendant no.2 came to be
in possession of the suit flat and was placed in possession by the
defendant no.1.
21. In my view, since the defendant no.1 had no power to deal
with the suit flat and being not the owner could not place the defendant
no.2 in possession of the suit flat. In my view, possession of the
defendant no.2 was thus ex facie illegal. After considering the oral and
documentary evidence, the learned trial Judge came to the conclusion
that the plaintiff had proved that she was the exclusive owner of the suit
flat and had further proved that the defendant no.1 was without any
authority was trying to sell the suit flat to the defendant no.2. No crossobjection
was filed by any of the defendants before the first appellate
Court.
22. It is not in dispute that there was no prayer for possession
initially made by the plaintiff in the plaint. There is no dispute that the
plaintiff had prayed for amendment before the first appellate Court. The
first appellate Court after hearing the plaintiff and the defendant no.2
and having found that there was no objection to the said amendment,
allowed the amendment on the issue of possession and framed two
additional issues regarding possession and had remanded the matter
back to the trial Court for rendering findings on those two additional
issues. It is not in dispute that the defendant no.2 did not challenge the
said order allowing the amendment to the plaint. Though the learned
trial Judge rendered fresh opportunity to the defendants upon remand
before rendering additional findings on those two additional issues, none
of the defendants bothered to avail of such opportunity granted by the
learned trial Judge. The learned trial Judge after considering the
additional evidence rendered findings in favour of the plaintiff on
those two additional issues.
23. In my view, since the defendant no.2 did not challenge the
order passed by the first appellate Court allowing the amendment and
claim for possession of the suit flat and framing the additional issues,
the defendant no.2 cannot be allowed to urge this issue for the first time
in this second appeal. The order of amendment passed by the first
appellate Court in favour of the plaintiff has attained finality and cannot
be challenged across the bar at this stage.
24. The findings rendered by the learned trial Judge that plaintiff
was the exclusive owner of the suit flat and that the defendant no.1
without any authority was trying to sell the suit flat to the defendant no.2
have attained finality in view of the defendant no.2 not having filed any
cross-objection.
25. In so far as the relief of possession granted by the first
appellate Court in favour of the plaintiff is concerned, since the first
appellate Court having found that the plaintiff had purchased the suit
flat and had not executed any power of attorney in favour of the
defendant no.1 for alienation of the suit flat in favour of the defendant
no.2 and that the possession of the defendant no.2 in the suit flat was
not authorised, the first appellate Court, in my view, is right in passing
the decree of possession of the suit flat in favour of the plaintiff.
26. I am not inclined to accept the submission of the learned
counsel for the defendant no.2 that no such decree for possession could
be passed by the first appellate Court. In my view, since the defendant
no.2 failed to prove any power of attorney alleged to have been executed
by the plaintiff in favour of the defendant no.1 on the basis of which the
defendant no.1 had alleged to have executed the agreement for sale in
favour of the defendant no.2, no right, title and interest of any nature
whatsoever could be conferred upon the defendant no.2. In my view,
there is no substance in the submission of the learned counsel for the
defendant no.1 that no finding is rendered by the Courts below on the
validity of the agreement entered into by the defendant no.1 in favour of
the defendant no.2.
27. In my view, the finding rendered by the first appellate Court
that the power of attorney is not placed on record by both the defendants
and also the agreement dated 11th December 2004 on the basis of which
the defendant no.2 is in possession over the suit flat, the only inference
can be drawn that the defendant no.1 had with malafide intention
inducted the defendant no.2 in the suit flat on the basis of bogus power
of attorney and thus the possession of the defendant no.2 over the suit
flat cannot be said to be permissive is not perverse. In my view, both
the Courts have considered the evidence led by both the parties and
have rendered findings of facts which are concurrent findings and being
not perverse, cannot be interfered with by this Court under Section 100 of
the Code of Civil Procedure, 1908. In my view, there is no substantial
question of law arises in this appeal. Appeal is totally devoid of merit.
28. I therefore pass the following order :-
(i) Second Appeal No.746 of 2013 is dismissed.
(ii) In view of dismissal of the second appeal, civil application does
not survive and is accordingly dismissed. No order as to costs.
(iii) There shall be no order as to costs.
29. At this stage, learned counsel for the appellant seeks
continuation of the ad-interim order passed by this Court which is
vehemently opposed by the learned counsel for the respondent no.1 on
the ground that his client is widow and is senior citizen and has been
illegally deprived of the suit property by the appellant for last several
years. Appellant has lost in all three Courts and does not deserve any
further extension of ad-interim order passed by this Court. Application
for continuation of the ad-interim order is rejected.
R.D. DHANUKA, J.
Equitable order.
ReplyDelete