Prabhakar Sambhaji Dhole vs Jaitumbi Nadaf

F.M. Reis, J.—Heard Mr. G. Shirodkar, learned counsel appearing for the appellants.

The above appeal has been admitted on the following substantial questions of law by order dated 07.01.2010.

(i) Whether the learned Appellate Court committed error of the law in not treating the Cross Appeal as Cross objection under Order 41, Rule 22 which was filed within 30 days from the date of the receipt of the summons from the Court in the appeal filed by the respondent no. 1 ?

(ii) Whether the Appellate Court committed an error of law in decreeing the suit which decree cannot be executed unless the possession of the tenanted portion of the tenements which comes under the proposed widening of road recovered from the tenants ?

(iii) Whether the Appellate Court committed an error of law in granting the relief in terms of prayer clause "b" when it is not the liability of the original owner to provide 6 metres wide road as per the concerned decree in RCS No. 51/97 ?

(iv) Whether the Lower Appellate Court committed error of law in allowing the appeal on totally new point for consideration when the suit was filed for mandatory injunction without seeking the relief of declaration of right to 6 metres road ?

At the hearing of the above appeal, Mr. G. Shirodkar, learned counsel appearing for the appellants does not press for the first substantial question of law framed by this Court.

Mr. Shirodkar, learned counsel appearing for the appellants has pointed out that the appellant no. 1 is the defendant no. 3 in the suit whereas the appellant no. 2 is the defendant no. 4 in the suit and according to him both the appellants were in possession of the suit property and as such the learned Judge while passing the impugned judgment has indirectly dispossessed the appellants of the tenements which have been rented to the appellants by the original defendant nos. 1 and 2 who are the respondent nos. 2 and 3 herein. The learned counsel further pointed out that the tenement of the appellant no. 1 is located in the Chalta No. 263 of P.T. Sheet No. 152 of City of Vasco-da-Gama, which he is occupying. The learned counsel further pointed out that the learned Judge while passing the impugned judgment has directed that the access of six metres is to be provided for the benefits of the respondent no. 1 without stating as to whether such access is available at the site. The learned counsel further pointed out that as no such area is available at the site, the question of directing that a six metres wide access is to be reserved to the respondent no. 1 does not arise at all. The learned counsel further pointed out that by such machinations the respondent no. 1 is trying to evict the appellant no. 1 from the tenement occupied by him. The learned counsel as such submits that the second substantial question of law framed by this Court is to be answered in favour of the appellants. Mr. Shirodkar, learned counsel further pointed out that as far as the appellant no. 2 is concerned, the said appellant was originally occupying an area of 106 square metres as a tenant and though he has purchased an area of approximately 84 square metres, he continued to be a tenant of the excess area. The learned counsel further pointed out that while passing the impugned judgment, the learned Judge has directed the demolition of such extension without considering that by such exercise the appellant no. 2 would be deprived of the tenancy right in respect of such tenement. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has not given any categorical findings as to whether there is a six metres wide access existing at the site. The learned counsel as such submits that the learned Appellate Court was not justified to grant prayer (b) of the plaint. The learned counsel further submitted that the learned Appellate Court has passed the impugned judgment by making a new case for the respondent no. 1 which is not at all justified in the facts and circumstances of the case.

I have carefully considered the submissions of the learned counsel and I have also gone through the records. The two basic contentions of Mr. Shirodkar, learned counsel appearing for the appellants are that as far as the appellant no. 1 is concerned, according to him by the impugned judgment, the said appellant would be evicted from the portion of the structure occupied by him as tenant in Chalta No. 264. On perusal of the impugned judgment at para 22, I find that the learned Judge has categorically stated that such access is to be maintained without prejudice to the tenancy right of the appellant no. 1. The learned Judge has further found that there is a space of 4.5 metres between the outer wall of the tenement occupied by the appellant no. 1 and the northern boundary of Chalta no. 264. The learned Judge as such came to the conclusion that the appellant no. 1 was not entitled to encroach upon any part of 4.5 metres beyond the northern wall of the tenement occupied by the said appellant. In such circumstances, the contention of Mr. Shirodkar, learned counsel appearing for the appellants that by the impugned judgment the learned Appellate Court has in fact evicted the appellant no. 1 from the part of the tenement cannot be accepted. The operative part of the judgment further clarified that such access of six metres is to be provided subject to tenancy right of the appellant no. 1. In such circumstances, the extent of access as far as the appellant no. 1 is concerned has clearly been specified to be 4.5 metres from the northern wall of the tenement and the northern boundary of the property under Chalta no. 263. As such, the contention of Mr. Shirodkar, learned counsel appearing for the appellants to the effect that the effect of the judgment would mean that the appellant no. 1 would have to demolish the part of the tenement cannot be accepted. The second substantial question of law stands answered accordingly.

As far as the next contention of Mr. Shirodkar, learned counsel appearing for the appellants to the effect that the appellant no. 2 was occupying a part of the structure as a tenant and the remaining portion as a mundkar cannot find any foundation in the pleadings of the appellant no. 2. In fact, the appellant no. 2 has not even stepped into the witness box and filed a common written statement along with other defendants. The learned Judge at para 23 of the judgment has categorically stated that the appellant no. 2 has no right to occupy any area beyond the structure purchased by him pursuant to a sale deed executed in his favour by the respondent nos. 1 and 2. The learned Judge has also noted that even in the said sale deed plot purchased by the appellant no. 2 has been identified as plot no. (C) as six metres width area is reserved on the northern side. On the face of such facts and circumstances of the findings arrived at by the learned Appellate Court as no perversity has been disclosed or shown by the appellants in the present second appeal, the question of interfering in such findings by this Court u/s 100 of CPC does not arise at all. In such circumstances, once the Court has found that the appellants are not entitled for any area beyond the area which is purchased pursuant to the sale deed referred to in the impugned judgment, I find that the directions issued in the impugned judgment does not call for any interference. The third and fourth substantial questions of law are answered accordingly.

Subject to the above observations, the appeal stands rejected.