Shri Udesh Naik vs Shri Hondu Alias Navnath Yeshwant Naik

F.M. Reis, J.—Heard Shri N. Sardessai, learned Counsel appearing for the appellant and Shri P.S. Rao, learned Counsel appearing for the respondent. The above Second Appeal challenges the judgments and decree passed by the Courts below whereby the suit filed by the respondent as well as counter claim filed by the appellant came to be dismissed. The Lower Appellate Court whilst passing the impugned judgment has come to the conclusion that both the parties have not been able to establish their exclusive possession of the suit property nor their respective claims of title with regard thereof. The learned Judge relying upon the judgment of the Apex Court reported in 2009 AIR SCW 2692 in the case of Anathula Sudhakar Vs. P. Buchi Reddy, has dismissed the suit for injunction simpliciter as well as the counter claim keeping the issue of title open.

Shri N. Sardessai, learned Counsel appearing for the appellant has essentially assailed the impugned judgment on the ground that while holding that the additional issue No. 2 stands deleted, the lower Appellate Court has answered additional issue No. 1 in favour of the respondent. Learned Counsel further pointed out that there are rival claims of the appellant and respondent that they are the children/descendants of the deceased Yeshwant Naik. The learned Counsel further pointed out that as the issue No. 2 which has been decided against the respondent by the trial Court has been dropped, it was incumbent upon the learned Appellate Court to also drop additional issue No. 1 which has been decided by the learned trial Judge in favour of the respondent and keep the rival contentions with that regard open to be adjudicated if any subsequent substantive proceedings are initiated to their claim of title. Learned Counsel has taken me through the impugned judgment of the lower Appellate Court and pointed out that the lower Appellate Court on the basis of marriage certificate has come to the conclusion that the respondent No. 1 is the son of the said deceased Yeshwant Naik. Learned Counsel has further pointed out that the said marriage certificate was not of said Yeshawant Naik, but of one Bai and there is no discussion at all by the lower Appellate Court as to how the said marriage certificate would inher to the benefit of the respondent. The learned Counsel, as such, submitted that there is a substantial question of law which requires consideration by this Court.

On the other hand, Shri P.S. Rao, learned Counsel appearing for the respondent has supported the impugned judgment. Learned Counsel has pointed out that both the Courts below have come to the concurrent finding of fact to the effect that both the parties have failed to establish their exclusive possession to any portion of the suit property. Learned Counsel pointed out that the lower Appellate Court had rightly dropped issue No. 2 and kept the contentions therein open to be adjudicated in any subsequent substantive proceedings initiated by the parties. The learned Counsel further pointed out that the respondent is the son of the deceased Yeshwant Naik and, as such, he is entitled for the suit property. Shri Rao, learned Counsel appearing for the respondent fairly conceded that just like issue No. 2 has been dropped additional issue No. 1 can also be dropped and finding of both such issues can be quashed and set aside and the rival contentions raised by the parties on that count can be kept open.

After going through the records and considering that both the Courts below have concurrently held that both the parties have failed to establish their exclusive possession over any portion of the suit property and refused the reliefs in the suit and counter claim, I find that no substantial question of law arises in the present appeal. On such findings of facts the lower Appellate Court has kept the issue of title open in any subsequent substantive proceedings initiated by any of the parties but however, considering the submissions of both the learned Counsel appearing for the parties, I find that as issue No. 2 has been dropped the lower Appellate Court ought to have dropped additional issue No. 1 as well. Taking note of the contentions of Shri Rao, learned Counsel for the respondent the additional issue No. 1 is dropped and as such the finding on additional issue nos.1 & 2 shall not come in the way of both the parties to establish their respective claims of title in any subsequent substantive proceedings initiated by any of them. The findings of additional issue nos.1 & 2 by the learned trial Judge are accordingly quashed and set aside, by consent and both the said issues stand deleted. Subject to the above, I find that no substantial question of law arises in the above appeal for consideration u/s 100 of the Civil Procedure Code. Hence, the appeal stands accordingly dismissed.