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In the High Court of Bombay at Goa
V.M. KANADE, J.
Narayan Ram Shet Shirodkar
Versus
Dr. Rajiv Fondu Gude
Second Appeal No. 106 of 2003
Decided on : 06-05-2013
Where finding of trial Court that defendant was in possession of suit premises in capacity of tenant, was established on basis of evidence on record hence finding by first appellate Court that defendant was rank trespasser, not sustainable. - The lower appellate Court has discarded receipt book which has been produced by the defendant. The said receipt book admittedly is in the handwriting of plaintiff’s father. There are several entries which show that the father of the plaintiff had accepted various sums from the defendant from time to time and prior to that from one Purushottam. The documentary evidence on record indicates that the defendant was in possession much before the complaint was filed by the plaintiff’s father. The lower appellate Court, therefore, has completely erred in coming to the conclusion that the defendant was a rank trespasser and that he was not entitled to occupy the suit structure. The documentary and oral evidence which has been brought on record is directly contrary to the case of the plaintiff that when the plaintiff and his mother had gone to Shiroda in December, 1990, they saw that defendant opened the suit structure and was sitting in the same and when they asked the defendant as to why he had opened the suit structure, defendant assaulted PW 1/plaintiff and his mother PW 2. The lower appellate Court, therefore, had completely misread the evidence and, as such, the said finding of the lower appellate Court that the defendant is a rank trespasser is liable to be set aside. So far as the judgments on which reliance has been placed by the plaintiff who is appearing in person are concerned, there cannot be any dispute regarding the ratio of the said judgments. However, ratio of the said judgment is not applicable to the facts of the present case.
Plaintiff has not succeeded in establishing that the defendant, the appellant herein is a rank trespasser and, therefore, trial Court had rightly dismissed his suit.
Civil Procedure Code, 1908 - Order XLI, Rule 27, Section 100. - Second appeal - Against judgment and decree dated 3.5.2003 of Lower Appellate Court, allowing appeal filed by plaintiff against dismissal of suit for restoration of possession and recovery of against defendant-appellant, by trial Court for want of jurisdiction - Contention that - Lower Appellate Court erred in discarding finding of trial Court that defendant in possession of suit structure as a tenant and in rejecting application of appellant-defendant for production of additional evidence in terms of O rder XLI, Rule 27 of Code - Lower Appellate Court erred in holding defendant a rank trespasser and not entitled to suit structure - Documentary and oral evidence on record clearly contrary to case of plaintiff - Findings of Lower Appellate Court liable to be set aside - Dismissal of suit by trial Court justified - Impugned judgment and decree set aside - Judgment and decree of trial Court restored - Second appeal allowed.
1. Appellant has filed this second appeal challenging the judgment and order passed by the Additional District Judge in Regular Civil Appeal No.85 of 2002 dated 03/05/2003. By the said judgment and order, the learned Additional District Judge, Panaji was pleased to allow the appeal and the judgment and decree passed by the Civil Judge, Junior Division, Ponda in Regular civil Suit No.81/99/B was set aside.
2. Brief facts are as under:-
3. Respondent No.1 is the original Plaintiff who instituted a suit in the Court of Civil Judge, Ponda, Goa against the Appellant/original Defendant for restoration of possession and recovery of mesne profit. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”.
4. The dispute was in respect of a structure in the property bearing Hissa No.1088 in Village Panchayat of Shiroda. The case of the Plaintiff is that his grandfather Rudraji Sinai Gude was, during his life time, running a shop in the suit structure “LOJA”. It is the case of the Plaintiff that after the death of his grandfather, the said “LOJA” was kept closed and in the month of November, 1988 Defendant, taking advantage of the continuous absence of his father Fondu who was residing in Mumbai on account of service, forcibly and illegally opened the lock and occupied the said “LOJA”. Thereafter, Plaintiff's father lodged a complaint with the Village Panchayat of Shiroda. Plaintiff's father Fondu died on 06/08/1999. According to the Plaintiff, when they visited the shop, they found that it was opened and when he made inquiries, Defendant filed a false complaint against him and his mother and, as a result, criminal proceedings were initiated against them. They were, however, acquitted of the offence with which they were charged by the judgment and order dated 08/03/1994. The suit was filed by the Plaintiff in 1999 alleging that the Defendant was not a lessee but a rank trespasser and, therefore, he was liable to be evicted. Plaintiff also claimed to recover the mesne profit for his illegal and unauthorized occupation @ Rs 200/- per month. Defendant filed his Written Statement and claimed that he was a tenant in respect of the suit property and that the Civil Court has no jurisdiction to entertain the suit. It is contended that the suit structure was let out to him by the father of the Plaintiff in 1973 and that since then he is in continuous possession of the suit structure . It has been contended in the Written Statement that, initially, rent in respect of the said premises was Rs 70/- but it was subsequently reduced to Rs 60/- and the event of rent was acknowledged by Fondu in his book in his own handwriting. It has been further contended that prior to creation of lease in favour of Defendant, the suit premises/structure was occupied by Purushottam as a haircutting saloon and also for running tailoring business since the time of its construction. According to the Defendant, he was using the structure for the purpose of storing fertilizer, cashewnut, coconut and other material. He denied that he has forcibly and/or illegally occupied the suit structure as alleged by the Plaintiff, the Respondent herein. He contended that the Plaintiff and his mother tried to forcibly dispossess him and, therefore, he had lodged a complaint against the Plaintiff and his mother.
5. The Trial Court dismissed the suit by holding that the Defendant was a lessee of the suit premises “LOJA” and the suit was dismissed for want of jurisdiction. Against the said judgment and order, the Plaintiff filed first appeal in the District Court. During pendency of the appeal, Defendant filed an application for bringing additional documents on record viz. (a) copy of Lease Agreement, (b) Verification Certificate issued by Weights and Measures, (c) Registration Certificate issued under Shops and Establishment Act and (d) Certificate issued by the Directorate of Agriculture dated 08/06/1994. The Additional District Judge was pleased
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