2013 Supreme(Bom) 1224

In the High Court of Bombay at Goa
A.P. LAVANDE, J.
Yoshita R. Rivankar and her husband & Others
Versus
Mrs. Sunita Haldankar & Others
Second Appeal No. 36 of 2004
Decided On : 05-07-2013

Headnote:Civil Procedure Code, 1908 - Sections 96 and 100 - New plea in second appeal.

       Finding of trial Court, remained unchallenged in first appeal, becoming final, cannot be challenged in second appeal.

       Civil Procedure Code, 1908 - Section 100. - Second Appeal.

       Against judgment and decree dated 8.12.2003 of first Appellate Court, dismissing appeal filed by appellants against judgment and decree dated 27.9.2001 of trial Court, dismissing suit for recovery of possession and mesne profits filed by appellants - Conte ntion that first Appellate Court wrongly framed point for determination as both Courts below after having recorded finding in favour of plaintiffs regarding title of suit property and negatived claim of defendants to suit property by way of adverse possession, could not non-suited plaintiffs - Both Court below fallen in error - Plaintiffs having proved title in suit property, both Court below wrongly non-suited plaintiffs even after holding that defendants not proved better title - Both Courts below erred in dismissing suit - Impugned judgment and decree quashed and set aside - Suit decreed in terms of prayer clause (a) - Appeal partly allowed.

       LIMITATION ACT, 1963 - Article 65 - Suit for possession on basis of title.

       Where Courts below recorded concurrent finding that plaintiffs established their title therefore plaintiffs entitled to relief of possession. - It is extremely difficult to accept the submission made inasmuch as none of the respondents in the first appeal urged before the lower appellate Court that finding of title in favour of appellants/plaintiffs was unsustainable in law. The respondents/defendants neither filed cross-objections nor urged before the first appellate Court that the finding of title in favour of the plaintiffs was unsustainable in law. Therefore, the said finding has become final and is not liable to be disturbed at the instance of respondents/defendants in the Second Appeal preferred by the appellants/plaintiffs. Heavy reliance has been placed on behalf of the respondents on so called admissions given in the cross- examination of PW 1. In the cross-examination, he stated as under "the said one block occupied by all of us was obtained on lease by me, defendant No. 1 and brother Narcinva." On the basis of above statement, it was argued that even if it is assumed that plaintiffs had title to the suit property in terms of sale deed executed in the year 1943 in favour of plaintiff No. 1, yet the defendants have proved their title by way of lease in respect of one block in possession of the defendants .

       It is not even the case of the defendants in their evidence that thereafter they continued to be in possession of one block as tenants. If in case the defendants also were in possession of one block in the suit premises as tenants they were bound to pay rent to the landlord. There is not even a whisper in the cross- examination of plaintiff No. 1 or in the evidence led by the defendants in this regard. In this factual background and having regard to the provisions of Transfer of Property Act, Single Judge held that there is prohibition of eviction of tenants and theory of surrender of tenancy or lease must be proved by advancing it and that there is presumption that tenancy continued. In Court’s considered view, the judgment in the said case does not advance the case of the respondent Nos. 8 and 9.

       Once title of the plaintiff is established, unless defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. In the present case, the claim of adverse possession as set up by defendants has been negatived. Therefore, the suit filed on the basis of title is covered by Article 65 of the Limitation Act, 1963 and, as such, the suit filed in the year 1978 for recovery of possession, is very much maintainable.

       No doubt, both the Courts have concurrently held against the appellants/plaintiffs, but it is pertinent to note that both the Courts below recorded a finding of title in respect of the suit property in favour of the plaintiffs and have non-suited the plaintiffs on the sole ground that the plaintiffs have not been able to prove permissive user of the premises of the three blocks in possession of the defendants. In both the Courts have fallen in error. Once the title of the property in the suit property is proved unless the defendants setup a better title, the plaintiffs cannot be non-suited, therefore, the ground on which the plaintiffs have been non-suited by both the Courts below, is patently unsustainable in law.

       The plaintiffs having proved the title in the suit property both the Courts could not have non-suited the plaintiffs after holding that the defendants also have not proved better title.