Back
BOMBAY HIGH COURT
R.D. Dhanuka, J.
Madhukar —Appellant
versus
Nanda Madhukar Yene and Anr. —Respondents
Second Appeal No.746 of 2013 along With Civil Application No.1541 of 2013
Decided on 10.10.2016
Counsel for the Parties:
For the Appellant:K.P. Shah, Advocate
For the Respondents:Tejesh Dande, Advocate
IMPORTANT POINT
Defendant cannot raise any such issue in second appeal which has attained finality.
Headnote:Property Law—Title Suit for possession of flat—Plaintiff was owner of suit flat—Plaintiff had prayed for amendment before first appellate Court—First appellate Court having found that there was no objection to amendment, allowed amendment on the issue of possession and framed two additional issues regarding possession and had remanded matter back to trial Court for rendering findings on those two additional issues—Defendant no. 2 did not challenge said order allowing amendment to plaint—Since defendant no. 2 did not challenge order passed by first appellate Court allowing amendment and claim for possession of suit flat and framing additional issues, defendant no. 2 cannot be allowed to urge this issue for first time in second appeal—Order of amendment passed by first appellate Court in favour of plaintiff has attained finality and cannot be challenged across bar at this stage—Appeal dismissed. (Paras 22 to 28)
Result: Appeal dismissed.
R.D. Dhanuka, J.—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 instalment 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
