IMPORTANT POINT
Litigation should not be permitted to tend to vexatious level.

A.H. Joshi, J.—Appellant has tendered paper book, which is taken on record. By consent of parties, appeal is taken up for final hearing.

2. This appeal arises out of Short Cause Suit No.568 of 1984 from the court of City Civil Court, Bombay.

3. Albert Sebastian D’Aguiar was original plaintiff. Defendant is his real brother. He filed the suit. The story contained in the plaint is summarised as follows:

(a) Suit property was owned by plaintiff’s father. Plaintiff got it on the basis of gift deed.

(b) Other incidental facts are not material for decision, hence, those are not mentioned. Plaintiff’s name was recorded.

(c) Defendant resided in the said property since father’s time. Defendant has been helping the plaintiff in collecting rent and certain aspects of management of the property.

(d) Thereafter plaintiff resumed management including collecting of rent.

(e) On 14.4.1983 plaintiff requested the defendant to quit. Defendant failed.

(f) Plaintiff served notice through Advocate which is dated 10.05.1983. It was replied by defendant. In the reply the defendant set up a plea which reads thus:

“Please note that my client is amply protected under the provisions of Bombay Rent Control Act and your client has no right, to call upon him to vacate the same. Please note that inspite of all this if your client still continues giving such threats he will have to face dire consequences.”

(quoted from letter of Defendant’s Advocate page 85 of paper book)

(g) Plaintiff again served notice through Advocate. Denied the contentions and due to failure of defendant to vacate, filed suit for possession.

4. After death of plaintiff, the suit is continued by legal representatives, who are present respondents.

5. Defendant resisted the suit. In the written statement the defendant set up a plea of tenancy which he had disclosed in reply to notice. Crucial paragraphs of plaint referring to antecedent incidents are evasively denied.

6. Defendant set up two alternate pleas, one of which was incorporated by amending the plaint. It would be convenient to refer to said alternate plea by quotation, which reads as under:

“10A. The Defendant states that the Plaintiff claims to be the owner of the suit property on the basis of an alleged Gift Deed dated 22.10.1969 and has filed the above suit against the Defendant on the basis of trespass.

10B. The Defendant states that his other brother namely Felix S.D.’ Aguiar and two other brothers have filed a Suit in this Hon’ble Court being S.C. Suit No.1689 of 2003, for a Declaration that the said Gift Deed dated 22.10.1969, is illegal, fraudulently unenforceable and void and for other relief.

10C. The Defendant submits that if the said S.C. Suit No.1689 of 2003 is decreed and the Gift Deed is set aside, the Defendant will not be tenant of the Plaintiff but a co-owner of the suit property in his own right. The Defendant’s right to the suit property will be that of a Co-owner and not as a tenant as stated in Written Statement. The Defendant submits that on that ground also the plaintiff’s suit will have to be dismissed with costs.”

(quoted from Ex.B Written Statement page 15 of paper book)

7. The Defendant also set up an alternate plea which was incorporated not in the written statement but in subsequent submissions etc. by way of adverse possession.

8. It is pertinent to note that the defendant carried legal proceedings, namely, Suit No.1689 of 2003 for declaration that the defendant is not tenant but the owner of the property and also that the gift deed dated 12.10.1969 is illegal, fraudulent etc.

9. Admittedly, the plea of tenancy as well as co-ownership were lost by the defendant, since the defendant lost the said suit and it has attained finality.

10. In the hearing of the suit the plaintiff

1(e) filed affidavit of examination in chief for the plaintiffs. The plaintiffs have thereby made an effort to prove the documents which were relied upon by the plaintiffs. Plaintiff l(e) was cross