-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 4 OF 2002 Chandrakant Rama Morajkar, Since deceased through Lrs 1. Mrs. Mangala G. Dabholkar 2. Mr. Gajanan N. Dabholkar both r/o. A/1 Madhuri Co-op. Hsg. Society Ltd., Shantawadi, Opp. J. P. Road, Andheri – West, Mumbai – 400 058. 3. Mr. Bhivrao Morajkar 4. Mrs. Vinita B. Morajkar both r/o. 83/7, Angod, Mapusa 5. Mrs. Usha G. Mayekar 6. Mr. Ganesh S. Mayekar both r/o 5/1A, Vivek Niwas, Sai Baug, Bhandup Village Road, Bhandup West, Mumbai – 400 078. 7. Mrs. Vidya G. Naik Tari, 8. Mr. Gajanan Naik Tari 9. Mr. Satish Morajkar 10.Mrs. Shruti S. Morajkar both r/o D/77, Ekta Nagar, Near Sai Baba Temple, Housing Board Colony, Mapusa. …... Appellants V e r s u s 1. Mr. Vinayak Chodankar 2. Mrs. Seema Vinayak Chodankar 3. Mrs. Godavari Chodankar all major of age, all r/o.House No.84, Ward No. 7, Angod, Mapuca-Goa. (Addresses are registered) …... Respondents Mr. R. G. Ramani, Advocate for the Appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the Respondents. -2- Coram :- F. M. REIS, J Date : 9 th September, 2011. ORAL JUDGMENT Heard Shri Ramani, learned Counsel appearing for the Appellants and Shri S. D. Lotlikar, Senior Advocate, appearing for the Respondents. 2. The above Appeal is admitted on the following substantial questions of law : (1) Whether without recording a clear finding as to what right under which the respondents were residing in the suit premises, the learned Addl. District Court was justified in setting aside the trial Court's decree merely because it found the respondents to be residing in the suit premises over a period of time and not from 1992 as claimed by the Appellant ? (2) Whether, in the absence of any consent on the part of the appellant or recognition of the respondents by the appellant as their mere long occupation of the suit premises alongwith the admitted tenant Laxmi Kamulkar in whose name alone the rent receipts were issued, could confer a right on the respondents to continue to occupy the suit premises after 10.11.92 when the said Laxmi expired ? -3- 3. With regard to the first Substantial question of law, the Appellate Court whilst passing the impugned Judgment has come to the conclusion that the cause of action on which the suit was filed by the Appellant was not established by the Appellant. On perusal of the plaint, the suit filed by the Appellant is on the premise that the Respondents have trespassed into the suit premises in the year 1993 after the death of the original tenant Laximi Kamulkar. The learned Appellate Court after appreciating the evidence on record and examining the documentary evidence adduced, has come to the conclusion that the said cause of action has not been established by the Appellant. The learned Judge has relied upon the documentary evidence adduced by the Respondents in the nature of electricity bills, electoral rolls, etc., which admittedly stand in the name of the Respondent to come to the conclusion that the Respondents were occupying the suit premises more than 20 years prior to the death of the said Laximi. As such, the learned Judge found that as the cause of action has not been established, the Appellant was not entitled for any reliefs. 4. Before dealing with the said substantial question of law, it would be appropriate to state in short the controversy between the parties in the above Appeal. The Appellants filed the suit for the recovery of possession, damages, mesne profits and permanent injunction against the present Respondents claiming that he had given on lease a portion of his chawl like structure/house bearing no. 84/7 located in the property surveyed under no. 224 and 228 of P. T. Sheet no. 147 of Mapusa City to one Laximi Kamulkar and that the portion occupied by her was one distinct chawl no. 225. It was further the case of the Appellants that the other structures being distinct chawls, were occupied by other persons on lease and that -4- the entire house belonged to him. The said Laximi was occupying the chawl as a tenant on a payment of monthly rent of Rs.7.5 for the said premises which are referred to as the suit premises. It is further the contention of the Appellants that upon the death of the said Laximi, during his visit, he found the Respondents occupying the suit premises and, as such, filed the above suit for appropriate reliefs. 5. The Respondents filed their written statements opposing the contentions of the Appellants and pointed out that the Civil Court has no jurisdiction to deal with the case as they were tenants of the suit premises. It was further their case that the Respondents were residing in the suit premises along with the said Laximi as tenant for the last 31 years and that the last rites of the said Laximi were performed by them being the sister of the Respondent no.3. It is further their case that the rents were always been paid to the Appellants in respect of the suit premises upto July 1990 by the Respondents although in the name of Laximi. It is further their case that the Appellants have no cause of action to maintain the suit and prayed that the suit be dismissed. 6. By Judgment and Decree dated 06.03.2000, passed by the learned Civil Judge, Junior Division, Mapusa, the suit was partly decreed and, inter alia, directed the Respondents to hand over the vacant possession of the suit premises to the Appellants and restrained them from interfering with the suit premises and ordering the payment of Rs.7.50 per month from the date of filing of the suit upto actual possession. -5- 7. Being aggrieved by the said Judgment, the Respondents preferred an Appeal before the learned Addl. District Judge being Regular Civil Appeal no. 74/2000, which by Judgment and Decree dated 27.07.2001, was allowed and the impugned Judgment and Decree passed by the learned Trial Court was set aside and the suit filed by the Appellants came to be dismissed. Being aggreived by the said Judgment and Decree, the Appellants have preferred the present Appeal which was admitted on the aforesaid substantial question of law. 8. Whilst passing the impugned Judgment, the Lower Appellate Court has come to the conclusion that there was no dispute with regard to the ownership of the Appellants over the suit premises. The learned Judge further held that the Appellants had come with a specific case that the Respondents started occupying the suit premises from 10.11.1992 without any right but after going through the evidence on record, the learned Judge found that there was no dispute that said Laximi came to reside in the said chawl somewhere in the year 1962 or 1963 and on perusal of the material on record specially the rent receipts and the money orders sent by the Respondents which have been accepted by the Appellants, the learned Judge found that the claim of the Appellants that the Respondents were trespassers cannot be believed. The learned Judge also noted that the names of the Respondents were found in the electoral rolls and that the suit premises were electrified at the instance of the Respondents. The learned Judge came to the conclusion that there was no material to substantiate the claim of the Appellants that the Respondents were occupying the suit premises for the first time from November, 1992. Considering the said finding which are based on material on record the Lower Appellate Court found that the Appellants have failed to establish -6- the cause of action in filing the suit. The Lower Appellate Court has further found that occupation of the Respondents dates back very much prior in the point of time with the one alleged by the Appellants in the plaint. 9. Considering the findings of the Lower Appellate Court, I find no infirmity committed by the learned Judge whilst passing the impugned Judgment. The Appellants have come with a specific case in the plaint which has not been established and as such it is not open for the Appellants to claim the relief on the basis of facts which are not found in the pleadings. In the present case, it is not in dispute that said Laximi was a tenant of the suit premises. The evidence discloses that the Respondents were residing in the suit premises along with said Laximi for a considerable period of time prior to her death. As the Appellants have not disclosed in the pleadings the status in which the Respondents were occupying the suit premises during the said period, would by itself suffice for the Court to come to the conclusion that the Appellants had failed to establish his cause of action in the suit. 10. But, however, the finding of the Lower Appellate Court at Para 16 of the impugned Judgment to the effect that the possession of the Respondents was adverse to the interest of the Appellants, is uncalled for considering the fact that it was not the case of the Respondents that such possession was adverse to that of the Appellants. The said findings of the Lower Appellate Court to that limited extent is set aside. 11. As such, in the facts and circumstances of the case as the Appellants have failed to establish the cause of action, there was no reason for the Lower -7- Appellate Court to record a finding as in what right under which the Respondents were residing in the suit premises. 12. With regard to the second substantial question of law, in view of the findings rendered whilst deciding the first substantial question law Shri Ramani, learned Counsel appearing for the Appellants has pointed out that he will not press for a finding on the said substantial question of law as according to him any such finding thereon may affect any further proceedings which may be initiated by the Appellants against the Respondents in connection with the suit premises. Hence, the substantial question of law is answered as not pressed by the Appellants. 11. In view of the above, I find no merit in the above Appeal and as such the Appeal stands dismissed with no Order as to costs. F .M. REIS, J. arp/*