Second Appeal no.61 of 1995. 1 IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY, NAGPUR BENCH NAGPUR. SECOND APPEAL NO. 61 OF 1995. APPELLANTS: 1. T.Ramlingam s/o Thuwel Swami Pillay, aged about 50 years, Occu: Service (deleted) 2. Susairaj s/o Ramlingam Pillay, aged about 25 years, Occu: Service, Both are resident of Azad Chowk, Sadar, Nagpur. : VERSUS : RESPONDENTS: 1. Eble Egnesis s/o A.Anand, aged about 32 years, Occu: Service, r/o Office of the Executive Engineer, Nagpur, Electrical Division P.W. & H.Department, Civil Lines, Nagpur. 2. Francina w/o Francis, aged about 55 years, Occu: Household, r/o Azad Chowk, Sadar, Opp.Bardhan's House Sadar, Nagpur. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.R.L.Khapre, Advocate for the appellant. Mr.P.S.Sadavarte, Advocate for the respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Second Appeal no.61 of 1995. 2 CORAM: C.L.PANGARKAR,J DATED : 25th March, 2008. ORAL ORDER: 1. This second appeal is at the instance of the original plaintiff. The original plaintiff was unsuccessful in the trial court as well as the first appellate court. The parties hereinafter shall be referred to as the plaintiff and the defendant. 2. The facts shorn of details are as follows - The plaintiffs are the owners of house No.1091 at Sadar Bazar, Nagpur. Defendant no.1 is the near relative of defendant no.2. Defendant no.2 is the sister of the deceased wife of the plaintiff no.1 and plaintiff no.2 is son of plaintiff no.1. Defendant no.2 is the owner of the adjacent house No.1091. Plaintiff no.1 was married to one Babbi alias Francina daughter of Jesudas. The house belonged to Jesudas, who died in the year 1959 leaving behind him three daughters namely Babbi alias Francina, Arikomary and Second Appeal no.61 of 1995. 3 defendant no.2 Francina wd/o P.Francis. Arikomary was married to A.N.D.Anthony. He was an employee in the railways and was posted at Bhusawal. Anthony died in the year 1959 while Arikomary died in 1977. The couple had no child of their own. At the time of death, Arikomary was living with the plaintiffs in the suit house. Plaintiff nio.1's wife died in 1981. It is the contention of the plaintiff that upon death of Arikomary , who died issueless, her share devolved upon the plaintiffs and the defendant no.2. Defendant no.1 being the son in-law of defendant no.2 was allowed to occupy the ground floor portion of the house. The plaintiffs have terminated the licence of plaintiff no.1 but he did not vacate. Hence, the suit. 3. Defendant no.1 has filed written statement and has admitted the relationship. However, defendant no.1 denies that plaintiff no.1 was married to Babbi alias Francina. It is contended by defendant no.1 that marriage between plaintiff no.1 and Babbi was not valid. Plaintiff no.2 is not the legitimate son of Babbi. The defendant denies that Arikomary and Anthony died issueless. He Second Appeal no.61 of 1995. 4 denies that he is occupying the premises as a licensee. He submits that he has been occupying the premises as a owner thereof. 4. Defendant no.2 admits the entire claim of the plaintiffs. 5. The learned judge of the trial court framed issues. He found that plaintiffs were not the exclusive owner but were the joint owners along with defendants no.1 and 2. He, therefore, found that defendant no.1 was not occupying the premises as a licensee. He, therefore, dismissed the suit. 6. The learned judge of the first appellate court concurred with the findings of the trial court that the plaintiffs and defendant were co-owners, defendants were not, therefore, licensee. The plaintiffs were not, therefore, entitled to decree for possession. Having held so, he dismissed the appeal. Being aggrieved by that, the plaintiffs have preferred this second appeal. Second Appeal no.61 of 1995. 5 7. I have heard the learned counsel for the appellant and the respondents. 8. The Substantial question of law on which the appeal was admitted by this court is as follows - “Whether the defendants, in the absence of a plea that defendant no.1 has derived his title being a son of Arikomary could evict the title of the plaintiffs on the basis of the finding that he is the son of Arikomary ?” 9. There cannot be any doubt that the decision of the suit hinges only on the fact whether Arikomary died issueless. The plaintiffs have instituted this suit for eviction on a simple ground that defendant no.1 was allowed to occupy the house being son in- law of defendant no.2 and that he should vacate it. It must be borne in mind that a suit based on a relationship of a licensor and licensee is essentially a suit based on title. Once, the plaintiff establishes title and the defendant fails to prove his title, the defendant is bound to be evicted. The defendant has also contended that he is the owner of the suit house. Second Appeal no.61 of 1995. 6 10. The plaintiffs had amended the pleadings while the suit was pending. It was specifically alleged by the plaintiffs by amending the plaint that Arikomary died issueless. The plaint came to be amended because defendant no.1 tried to show by giving suggestion to the witnesses during cross-examination that he is the son of Arikomary. Defendant no.1 too amended his written statement denying specifically the allegations that Arikomary died issueless. The suit admittedly relates to the share left behind by Arikomary. Since there was specific averements about Arikomary having died issueless, that was the material question that should have been decided by the courts below. The trial court had framed issue whether the plaintiffs were the owners and defendant no.1 was the licencee. The trial court found that the plaintiffs and defendant nos.1 and 2 had share in house and therefore, the plaintiff could not evict defendant no.1. However, trial court while specifically discussing issue nos.1 and 2 observed that it is not recording any finding on relationship, since there is no issue on controversy whether Arikomary died issueless. Second Appeal no.61 of 1995. 7 11. Similarly, the appellate court has also formulated the point for determination in respect of ownership of the plaintiffs and defendant being a licensee. The appellate court has also not formulated any point for determination in regard to the controversy about Arikomary having died issueless. It seems from the pleadings of defendant no.1 that he claims that Arikomary had not died issueless. Naturally, defendant no.1 has a right to show that she did not die issueless, and who is her issue, and that would decide the material question. 12. Similarly, it appears to me that on the material propositions of fact also, no issues or points are formulated by the courts below. The plaintiffs have specifically pleaded that plaintiff no.1 was married to Babbi daughter of Jesudas. It is alleged that upon death of Arikomary her share came to Babbi and plaintiff no.1 being husband of Babbi i.e. Sister of Anthony and defendant no.2 being sister of Anthony, they have become the owners of the suit house. Defendant no.1 has challenged the validity of marriage between plaintiff no.1 and Babbi. Babbi is dead and plaintiffs claim Second Appeal no.61 of 1995. 8 through Babbi. It is further specifically alleged by defendant no.1 that Babbi and Francina are not the names of the same person. The defendants specifically denied that Babbi was at all married to plaintiff no.1. It is further contention of defendant no.1 that plaintiff no.1 had married defendant no.2. As seen earlier, it is clear that plaintiff no.1 claims that being husband of deceased Babbi he has inherited her share and that of Arikomary. The question as to whether the plaintiff no.1 is owner, could not have been decided without deciding the question of relationship of plaintiff no.1 and deceased Babbi, since he claims through Babbi. Both the courts below have ignored this aspect altogether. It, however, appears to me that the parties have not led evidence on this aspect since there was no specific issue on it. 13. It appears to me, therefore, that to finally and effectually adjudicate the dispute between the parties, two issues could be framed and remitted to the first appellate court to record its findings on them without disposing of this appeal. Second Appeal no.61 of 1995. 9 14. The following two points are, therefore, framed for decision of the appellate court. 1. Do plaintiffs prove that plaintiff no.1 was legally married to Babbi daughter of Jesudas ? 2(a) Whether Arikomary died issueless ? 2(b) If yes, what is the effect on the suit ? 15. Since the parties have not led sufficient evidence on these issues, it would also be necessary to direct the first appellate court to record the evidence on these two issues if the parties so desire and after recording the evidence, remit the findings on these two issues to this court within period of three months. Record and proceedings be sent to the first appellate court immediately. Parties to appear before the first appellate court on 15/4/2008. JUDGE. chute Second Appeal no.61 of 1995. 10