-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 29 OF 2009 Saraswati Bhimraoji Mankar .vrs. Sunil Harishchandra Mankar and another ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : MARCH 19, 2009. The matter was heard yesterday it was found that appellant / plaintiff was claiming possession on the basis of title and this was overlooked by both the Court. After considering the question, parties were given to understand that the Court will decide the Second Appeal finally at the stage of admission itself, as it was found that neither Trial Court nor lower Appellate Court have properly addressed it. It was noticed that Trial Court only framed issue – whether plaintiff was entitled for decree of possession of suit premises ? While the lower Appellate Court framed only one point and that point is – Whether Trial Court erred in dismissing the suit ? -2- Shri S.V. Sohoni, learned Counsel appearing for appellant has pointed out that, sale deed of suit premises is in the name of plaintiff who at the time of institution of suit was aged about 85 years. She wanted possession of those premises and the defence of respondents/defendants who are her grand-sons was that the plaintiff was never in possession and since life time of their father they were in possession. Advocate Shri Sohoni, contended that this story was not sufficient to deny the possession of suit premises to the appellant / plaintiff. Shri M.R. Johrapurkar, learned Counsel for respondents on the other hand has pointed out yesterday that the story of appellant / plaintiff was very specific. He contended that she was doing business and out of the business she purchased the suit premises. He further stated that she claimed that she was doing business even in suit premises and she was dispossessed of her business by her grand-sons on 26.02.2002. He urged that in view of this dispossession, she sought restoration of possession. According to him, both the Courts have concurrently found that she could not prove her dispossession and therefore, her suit for possession has been rightly dismissed. In the alternative, the counsel contended that the respondents/defendants have also pleaded -3- that they were in possession and doing business in the suit premises as owner thereof since life time of their father. Attention is also invited to assertion in plaint that her son Harishchandra [father of defendant] were driven out in 1991, after the death of his wife and he came and started residing with plaintiff and both of them were residing and doing business in the said shop. After hearing both the learned counsel, I find that, fact that sale deed Exh.28 is in the name of plaintiff is not in dispute. The Trial Court has found that the story of plaintiff that she was residing in suit premises along with father, is incorrect, because in that event the custody of original sale deed would have been with her. It is also observed that, if she had purchased the suit shop out of her own income, then sale deed would be with her at the house of Nilkanth. It is also noticed that she demonstrated that she was residing with father of defendant when the suit shop was purchased. All this evidence is hardly of any relevance when the Courts have not considered the entire controversy between the parties. Though plaintiff claimed that she purchased the suit shop out of her own income, the fact remains that sale deed was in her name and hence if it was to be presumed that the shop was purchased by her son -4- Harishchandra in her name for the benefit of his family, evidence in that respect ought to have come on record. There is no such evidence on record. Similarly, the contention of present respondents that they were in possession of suit shop since life time of their father and they were carrying on business in it and have perfected their title to it by adverse possession is not fully evaluated and no finding is recorded that plaintiff lost her title or then the defendants perfected their title. I find that there are some other aspects relevant to this controversy and as the Trial Court did not frame proper issues, those aspects have not been gone into. The parties did not got opportunity to lead any evidence on those aspects. The first question was – whether Exh.28 though in the name of plaintiff was meant for the benefit of entire family of Harishchandra. The second question – whether defendants were exclusively in possession of suit shop and their possession was hostile to plaintiff, and the third question was – in this background whether the plaintiff prove that in 1991 after death of his wife, Harishchandra was expelled by defendant and he started residing with plaintiff. As all these questions are not formulated as issues, I find that no specific finding on any of these -5- issues have been recorded. Accordingly by holding that plaintiff failed to prove her dispossession or that defendants established their possession or that, they were conducting business in the suit shop, that by itself would not be and could not be sufficient to deny the relief of possession to title holder. In the circumstances, I find that the judgment and decree delivered by the 8th Joint Civil Judge, Junior Division, Wardha on 8.12.2005 in Regular Civil Suit No.146/2002 is un-sustainable. Similarly the appellate judgment and decree dated 24.10.2008 delivered by the Adhoc District Judge-II, Wardha in Regular Civil Appeal No. 2/2006 is also unsustainable. With the result, both the judgments and decrees are quashed and set aside. Proceedings in Regular Civil Suit No.146/2002 is restored back to the file of 3rd Joint Civil Judge, Junior Division, Wardha for its fresh trial in accordance with law, after giving parties opportunity to amend their pleadings and to adduce fresh evidence, if any. Trial Court shall frame proper issues after the pleadings are completed in the light of the observations made above. As the suit is of the year 2002, and is sent back, the trial Court to decide the same as early as possible and in any case by 31.07.2010. However, it is made clear that as the matter is being sent back, -6- this court has not recorded any finding conclusively on any issue and by way of abundant precaution it is made clear that the trial Court shall not be influenced by any of the reasons given by this Court, while trying the suit on merits. Second Appeal is accordingly allowed, with no order as to cost. JUDGE Rgd.