1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 756 OF 1999 FIRST APPEAL NO. 756 OF 1999 FIRST APPEAL NO. 756 OF 1999 1. Nandlal Gokul Kumbhar ] ] 2. Nadkishore Gokul Kumbhar ] Both Adult, Indian Inhabitant, ].. Appellants Residing at Cutting No.10, ](Orig.Defendants) Gokul Natgar, Subhash Chowk, ] Akurli Road, Kandivali (East), ] Bombay - 400 102. ] V/s. Shobnath Girdhari Kumbhar ] Prajapati, Hindu Adult, ] Indian inhabitant, Residing at ].. Respondent Cutting No.10, Gokul Nagar ](Orig.Plaintiff) Subhash Chowk, Akurli Road, ] Kandivali (East), ] Bombay - 400 102. ] Mr.A.V.Holmangi with Mr.A.R.Mishra for the Appellants. None for the Respondent. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. DATE : 1ST JULY, 2008. DATE : 1ST JULY, 2008. DATE : 1ST JULY, 2008. ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- . The present Appeal is filed by the Appellants challenging the final Judgment and order passed by the Bombay City Civil Court in Suit No. 7373 of 2 1987 on 23rd July, 1999. The present Appellants are original Defendants in Civil Suit and present Respondents are the original Plaintiff in the Civil Suit. 2. The present Respondent who was Plaintiff in the City Civil Suit is the paternal uncle of the present Appellants/Original Defendants. The Appellants/Original Defendants are brothers. The Plaintiffs as well as the Defendants originaly hails from state of Utter Pradesh. 3. It was the case of the Plaintiff / Respondent herein that he came to Bombay from state of Utter Pradesh and was working in Kamla Mills. He first live in Sion, than he took the suit premises from one Chandumal Jahagir (who has been examined as P.W.No.4). It is the Plaintiffs case that he was in exclusive use and occupation of the suit premises. Later on the Defendants came to Mumbai. They lived some times with one Rampyare at Kandivali. The Plaintiff had allowed the Defendants to live in the suit premises belonging to him temporarily. Prior to the filing of the suit, the Defendants threatened the Plaintiff who entered into the suit premises. 3 The Plaintiffs exclusive possession was thus threatened. 4. The suit was filed on 29th September, 1987 for injunction restraining the Defendants from entering into the suit premises. It was the Defendants case before the Bombay City Civil Court that they were in joint possession and order came to be passed at the initial stage of the suit that both the parties shall not disrupt the joint occupation of the other parties and shall maintain statusquo. It is the case of the Defendants that since then they are continue to live in the suit premises. The Defendant’s case is of joint ownership and joint possession. Both the parities have produced documents before the Bombay City Civil Court to show their possession. 5. The Plaintiff produced the certified extract of the electoral roll showing his name in respect of the suit premises as on 1st January, 1983. The Plaintiff had also produced a ration card, as ration card shows date 3rd March, 1983. It was the case of the Plaintiff before the City Civil Court, Bombay that all the documents produced by the Defendants are having dates after the filing of the suit. The 4 Defendants have not produced any documents prior to the filing of the suit though they claimed joint possession with the Plaintiff. It is now admitted fact that both the Plaintiffs as well as the Defendants are living in the suit premises. Joint possession as of now is therefore admitted. Joint possession as on the date of the suit has to be seen. 6. The Plaintiff claimed sole ownership. On the other hand, the Defendants claimed joint ownership. Both the parties produced the documents supporting their contentions that they are in possession of the suit premises. However, there is no documents on record showing the ownership of the suit premises. Even the Plaintiff has not relied upon any such documents in the Plaint. The premises are admittedly taken by the parties from one Chandumal Jahagir, P.W.4. His ownership of the premises is not been disputed. The fact that the Plaintiff came to Mumbai before the Defendants is also not been disputed. 7. The trial court on 11th June, 1998 framed the issues which are as under : 5 1. Whether the Plaintiff proves that he is the owner of suit premises, that is, a shed situated at Cutting No.10, Gokul Nagar, Subhash Chowk, Akurli Road, Kandivli (East), Mumbai - 400 101. 2. Whether the Plaintiff proves that he was in lawful actual use, occupation and possession of suit property on the date of filing of suit. 3. Whether the Defendants prove that they are joint owners of suit property and also in joint possession thereof. 4. Whether the Plaintiff is entitled to a declaration and injunction as prayed. 5. What order ? 8. The Plaintiff in support of his contention 6 examined himself. The Plaintiff also examined P.W.2 to show his place of service. He has also examined P.W.3, who is residing in the adjacent hut to show the purchase of the Plaintiffs hut and his possession therein. The Plaintiff had examined P.W.4, who is the admitted owner of the suit premises prior to his purchase of the suit premises. . The Defendants examined himself and also examined D.W.2, D.W.3 and D.w.4 to prove the purchase of the suit premises. 9. While dealing with the issue No.1, the learned Judge discussed the evidence produced by the Plaintiff as well as the Defendants. It is recorded in the evidence that the Plaintiff came to Mumbai in 1974-75 and initially he lived in Sion and thereafter he purchased the suit premises from Chandumal Jahagir, P.W.4 for Rs.4,000/- (Rs.Four Thousand only). The Plaintiff deposed that he purchased it under a writing which was in the form of affidavit, the same affidavit has been lost. There is no any other writing which the Plaintiff has been relied on in this plaint. The Plaintiff further deposed that he repaired the hut at that time the Defendants were 7 not in Mumbai. According to Plaintiff, Defendant No.1 came to Mumbai first time in the year 1984 and Defendant No.2 came in 1985. It is observed by the learned Judge that it is admitted fact that the premises were purchased from Chandumal Jahagir and the Plaintiff has not been cross-examined on the aspect of the purchase of the property. The cross-examination therefore does not shows specifically that there was any writing. However, it was transpired from the evidence laid by all the parties read together that there was indeed no writing as no parties had mentioned of any writing. It is further observed that the fact that the Plaintiff repaired the hut after the purchase has not been challenged by the cross-examination by the Defendants. 10. It is further discussed by the trial Judge that, P.W.3 is the neighbour of the adjacent premises, has deposed that Plaintiff came into his room in 1980-81. He has got his room from Chandumal Jahagir. That aspect has not been disputed by the Defendants. It is further stated by the P.W.3 that the Plaintiff purchased his room in 1982-83. He has further deposed that the Plaintiff is living their 8 alone and the Defendants came to live there after 2-3 years. It is further observed by the Trial Judge that in the entire elaborate cross examination of the P.W.3, the basic facts narrated by him have not been shaken. 11. The Trial Court further discussed the evidence of P.W.4 and referred his deposition that he sold one part of his suit premises to P.W.3 and other part to the Plaintiff. Both for Rs.4,000/- (Rs.Four Thousand only) each in cash in 1983. He has not executed any writing. In his cross-examination he deposed that he had constructed the structure in 1980. He was a carpenter, he had partitioned his hut so he could sale one portion to P.W.3 and other to Plaintiffs. He deposed that he sold one portion in few months before he sold the other portion. . It is observed by the Trial Court that in cross-examination of P.W.4 nothing could be brought on record by the Defendants that the premises were sold by the P.W.4 to the Plaintiff as well as Defendants jointly. On the contrary, in cross-examination of P.W.4, he specifically denied that the suit premises were sold to the Plaintiff as 9 well as Defendants jointly. 12. The Trial Court appreciated the evidence of the Defendants qua-ownership and observed that no documentary evidence is brought on record by the Defendants to show that the suit property is purchased jointly by the Plaintiffs and Defendants. The Trial Court taking into consideration the evidence of Defendants as well as D.W.1, D.W.2, D.W.3 and D.W.4 which were examined on behalf of the Defendants held that the propety was not purchased jointly. Further, considering the entire evidence produced by the Plaintiff as well as Defendants, the learned Trial Judge came to the conclusion that the Plaintiffs ownership in respect of the suit premises in which he is admittedly in a possession could be shown from original as well as documentary evidence. The oral evidence laid by the witness read together shows that the Plaintiff who purchased the suit premises alone from Chandumal Jahagir for Rs.4,000/- (Rs.Four Thousand only) in cash. Therefore, the Trial Court concluded the issue No.1 holding that the Plaintiff is the owner of the suit premises and therefore issue No.1 was answered in affirmative. 10 13. In answering the issue No.2, the learned Trial Judge observed that the Plaintiffs occupation and possession of the suit premises on the day of the filing of the suit is not disputed. The fact that the Plaintiff’s possession of the suit premises from the date of the purchase from Chandumal Jahagir itself is not disputed. The Defendants conceded that the parties are in joint possession and had admitted fact that the Trial Judge answered issued No.2 in the affirmative. 14. While discussing issue No.3, the Trial Court held that the Defendants are not seen to be joint owner of the suit premises since the Plaintiff has been seen to the sole owner and to have been made payment solely to Chandumal Jahagir to the entire consideration of Rs.4,000/-(Rs.Four Thousand only) for the suit hut and therefore issue No.3 was answered by the Trial Judge in negative. 15. Coming to the issue No.4, the Trial Court observed that the Plaintiff has shown his ownership of the suit premises upon its purchase from Chandumal Jahagir for Rs.4,000/- in cash, the Plaintiff is also shown that he was in exclusive possession of the suit 11 premises on the date of the suit from the certified extract of the electoral roll as of 1st January, 1983 and his ration card on 3rd March, 1983. The Trial Court therefore, concluded that the Plaintiff is entitled to declaration of the injunction prayed for by him and accordingly issue No.4 was answered in affirmative. 16. While decreeing the suit, the Trial Court passed the following order 1. The suit is decreed in terms of prayers a(i) and (b). The Plaintiff is declared to be the owner of the suit premises being a shed/hut at Cutting NO.10, Gokul Nagar, Subhash Chowk, Akurli Road, Kandivli, Mumbai - 400 101. 2. The Defendants, their servants and agents are restrained by a permanent order of injunction from entering into the suit premises, residing therein or enjoying any rights over the suit premises at the above address. 12 3. Since it is seen that the defendants have continued in possession of the suit premises pending the suit, though not on the date of the suit, the defendants shall vacate from the suit premises. 4. This order is stayed for 8 weeks. 5. The parties shall be entitled to a return of all the original documents produced by them or their witnesses. 6. The Defendants’ case is seen to be totally false. the Defendants have admittedly created evidence after the filing of the suit. the Defendants have produced as many as three other witnesses who are all seen to have deposed falsely on their behalf. Hence, the defendants should be liable to pay costs of this litigation to the Plaintiff. The Defendants shall pay costs of Rs.3,000/- to the Plaintiff. 13 17. Being aggrieved by the final Judgment and order passed by the City Civil Court at Bombay dated 23rd July, 1999 the present Appellant / Original Defendants have filed this First Appeal before this Court. . This First Appeal was admitted by this Court and the interim relief which was intitally granted by the City Civil Court, Bombay is continued during the pendency of this Appeal. . When the matter was taken up for final hearing on 2nd June, 2008, none appeared for the Appellant and therefore the matter was adjourned for final hearing on 3rd June, 2008. 18. The learned counsel appearing for the Appellant submitted that the order passed by the Trial Court is without jurisdiction, since the suit property is a slum and the Trial Court is no jurisdiction to try this suit. It was further argued that even the claim made by the Plaintiff is contrary to each other, because the Plaintiff filed the suit for simplicitor injunction inspite of the fact that Plaintiff and Defendants were in joint 14 possession of the suit property. It was further argued that there is no evidence on record to show that Plaintiff has constructed the premises as stated by Plaintiff in paragraph 2 of the plaint that he has constructed the premises in 1979-80. It is further submitted that the statements made in the plaint are contrary to the statements made by the Plaintiffs in his deposition before the Court. It was further argued that on the basis of the entire evidence on record, the Trial Judge ought to have held that the Plaintiffs and Defendants are in joint properties and therefore they are the joint owner of the property. It is further argued that the evidence of P.W.4 Shri. Chandumal Jahagir ought not to have been believed by the Trial Court since his statements were contradictory. . It is further argued that the number of documents which were produced by the Appellants before the Trial Court has not been properly appreciated by the Trial Court. It is further argued that the Appellants had paid non agricultural tax in respect of the suit property. It is further argued that since there is no documents on record, about the ownership of the Plaintiffs and therefore, 15 the Trial Judge should not have held that the Plaintiffs is the owner of the property. It was further argued that the ration card which was produced by the present Appellants before the Trial Court was of year 1986 i.e. prior to filing of the suit. It is further argued that the evidence which was placed on record by the Defendants before the Trial Court, should have been believed by the Trial Court and Trial Court ought to have held that, the Plaintiff and Defendants are joint owners of the property. It was further argued that, taking overall view of the matter, and in view of the fact that both the parties are in joint possession of the suit property, the Trial Court should have decreed the suit by holding that the Plaintiffs and Defendants are joint owners of the property and consequently they are in possession of the suit property. 19. Though matter was adjourned to enable the Advocate appearing for the Respondents to argue their case, none appeared for the Respondents. 20. On the basis of pleadings in the plaint, written statement filed by the Defendants before the 16 Trial Court and further perusing the entire evidence on record as well as reasoning given by the City Civil Court, Bombay, I proceed to decide this First Appeal. 21. It has come in the deposition of the Plaintiff that he is the owner of the property from 1974-75 and he has purchased the said property from P.W.4 by paying Rs.4,000/-. Though there was writing in respect of purchase of the property, however, documents which was prepared has been lost. It is further contended by him that the hut/suit property was repaired by him at that time the Defendants were not in Mumbai. According to Plaintiff, Defendants came to Mumbai in 1984-85. . The deposition of the Plaintiff in Chief-examination has remained intact so far it relates to the repair of the hut by him, when Defendants were not in Mumbai. Even the evidence of the Plaintiff that he purchased the suit property from P.W.4 for Rs.4,000/- has not been shaken in the cross-examination. The Plaintiff has not been examined on the aspect of purchase of the property. The evidence of the P.W.3 who was examined on behalf of Plaintiff discloses that, the Plaintiff purchased 17 his room in the year 1981-82 and Defendants came to reside their after 2-3 years. This statement of the P.W.3 has not been shaken and in his entire cross-examination, there is no challenge to his statement that Plaintiff purchased the suit property in the year 1981-82 and Defendants came to live their in after 2-3 years. 22. The evidence of Defendants shows that they have purchased the suit house jointly with the Plaintiff. They examined the five witnesses to the transaction. . When the Plaintiff stated in his chief-examination that he has purchased the suit house from P.W.4 for Rs.4,000/-, on the other hand, Defendants stated before the Court that they have paid entire amount for consideration to P.W.4. I have perused the written statement and additional written statement filed by the Defendants and there is nothing in those statements to suggest that the Defendants paid the amount of consideration to P.W.4. The D.W.1 who was examined on behalf of the Defendants admitted in his examination that premises are purchased from P.W.4. D.W.4 in his statement 18 before the Court has stated that his brother gave Rs.4,000/- to the Defendant No.1 and Defendant No.1 gave it to the Plaintiff to purchase the land and after purchasing the land, they constructed the tin sheet room and they started living together with the Plaintiffs. However, no proof is produced on behalf of the Defendants to show that payment of Rs.4,000/- was paid by them to the P.W.4 or either to the Plaintiff to pay it to the P.W.4. 23. The evidence of D.W.2 and D.W.4 shows that Defendant No.1 had no money and that the Rampayrelal gave money to them. D.W.2 and D.W.4 are younger brothers of Rampayrelal. There are contradictions between the statement given by D.W.2 and D.W.4. The statement of D.W.2 shows that money was given to purchase the room and statement of D.W.4 shows that the money was given to purchase the land. 24. In my opinion, there is apparent contradictions between the versions given by the D.W.2, D.W.4 and Defendants. If at all 4,000/- rupees were available with them, in that event the Defendant should have separately purchased the premises instead of purchasing the same jointly with 19 the Plaintiffs. 25. After careful perusal of the statements of the Plaintiff and the witnesses examined on behalf of him, and the statements of the Defendants before the Court, as well as the statements of the witnesses examined on behalf of the Defendants, one thing is clear that there is no document on record to show that the suit property was purchased by the Plaintiff and Defendants jointly or separately. In absence of the documentary proof on record about purchase of the suit property, the evidence of P.W.4 before the Court assumes much importance and ultimately so far ownership of the premises is concerned, the case rests upon the evidence of the P.W.4 before the City Civil Court, Bombay. . The Plaintiffs witness P.W.4 namely Chandumal Devraj Jahagir was examined by the Trial Court on 13th June, 1999. The relevant paragraph No.1 of his deposition reads thus : "I had one hut in Kranti Nagar at Kandivali (East) in 1980. I had constructed that hut. I gave that hut to 20 him (The witness point to the Plaintiff who is present in Court ) I know the Plaintiff by face. I sold him the hut for Rs..4000/- in 1983. Kranti Nagar is also called Gokul Nagar. It is a whole locality. I had sold the other part of my hut to another person. He works in the Telephone Co. His name was Ramsinha Yadav. I sold him also the hut for Rs.4000/-, in 1983. It is correct that the portion which has sold to the Plaintiff is separate and distinct from the portion which I sold to Ramsinha Yadav. I never sold any portion of my hut to anyone else." . The P.W.4 was examined by the Defendants and the entire cross-examination of the P.W.4 is reproduced herein below. "Cross Examination by Deft.No.1 himself : 5. (Defendant No.1 is asked whether he wants to put any question in cross examination to the witness. He states that in view of his evidence there is nothing left to put any questions. He 21 also states that what the witness has deposed of false and that he had himself got Rs.4000/- and given it to the Plaintiff to be given to this witness.) Defendant No.1 is asked which advocate he had engaged as directed on 24.6.99. Deft. NO.1 submits a letter of his advocate Mr. Holamagi dated 28.6.1999 and states that advocate Mr.Malvankar had come in the morning today, for the defendant and has left. The letter of Mr.Holamagi submitted by Deft.No.1 is directed to call his present adv. Ms.Malvankar at 2.45 p.m. AFTER RECESS : Cross Examination by Mrs.Malvankar, Advocate for Defendant No.1. 6. My entire hut was 20 ft. x 30 ft. in area. I sold half the hut to the Plaintiff and the other half to Yadav. I gave the proof that hut was mine to the Plaintiff. I had the receipt of the chawl 22 committee. I had given that to the Plaintiff. At that time there were no municipal taxes for our locality. Adivasis were living there. I had executed no writing that I had sold the hut to the Plaintiff. All the adivasis knew me. I had taken Rs.4000/- in cash. I had not passed any receipt. Q. To whom did you sell the suit hut first ? Ans.To him ( The witness points to the Plaintiff who is present in court) It is not true that I do not know anything about the affidavit made by me. It is also not true that I was the owner of the suit hut which I sold. No Re-Examination. (The Plaintiff closes his case) 26. On perusal of the examination-in-chief of the P.W.4 shows that he has sold the suit premises to the Plaintiff. There is nothing to suggest in the 23 cross-examination that the premises were not sold by the P.W.4 to the Plaintiff. It is the case of the Defendants that they have paid the amount of consideration to the P.W.4, however, the Plaintiffs deposition shows that the payment of Rs.4,000/- was received by him in cash from the Plaintiff. 27. In absence of any documentary evidence on record in writing about the purchase of suit property from P.W.4 by paying consideration of Rs.4,000/- either by Plaintiff or Defendants, jointly or otherwise, the P.W.4’s evidence decides the issue of purchase of the property by the Plaintiff from him. Therefore, there is no option but to hold that Plaintiff had purchased the suit property from P.W.4 by paying Rs.4,000/- towards consideration amount. . The Defendants have raised objections that the Plaintiff in his plaint never prayed the relief of ownership, however, the relief which is not claimed has been