1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 493 OF 2003 Dhaudaku Zipru Sonar ...Appellant (Original Defendant) VERSUS Savalu Zipru Sonar, died – L.Rs. 1A) Dattatraya Savalu Jade and others ...Respondents (heirs of Original Plaintiff) ..... Shri V.J. Dixit, Senior avocate i/by Shri Mukul Kulkarni, advocate for the appellant Smt. Pratibha-Bharad-Wankhede, advocate for respondents ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 19 th January, 2011 PER COURT : 1 Heard Shri V.J. Dixit, learned Senior counsel i/by Shri Mukul Kulkarni, advocate for the appellant and Smt. Pratibha- Bharad-Wankhede, learned counsel for the respondents. Shri Dixit, 2 learned Senior counsel made a statement that the heirs and L.Rs. of deceased respondent no.1-C are already on record, and therefore, there is no necessity to take any steps in that respect. The said statement is accepted and taken on record. 2 This is a Second Appeal preferred by the appellant (original defendant). The respondents are the heirs and L.Rs. of original plaintiff. The parties are hereinafter referred as per their original status i.e. ‘the plaintiff’ and ‘the defendant’. 3 The respondent (original plaintiff) has filed Regular Civil Suit No. 336 of 1979 against the appellant (original defendant) on 21.8.1979 in the court of 4 th Joint Civil Judge, Senior Division, Dhule for eviction, arrears of rent and past and future mesne profit. 4 It is the case of the plaintiff that the defendant is his younger brother and on 6.8.1947 the plaintiff purchased the suit property from Tarachand Bhavdu and Narayan Bhavdu and the suit property is separate and his self acquired property. According to the plaintiff, as the defendant was in need of house, the plaintiff let out the suit house to the defendant on 16.4.1970 on monthly rent of Rs. 10/-. Accordingly, the defendant executed the rent note in favour of 3 the plaintiff. It is the case of the plaintiff that the defendant paid the rent in the beginning, but later on did not pay the same. 5 It is also the case of the plaintiff that the defendant, at the instance of people, tried to mutate his name in respect of the suit house and agricultural lands of the plaintiff. Hence, the plaintiff filed Regular Civil Suit No. 399 of 1971, which was carried to Regular Civil Appeal No. 181 of 1973 and further Second Appeal No. 166 of 1977. Thereafter, the plaintiff issued notice to the defendant through advocate and thereby terminated the tenancy of the defendant. The defendant gave reply to the said notice on 1.8.1978 and raised false contentions and denied the ownership of the plaintiff. Meanwhile, litigation in respect of the agricultural land was under progress and decision in the Second Appeal was awaited. Hence, the plaintiff did not take any action. However, the decision of the Second Appeal No. 166 of 1977 came in favour of the plaintiff on 8.1.1978. Hence, again the plaintiff issued notice to the defendant on 11.7.1979 and terminated his tenancy and claimed arrears of rent and also demanded possession of the suit house. The defendant refused to accept the said notice. Hence, the plaintiff filed Regular Civil Suit No. 336 of 1979 and claimed possession of the suit house, together with the arrears of rent and also mesne profit and costs of the said 4 suit from the defendant. 6 The defendant filed the written statement and resisted the suit claim and denied that the suit house is self acquired property of the plaintiff, and also denied that he is in possession of the suit house as a tenant on monthly rent of Rs.10/- from 16.4.1970. According to the defendant, the suit house was purchased out of joint family funds. It is also contended by the defendant that the plaintiff alone had no capacity to purchase the property, since he was a mere Primary Teacher and was being transferred from time to time. Accordingly, it is contended that the suit property was blended as Joint Hindu family property. Besides, it is contended by the defendant that there is bar of the provisions of Order II Rule 2 of the Code of Civil Procedure and the principle of res judicata. 7 After considering the pleadings and the evidence adduced and produced by the parties on record, the learned Trial Judge decreed the said suit with costs and the defendant was directed to hand over the possession of the suit property to the plaintiff by judgment and order dated 6.1.1996. Being aggrieved and dissatisfied by the said judgment and decree, the defendant preferred Regular Civil Appeal No. 46 of 1996 before the District Court, Dhule. 5 However, the learned Additional District Judge, Dhule by judgment and order dated 28.11.2000 dismissed the said appeal with costs, confirming the judgment and decree passed by the learned IVth Joint Civil Judge, Senior Division, Dhule on 6.1.1996 in Regular Civil Suit No. 336 of 1979. Being aggrieved and dissatisfied by both the judgments, the defendant has preferred the present Second Appeal assailing the same. 8 At the out set, there are concurrent findings against the defendant herein. As regards the objection raised by the learned Senior counsel Shri Dixit appearing for the defendant/appellant in respect of bar of Order II Rule 2 of the Code of Civil Procedure, the Trial Court as well as the First Appellate Code have raised specific issues in that respect and came to the conclusion that there is no substance in the said objection. 9 Admittedly, Regular Civil Suit No. 399 of 1971 filed by the plaintiff for partition and possession was in respect of the ancestral property/agricultural lands; whereas Regular Civil Suit No. 336 of 1979 i.e. the present suit filed by the plaintiff was in respect of the recovery of possession of the suit property in the capacity of landlord against the tenant i.e. the defendant herein with the arrears 6 of rent on the basis of termination of tenancy of the defendant, and therefore, it was rightly held by the learned Trial Court that it was not necessary on the part of the plaintiff to include the suit house in the earlier suit, and there is no question of any bar of the provision of Order II Rule 2 of the Code of Civil Procedure, and the said finding was rightly confirmed by the First Appellate Court and no interference therein is called for in the present Second Appeal. 10 Besides, the plaintiff has filed Regular Civil Suit No. 336 of 1979 after terminating the tenancy of the defendant by issuing notice under Section 106 of the Transfer of Property Act for the recovery of possession and arrears of rent. The grievance was raised by the learned Senior counsel for the defendant/appellant that the said notice was not served upon the defendant. However, it is pointed out that the said notice was returned unserved with the endorsement, “not claimed by the defendant”. 11 In the said context, the learned counsel for the plaintiff relied upon the judgment in the case of P.T. Thomas vs Thomas Job, reported at 2005 AIR (SCW) 4593 and contended that the said notice was deemed to be served upon the defendant, since he did not raise any claim in that respect, and it was sent on the correct address of 7 the defendant. It is also submitted that though the notice was correctly addressed and despite intimation by the post office, the notice was not accepted by the defendant and it was returned unserved, and therefore, there is presumption in law that the said notice has been served upon the defendant. Apparently there is substance in the said contention, and consequently, the argument canvassed by the learned Senior counsel for the defendant requires to be discarded. 12 As regards the nature of the suit property, whether it was a joint family property or self acquired property, it is the contention of the plaintiff that it is his self acquired property and he purchased the same from separate earning by doing the job of gold smith. It is the contention of the defendant that the suit house was purchased in the name of the plaintiff from and out of joint family funds and the suit property was blended in the Joint Hindu family. However, after assessing the evidence on record, the Trial Court arrived at the conclusion that the suit property is the self acquired property of the plaintiff and the same was confirmed by the First Appellate Court. Accordingly, after analyzing the evidence on record, both the Courts below have arrived at the concurrent view, which is a possible view to be adopted after considering the evidence, and which does not 8 find to be perverse, and therefore, no interference therein is called for in the present appeal. 13 In the circumstances, no substantial question of law could be formulated, and therefore, present appeal bears no substance, and hence, same stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa493.03