: 1 : SD 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 SECOND APPEAL NO.593 OF 1988 SECOND APPEAL NO.593 OF 1988 SECOND APPEAL NO.593 OF 1988 Sindhubai Tukaram Ambike ...Appellant V/s. Bhagubai Sitaram Jagtap ...Respondent Mr.R.M. Agarwal, Advocate, for the Appellant. Mr.R.N. Sanghavi, Advocate, for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 6TH FEBRUARY, 2008. DATE : 6TH FEBRUARY, 2008. DATE : 6TH FEBRUARY, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Counsel appearing for the parties were heard on 27th November, 2007 and the Second Appeal was posted for Judgment on 29th November, 2007. Thereafter the parties sought time on various occasions for settlement. On 18th January, 2008, it was brought to my notice that now there is no possibility of amicable settlement. Therefore, today the Appeal is kept for the dictation of Judgment. 2. The Second Appeal is preferred by the original plaintiff. The Second Appeal was admitted on 21st December, 1988 by this Court by passing the following order:- : 2 : "Mr.Agrawal is heard. Admitted - the substantial question law being whether appellant being a daughter of Sitaram was entitled to a half share in the estate of the deceased? Counsel for Respondent to waive service." 3. With a view to appreciate the submissions made by the learned Counsel for the parties, it will be necessary to briefly refer to the facts of the case. The plaintiff is the daughter of one Sitaram Jagtap who died on 7th August, 1980. According to the plaintiff, her mother Smt.Ambubai died on 14th August, 1971. It is the case of the plaintiff that she is the only daughter of Sitaram from the said Ambubai. From 1967 onwards, the appellant-plaintiff has been residing with her husband. According to the case of the plaintiff, the respondent-defendant was residing with her father from the year 1970 and she continued to stay with her father even after the death of Ambubai. According to the plaintiff, there was no relationship between her father and respondent-defendant. According to the plaintiff, she was the only surviving legal representative of her father and was entitled to inherit all the estate of the father. : 3 : 4. According to the case of the plaintiff, the defendant continued to reside in the house of the father on Survey No.111/112 at Vishrantwadi. It is contended that the deceased father was the tenant of the said land on which he had constructed a house. The deceased father was having a business in the house by the name and style of Sitaram Cycle Mart. He was selling household articles, cycle and cycle parts and Yezdi Motor Cycles in the property. The case of the plaintiff is that, being the only legal representative, she was entitled to inherit the suit property. As the defendant prevented the plaintiff from entering the house forming part of the suit property, a notice was served by the plaintiff to the defendant calling upon her to vacate the suit property. As the defendant did not comply with the notice, the present suit for possession and injunction was filed by the plaintiff. 5. The defendant contested the suit by contending that she was the legally wedded wife of the plaintiff’s father. It is contended that the defendant married to the plaintiff’s father in the year 1972 after the demise of Ambubai. It is : 4 : contended that she accumulated money and started the cycle business in the name of her husband. It is contended that the defendant is the absolute owner of the business. It is contended that the plaintiff is not the only legal representative of deceased Sitaram. 6. The Trial Court framed various issues. The Trial Court held that the deceased Sitaram was the owner of the suit cycle shop. The Trial Court held that the plaintiff was the only heir of deceased Sitaram and that the defendant has failed to establish that she is the owner of the cycle shop. The Trial Court passed a decree of declaration of ownership and possession as well as injunction in favour of the plaintiff. An Appeal was preferred by the defendant to the District Court. The District Court confirmed the finding that the deceased Sitaram was the owner of the shop. The Appellate Court held that the defendant was the legally wedded wife of Sitaram and therefore the plaintiff was not the only legal heir of deceased Sitaram. The District Court held that during the pendency of the Appeal, the plaintiff forcibly dispossessed the defendant. Therefore, while setting aside the decree passed by the Trial Court, the Appellate Court ordered the plaintiff to handover possession of the suit premises alongwith movable : 5 : property therein to the defendant. 7. The submission of the learned Counsel for the appellant is that the status of the defendant as legally wedded wife of deceased Sitaram was not established. His second submission is that even assuming that the defendant was the legally wedded wife of Sitaram, the plaintiff will be entitled to undivided share in the suit property as the suit property is held to be the property of the deceased Sitaram and therefore the Appellate Court could not have passed an order of dispossession as even according to the finding of the Appellate Court, the plaintiff is the co-owner of the suit property alongwith the defendant. Placing reliance on various decisions of this Court, he submitted that the order of dispossession passed by the Appellate Court is in the nature of an order of restitution under Section 144 of the Code of Civil Procedure, 1908 and hence the said order could have been passed only by the Court of the first instance. He submitted that in any event, an application was made by the respondent-defendant in the Appeal at Exhibit-23 seeking restoration of possession and the said application was rejected by the Appellate Court by order dated 27th July, 1997. It is, therefore, submitted that as the said order has : 6 : attained finality, the Appellate Court could not have passed an order of dispossession. 8. The submission of the learned Advocate for the respondent is that after considering oral and documentary evidence on record, a finding of fact has been recorded that the respondent-defendant was the legally wedded wife of deceased Sitaram and the marriage between the defendant and the deceased Sitaram was solemnized after the demise of the first wife of deceased Sitaram. It is submitted that no interference was called for in that behalf. He pointed out that admittedly, the defendant was in possession of the suit property and therefore the plaintiff had filed a suit for possession. He pointed out that the execution of decree for possession was stayed by the District Court during the pendency of the Appeal preferred by the respondent-defendant and when the said order of stay was in force, the appellant-plaintiff forcibly dispossessed the respondent-defendant. He submitted that as decree for possession passed by the Trial Court was set aside, the Appellate Court was fully justified in passing an order of restoration of possession as the respondent was in possession on the date of institution of the Suit. He submitted that even assuming that the order : 7 : passed on application at Exhibit-23 had attained finality, the said application was made during the pendency of the Appeal and hence the Appellate Court had jurisdiction to pass an order of restoration of possession while deciding the Appeal finally. He submitted that no interference was called for with the impugned Judgment and Decree. 9. I have given careful consideration to the submissions made by the learned Counsel appearing for the parties. This Court while admitting the Second Appeal has not framed any substantial question of law on the status of the respondent. Nevertheless, I have perused the finding recorded by the Appellate Court on the third point for determination framed by it. I have found that the Appellate Court has considered all the relevant documents including the entries made in the voters’ list of the year 1977 showing the respondent-defendant as the wife of Sitaram. The Appellate Court has referred to the conduct of deceased Sitaram of incorporating the name of the respondent-defendant as his wife. The finding of the Appellate Court is that the respondent is the legally wedded wife of Sitaram is a pure finding of fact based on the appreciation of oral and documentary evidence on record and hence no interference is called for with : 8 : the said finding. Thus, the legal position which emerges is that the appellant-plaintiff and respondent-defendant are both the legal representatives of the deceased Sitaram and in normal course they will jointly inherit the property left behind by deceased Sitaram. 10. However, in paragraph No.15 of the Judgment of the Appellate Court, it has been held that Sitaram was holding the suit property as a tenant and by virtue of provisions of Section 5(11)(c) of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947, the respondent-defendant has become the tenant of the suit property in place of Sitaram. It must be stated here that the Appellate Court has itself observed that in the written statement filed by the respondent-defendant, she had not pleaded that the tenancy rights devolved on her. In paragraph No.15 of the Judgment, the Appellate Court has observed thus:- "It is true that there is no pleadings in the written-statement about the tenancy right in favour of the Appellant. However, the question of law is involved on the basis of the admitted fact and under such circumstances, the pleadings is not necessary on the point of law in concerned." : 9 : 11. Perusal of the written statement shows that no such plea was canvassed by the respondent-defendant. The Trial Court has not framed any issue on this aspect. Whether the respondent-defendant inherited tenancy by virtue of provisions of the said Act of 1947 is a mixed question of law and fact. Unless a specific issue was framed by the Trial Court in that behalf, the Appellate Court could not have decided the said issue for the first time while deciding the Appeal preferred by the respondent-defendant as there was no opportunity given to the appellant-plaintiff to lead evidence on this aspect. Apart from this, the other issue is whether a Civil Court could have recorded a finding on this aspect in view of Section 28 of the said Act of 1947 and the rules framed under the said Act. As this issue was not agitated by the defendant before the Trial Court, there was no opportunity given to the appellant-plaintiff to raise a contention regarding jurisdiction. Therefore, the Appellate Court was not justified in recording a finding that it is the defendant alone who has inherited the tenancy right of the deceased Sitaram. 12. It will be now necessary to refer to the submissions made on the order of dispossession passed by the Appellate Court. It must be stated here that : 10 : an application was made at Exhibit-23 by the respondent-defendant before the Appellate Court purporting to be an application for restoration of the suit premises by invoking Section 144 read with Section 151 of the said Code or in the alternative for injunction. It appears that the Appellate Court permitted parties to lead evidence by affidavits for deciding the said application. By a detailed order dated 27th July, 1987, the learned Additional District Judge rejected the said application on merits. The Appellate Court noted the case made out by the respondent-defendant that according to her, she was not dispossessed in execution of the decree of the Trial Court but the appellant-plaintiff had taken forcible possession. A case was made out by the appellant-plaintiff that the respondent-defendant had sold rights in the suit property to third parties and a xerox copy of the sale deed was produced by the appellant-plaintiff. The learned Judge noted that the respondent-defendant denied execution of the said document. A specific finding was recorded that the respondent-defendant has failed to prove her case that she was forcibly dispossessed and the learned Additional District Judge observed that even according to the respondent-defendant she was absent when the possession was taken by the appellant-plaintiff. The : 11 : learned Judge held that the claim of the respondent-defendant regarding dispossession was doubtful. For all these reasons, the learned Additional District Judge rejected the application at Exhibit-23. 13. Now coming back to the impugned Judgment in the Second Appeal, in paragraph No.20 of the Judgment, the Appellate Court has observed thus:- "In the instant case, admittedly on the date of filing of the suit by Respondent the Appellant was in possession of the suit premises. The decree was passed in favour of the Respondent on 1st January, 1986 and the said decree was stayed by an interim order dated 18th September, 1986 and it was confirmed till the decision of the appeal on 20th November, 1986. The Respondent forcibly dispossessed by breaking open the lock of the suit premises in the absence of the Appellant between the period 29th June, 1987 to 3rd July, 1987. The Appellant has filed her affidavit and also the documents of prosecution. Exhibit 48 is the certified copy of the charge sheet. The Respondent is facing the prosecution under sections 448 and 341 Indian Penal code. Under such circumstances and since the Respondent is not held to b the only heir of Sitaram, the Appellant is entitled for restoration of the possession of the suit premises." 14. The Appellate Court has referred to the case : 12 : made out by the appellant-plaintiff that the respondent has purported to transfer her right, title and interest in favour of the third parties. It must be stated here that no further material was placed before the Appellate Court apart from the material in the form of affidavits which were placed before the Appellate Court while the Appellate Court decided the application at Exhibit-23. After considering the evidences in the form of affidavits, the Appellate Court had found the case of dispossession made by the respondent-defendant doubtful and therefore the application for restoration of possession was rejected. No further evidence was placed on record by the respondent-defendant to prove her case of dispossession. In the circumstances, Appellate Court while deciding the Appeal could not have passed the order of dispossession which is contrary to the order passed below Exhibit-23 by the same Court. 15. In any event, even if Section 144 of the said Code was to be invoked, in view of the decision of this Court in the case of V.T. Hundlani V/s. Robert C. Kenny [1996 (1) Bom.C.R. 452], an application for restitution is maintainable only in the Court of first instance and not before the Appellate Court. Therefore, the direction issued by the Appellate Court : 13 : for restoration of possession was illegal. 16. Now the question which arises is what should be the final order. It must be noted here that the prayer in the Suit filed by the appellant-plaintiff was for declaration that she is the only legal representative of her deceased father. In view of the finding of the fact that respondent was the legally wedded wife of Sitaram, the said declaration cannot be granted. The other prayer is for possession. Now it is not necessary to grant the said prayer for possession as admittedly the appellant-plaintiff is in possession. However, it will have to be clarified that the appellant-plaintiff is in possession as one of the legal representatives of deceased Sitaram. Now it will be for the respondent-defendant either to establish her case of tenancy under Section 5(11)(c) of the said Act of 1947 or to file appropriate proceedings for recovery of her share in the said property of Sitaram. Though the decree passed by the Appellate Court is required to be set aside, it is obvious that right of the respondent-defendant to take out appropriate proceedings will remain intact. 17. Hence, I pass the following order:- : 14 : "O R D E R" "O R D E R" "O R D E R" (a). Subject to what is stated above, the impugned Judgment and Decree of the Appellate Court dated 17th February, 1988 is quashed and set aside. (b). The prayer made by the appellant-plaintiff for declaration stands rejected as both the appellant and respondent are the legal representatives of deceased Sitaram. (c). As the appellant-plaintiff is already in possession of the suit property, the prayer for possession in the suit property does not survive and the Suit is accordingly disposed of. (d). Second Appeal is partly allowed in above terms with no orders as to costs throughout. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]