1 SA 769.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 769 OF 2010 Eknath S/o Kondiba Borde ..... APPELLANT V E R S U S Bhagwan S/o Kondiba Borde & Others .... RESPONDENTS Mr.V.C.Solshe ,Advocate for the appellants. Mr.D.K.Kulkarni, Advocate for Resp. No. 1. CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 ORAL ORDER : 1. The present appellant had filed Suit for perpetual injunction against the present respondents. The present respondent no. 1 filed counter claim seeking possession of the suit property on the ground that the present respondent no. 1 is the owner of the property and the appellant was in permissive possession. Even in the CIDCO record, the present respondent no. 1 is shown as owner, who has purchased the property from respondent no. 3, who was initially allotted the suit house. The present appellant filed his Say/Written Statement to the said counter claim, but, only raised the point that the counter claim is not maintainable and did not set up any 2 SA 769.2010 particular defence. The trial Court dismissed the Suit, so also dismissed the counter claim. The defendant no. 1 being aggrieved by the dismissal of his counter claim, filed Appeal before the District Court. The plaintiff did not prefer any Appeal against the dismissal of his Suit. The lower appellate Court allowed the Appeal and decreed the counter claim filed by the defendant no. 1, thereby directing the appellant to deliver the possession to the defendant no. 1. The plaintiff has assailed the said Judgment and decree in the present Second Appeal. 2. Mr. V.C. Solshe, the learned counsel for the appellant submits that no issue of adverse possession was framed. In absence of issue of adverse possession, the Court could not have allowed the counter claim of the defendant no. 1. The learned counsel further contends that in Written Statement to the counter claim, the plaintiff had specifically raised the plea that the counter claim is not maintainable. Necessarily, the said plea was as per Order VIII Rule 6 ( C ) of the Code of Civil Procedure and no order was passed by the Court on the same. As such, the Courts below have failed in their duty, thereby vitiating the Judgment. The learned counsel further contends that since 1990, the appellant is residing in the suit premises. He had purchased the property and paid installments to the CIDCO. Even another brother had supported the case of the plaintiff, still the same has 3 SA 769.2010 not been considered. 3. Per contra, Mr. D.K.Kulkarni, the learned counsel for the defendant no. 1 submits that in fact the plaintiff while filing his reply to the counter claim, raised no defence that the counter claim is not maintainable. Even no separate application was filed for exclusion of counter claim mandating the Court to pass order therein. According to the learned counsel, the tripartite agreement has been executed between defendant no. 3 and the defendant no. 1, which shows that the defendant no. 1 is the legitimate owner of the property and is entitled for possession. The appellant could not show any hostile animus nor he was in possession in the capacity as owner of the property. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. If the plaintiff would have filed an application for exclusion of counter claim, then in such circumstances, it was obligatory on the part of the Court to pass order on the same in view of Order VIII Rule 6 (c) of the Code of Civil Procedure. But, the plaintiff did not file any such application for exclusion of the counter claim. In his Say/Written Statement to the 4 SA 769.2010 counter claim, he has just raised a plea that the counter claim is not maintainable. The Court below has raised specific issue about the maintainability of the counter claim. In such circumstances, it can not be said that the Courts have not considered the objection raised by the plaintiff. 6. It is observed that the defendant no. 1 has purchased the property from defendant no. 3 with the consent of the CIDCO, who is the original owner of the plot. The tripartite agreement has also been executed in favour of the defendant no. 1. As such, the right and title of the defendant no. 1 is not disputed. No specific defence was raised to the counter claim. In such circumstances, the Court below did not commit any error in decreeing the counter claim filed by the defendant no. 1. 7. In light of the above, the Second Appeal does not involve any substantial question of law, as such is dismissed however with no order as to costs. 8. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. 5 SA 769.2010 9. At this stage, Mr. V.C. Solshe, the learned counsel for the appellant states that since 1990, the appellant is occupying the premises and some time may be granted to the appellant to vacate the premises so as to search alternate accommodation. Mr. D.K. Kulkarni, the learned counsel for the respondent no. 1 opposes the said request. 10. Taking into consideration the fact that the appellant is occupying the suit premises since 1990, I feel it appropriate to grant six ( 6 ) months time to the appellant to vacate the suit premises on condition that the appellant shall file an undertaking to the Court to the effect that he would vacate the suit premises by the end of September, 2011. He shall not create any third party interest nor change the nature of the suit property . The undertaking to be filed within the period of three ( 3 ) weeks from today. [ S.V. GANGAPURWALA,J. ] KNP/SA 769.2010