1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.4 of 1993 Ramdas Narayan Golait, since deceased through: His Legal heirs and legal representatives: (1) Rohidas Ramdas Golait, age 35 years, 2. Raju Ramdas Golait, age 25 years, 3. Ulhad Ramds Golait, age 21 years, Ushabai Ananada Pawar, age 21 years, Alka Shiwaji Salve, age 27 years, Shobha Sudhakar Helange, age 25 years, ... Appellants/ Parwatabai Ramdas Golait, heirs of 35 years, ori.Pltff. versus Bhila Kalu Bhil, age 53 years, occupation agriculture, ... Respondent r/o Pathrad, Tql.Erandol, ori.deft. District Jalgaon. ------ 2 Shri Sanket S. Kulkarni, Advocate, for appellants. Smt.C.S. Deshmukh, Advocate, for the respondent. Coram: P.R. Borkar J. Date : July 16, 2009. Oral Judgment 01. This second appeal is filed by original plaintiff whose suit for bearing R.C.S. No.47 of 1983 for possession though decreed by learned Civil Judge,Junior Division, Erandol, on 25.2.1986, learned Additional District Judge, Jalgaon, allowed Regular Civil Appeal No.118 of 1986 on 7.2.1992 and set aside the decree for possession and dismissed the suit. 02. Briefly stated, it is the case of the appellant-plaintiff that he is owner of gram panchayat house No.218 constructed on plot No.199 situated at village Pathrad, District Jalgaon. It was given on to defendant at monthly rent of Rs. 2/=. By the notice dated 31.1.1980 tenancy was terminated by the end of February 1980. Notice was received by defendant but he neither paid arrears of rent nor handed over possession and, therefore, suit is filed. 3 03. The defendant appeared in the suit and filed written statement at Exh.10 and denied that the house was owned by the plaintiff. According to defendant, it was open plot belonging to gram panchayat and the gram panchayat allotted it to forefathers of defendant before 50-60 years and they constructed a house over that open space and since then defendant was residing over there. He was never tenant of the plaintiff and, therefore, there is no question of payment of rent. According to defendant, notice was false. 04. The trial court held that there was relationship of landlord and tenant between the parties. It is also held that the defendant failed to prove that he was occupying the property as the owner. The notice was legal and therefore the trial court decreed the suit. In appeal, the First Appellate Court came to the conclusion that the issue of title was properly decided by the trial court, but the plaintiff failed to prove that there was relationship of landlord and tenant between him and the defendant and therefore the learned First Appellate Court refused to pass decree for possession and dismissed the suit. 05. This second Appeal is admitted on following substantial questions of law raised by ground Nos.1,2,5,9 and 10 of the appeal memo, 4 which read thus: 1. The learned Additional District Judge, Jalgaon, has decided the appeal against dead person and hence, the judgment is illegal and bad in law. 2. The learned Judge failed to see that after the judgment was passed, the appellant had filed an application on 26.2.1992, for bringing the heirs of the deceased respondent on record and the said application has been rejected on the grounds that the appeal is allowed and it has been disposed off and hence the application is not tenable under these circumstances, the judgment and order passed in Civil Appeal No.118 of 1986 is a nullity. 5. The learned Judge failed to see that the defendant has never challenged the title of the plaintiff-landlord-and there is no dispute about the ownership of the suit property. 9. It is an error to hold that, had the plaintiff brought the suit claiming to be the owner and that the defendant is either a purchaser or licenses, then only 5 it would have been decreed ? 10. The learned Judge failed to see that the respondent plaintiff died on 4.1.1992. And the appeal has been decided on 7-2-1992, hence, the impugned order is a nullity. 06. Heard Shri Sanket Kulkarni, Advocate for the Appellants and Smt.C.S. Deshmukh, Advocate for the Respondent. Advocate Shri Kulkarni has vehemently submitted that the appellant-original plaintiff Ramdas, who was respondent in the appeal before the District Court, has died on 4.1.1992 and without bringing his legal heirs, the appeal was decided by the District Court on 7.2.1992 and, therefore, the decree passed by the First Appellate Court is nullity. The dates of death of Ramdas and decision of the District Court are not disputed by Smt.C.S. Deshmukh, learned counsel for the Respondent-defendant and she also submitted that the appeal be remanded. 07. In view of the submissions made by both the Advocates, appeal is partly allowed. The judgment and decree passed by learned Additional District Judge dated 7.2.1992 allowing Regular Civil Appeal No.118 of 1996 is hereby set aside and the matter is remanded to the District Court, Jalgaon. It is directed that the said Regular 6 Civil Appeal No.118 of 1996 be restored and taken on file and the same be decided afresh as per law. Advocates for appellants and Respondent in this second appeal state that the parties shall appear suo-motu before the first appellate court on 1.9.2009. In the meanwhile Registry to send the appeal and record and proceedings to the District Jalgaon. The District Court, Jalgaon shall allow the appellant before it i.e.Bhika Bhil to amend the appeal memo and bring legal heirs of deceased Ramdas-Respondent before that court on record and thereafter proceed to hear the matter and decide the same after hearing both sides as early as possible and preferably within three months thereafter. 08. With above directions, appeal disposed of. pnd/sa4.93 (P.R.BORKAR, J.) /authenticated copy/ (P.N.Deshpande) Private Secretary to Hon'ble Shri Justice P.R.Borkar