-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 51/2009. ( Mahesh Shivlal Shahu -versus- Smt. Bhagyashree Jayantrao Buty ) ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : FEBRUARY 26, 2009. Heard Shri Kulkarni, Advocate for appellant and Shri Kothari, Advocate for respondents. By consent of parties, the matter is being disposed of finally at the stage of admission itself. Question which arises is – Whether the Lower Appellate Court has exercised its jurisdiction as per law ? The present respondents filed suit for eviction on the basis of title contending that the present appellant was in unauthorised occupation of Block no.11. They contended that Jagdish Textiles through its Proprietor Shri Waswani, was the original tenant who by some unauthorised arrangement with the appellant came into possession of block no.11. In order to show their title to block no.11 they relied upon the oral partition and document Exh.28. The Courts below have concurrently found the present respondents to be owners and have passed a decree of -2- eviction against the present appellant. Advocate Shri Kulkarni, has raised two contentions before this Court. The first contention is Exh.28, being un registered document and found to be inadmissible by the Lower Appellate Court, cannot be a source of title in favour of the respondents. His next contention is that, the document of assessment Exh.52, which has been filed on record by the appellant does not show names of the present respondents as owners of block no.11 and as those entires in Exh.52 are subsequent, the alleged theory of oral partition or then the allotment of block no.11 to present respondents therein stand falsified. He also argues that as the suit is based on title, payment of rent by the present appellant to respondents is not in any way determinative in present circumstances. Advocate Shri Kothari, on behalf of respondents, contends that Exh.28 is not a partition deed and it is only an agreement of distribution of rent, reached between the parties as a consequence of oral partition. He states that the Lower Appellate Court has erroneously found the said document to be inadmissible. He further argues that the oral partition has been established on record and infact in written statement there is no specific denial of title of present respondents/plaintiffs. He further contends that the -3- assessment record Exh.52, does not show block no.11 and it does not reflect names of present respondents as owners or then name of present appellant as occupier. According to him Exh.52 is wholly irrelevant in present circumstances. After hearing the parties in the light of the questions formulated above, it is apparent that the Lower Appellate Court has not considered the points arising for determination before it in accordance with the law. Even the Appellate Court functioning under Section 96 of the Code of Civil Procedure has to appropriately deal with all the material aspects i.e. not only in relation to facts but also various legal issues. Duty and obligation cast on Appellate Court are discussed in detail in judgment reported in the case of Santosh Hajari .vrs. Purushottam Tiwari (2001 [2] Mh.L.J. 786). In the present circumstances, prima facie it appears that, if Exh.28 is a subsequent agreement i.e. reached after oral partition, the document may not require registration and could have been used for collateral purposes. However, consideration by Lower Appellate Court does not show, whether Exh.28 is subsequent to oral partition and/or is document of partition itself, as sought to be contended by Advocate Shri Kulkarni. Not only this, the mentioning and consideration of Exh.52 i.e. the Revenue Record is also not -4- sufficient because the details thereof does not find consideration in paragraph no.21. Advocate Shri Kulkarni, has tried to contend that if oral partition is accepted, and present plaintiffs are held to be owners, than as a consequences thereof, Ex. 52 must have reflected their names. He urges that as Exh.52 shows names of some other persons as owners, the alleged oral partition cannot be relied upon. Again this is material aspect which has not been gone into by the Lower Appellate Court. Advocate Shri Kothari, tried to demonstrate that there is no serious challenge in the matter, particularly to the agreement and title of the plaintiffs. I do not find it proper to comment on pleadings of the parties in Second Appeal in absence of its consideration either by the Trial Court or by the Lower Appellate Court. In view of the position emerging from record. I find that the Second Appeal needs to be allowed and matter have to be remanded back to the Lower Appellate Court for taking decision a fresh in accordance with law. In view of the discussion mentioned above, the Appeal is allowed, the impugned judgment and decree delivered by the Lower Appellate Court dated 5.12.2008 in Regular Civil Appeal No.151/2007 is hereby quashed and set aside. The said Regular Civil Appeal is restored back to its -5- file for fresh decision in accordance with law. It is also to be seen that as the dispute is between owners and occupier and as the matter is being sent back, the Lower Appellate Court shall decide the appeal afresh as early as possible and in any case by 31.09.2009. Advocate Shri Kothari, requests for a date for appearance before the Lower Appellate Court. Advocate Shri Kulkarni, has no objection. Parties are therefore directed to appear before the Lower Appellate Court on 16.03.2009 and abide by its further directions. JUDGE Rgd.