1 (SA 10 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.10 OF 2011 WITH CIVIL APPLICATION NO.12 OF 2011 Harish H. Bhatia ...Appellant Vs. Shri Anirudha Madhav Gupte and Ors. ...Respondents -------- Mr.P.S. Dani i/b. Mr. Raj Baid for Appellant Mr.S.M. Oak I.b, Mr. Sagar Joshi for Respondent No.1) ---- CORAM: V.M. KANADE J. DATED: 15th July, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellant and the Respondents. 2. The Appellant is the Original Defendant No.1 and the Respondents are the Original Plaintiffs (for the sake of convenience the parties shall be referred to as “Plaintiffs” and “Defendant No.1”). Defendant No.1 is aggrieved by the judgment and decree passed by the Learned District Judge-2, Thane in Civil Appeal No.35 of 2006 dated 8th November, 2010, whereby the appeal was dismissed and the judgment and decree passed by the 8th Joint Civil Judge, Junior Division, Thane in Regular Civil Suit No.853 of 1996 dated 28th December, 2005 was confirmed. 2 (SA 10 of 2011) 3. Brief facts are as under: A suit was filed by Plaintiffs seeking declaration that the decree passed in R.C.S. No.853 of 1996 by the Civil Judge Junior Division is null and void and that Defendant No.1 cannot acquire any right, title and interest in the suit land. Secondly, it was prayed that Plaintiffs may be declared as legal heirs of deceased Ramchandra Govind Gupte and Madhav Ramchandra Gupte and as the owners of the suit land. Thirdly, it was prayed that Defendant No.1 may be directed to hand over vacant and peaceful possession after removing the shed constructed on it by Defendant No.1; and lastly, for permanent injunction, restraining Defendant No.1, his agents, servants etc. from selling, transferring and alienating the suit land and/or creating any third party interest therein. In the plaint, it was contended that the suit land was owned by their grandfather Ramchandra Govind Gupte and he died on 8.3.1945, leaving behind a son and legal heir Madhav Ramchandra Gupte, who also died about six years back after filing of the suit. It was contended that, therefore, they are the legal heirs of deceased Ramchandra Govind Gupte and his son Madhav Ramchandra Gupte and are entitled to inherit 3 (SA 10 of 2011) the suit land. It was then contended that though Ramchandra Gupte expired in 1945, his name was continued in the record of rights i.e. 7x12 extract till September, 1994. According to Plaintiffs, when they obtained a copy of record of rights on 29.5.1995, they noticed that the name of the Ramchandra Gupte was deleted and the name of Defendant No.1 was entered in his place. It was contended that when they made enquiry, it was revealed that the suit was filed by Defendant No.1 against deceased Ramchandra Govind Gupte and an ex-parte decree was obtained on 14.6.1994. Therefore, they made further enquiries and realized that Defendant No.1 had obtained a decree by practicing fraud on the Court. It was contended that since the decree was obtained against the dead person, the said decree was a nullity. It was contended that therefore, the entry No. 2762 was illegal and was required to be quashed and set aside. It was contended that Defendant No.2 was the tenant in the suit land and she was allowed to cultivate the suit land. However, Defendant No.2 had illegally allowed Defendant No.1 to enter upon the suit land and to make construction of the garage. It was contended that, therefore, Defendant No.1 was the trespasser since he did not have any right or authority to construct the garage. It was further 4 (SA 10 of 2011) contended that the decree which was obtained in RCS No. 965 of 1993 was in collusion with Defendant No.2. It was contended that Defendant No.2 was not made a party in the said suit though his name had appeared in the 7x12 extract. Written Statement was filed by Defendant No.1 in which it was contended that the suit was filed in collusion by Plaintiffs with Defendant No.2 and he denied that Plaintiffs were heirs of the said Ramchandra Govind Gupte. It was contended that he had obtained a valid decree against Ramchandra Gupte and Plaintiffs had no right to challenge the said decree. It was further contended that he had filed a suit being R.C.S. Suit No. 949 of 1991 against the Municipal Corporation of Thane and had obtained injunction decree against the Corporation. It was further contended that Defendant No.2 was never the tenant in the suit property and that he was in legal possession of the said suit land and he relied on the decree passed passed in both the suits. The Trial Court, after going through the evidence on record, decreed the suit of Plaintiffs and this order was confirmed by the Lower Appellate Court. 4 Being aggrieved by the aforesaid two orders, 5 (SA 10 of 2011) Defendant No.1 has filed this Second Appeal under section 100 of the Civil Procedure Code. 5. Firstly, it was submitted that Plaintiffs had specifically pleaded that Defendant No.1 was inducted as a tenant. Defendant No.2 had illegally inducted Defendant No.1 as tenant in the suit land. However, no decree of possession was asked against Defendant No.2 and, therefore, without seeking possession from Defendant No.1, Plaintiffs could not have asked possession from Defendant No.1. It was submitted that the suit/plaint was not properly drafted. Secondly, it was submitted that Defendant No.2 had died during pendency of the suit and suit had abated against her. Since the suit had abated against Defendant No.2, the right to sue could not survive against her. Thirdly, it was contended that Plaintiffs had pleaded in the plaint that the suit land was an agricultural land and that Defendant No.1 was inducted as a tenant in the said agricultural land. It was submitted that in view of this pleading and in view of the provisions of section 85A of the Maharashtra Agricultural Lands Act, the Civil Court had no jurisdiction. Fourthly, it was submitted that the suit was barred by limitation and the provisions of Article 65 of the Limitation Act would be applicable since 6 (SA 10 of 2011) Plaintiffs were seeking possession. It was submitted that Defendant No.1 had stated that he was in possession since 1973 and the suit was filed in 1996. It was submitted that the cause of action would not start from the date on which the entry was made in the 7x12 extract. It was submitted that, at the most it can be said that so far as suit for declaration of the decree as nullity is concerned, it may be within limitation but not the decree for seeking possession. It was submitted that so far as the plea of adverse possession is concerned, a finding had to be recorded de-novo and on account of this, both the Courts had erred in passing the judgment and decree of possession and these were the substantial questions of law which are raised in the Second Appeal. 6. On the other hand, the learned counsel appearing on behalf of the Respondents submitted that Defendant No.1 had obtained a decree by committing fraud on the Court. It was contended that Ramchandra Gupte had died in 1945. It was established by Plaintiffs that Ramchandra Gupte had expired, by producing the documentary evidence on record and, therefore, the Trial Court and the Appellate Court were justified in passing a decree in terms of prayer clause (a) of the plaint. Secondly, it was submitted that so far as Defendant No.1 7 (SA 10 of 2011) is concerned, the Lower Appellate Court had considered this aspect in detail and had observed that no documentary evidence was produced by Defendant No.1 to prove that he was in possession in 1973 and, therefore, theory of adverse possession since 1973 was not considered by both the Courts below. 7. After having heard both the counsel at length, in my view, it will not be possible to interfere with the concurrent finding of fact recorded by both the Courts below. So far as the first submission for not seeking declaration against Defendant No.2 is concerned, the said submission is without any substance. Plaintiffs in their plaint had narrated the chronology of events and had stated that initially the land was given to Defendant No.2, who in turn, had inducted Defendant No.1 and that he was a trespasser since Plaintiffs were seeking possession from Defendant No.1 in respect of the land, which was trespassed by him, the question of seeking a decree of possession as against Defendant No.2 in respect of the said land does not arise. If Plaintiffs had asked for a decree for the entire land, in that case, it would have been necessary to seek the decree as against Defendant No.2 also. For the same reason, merely because the suit against Defendant No.2 had abated, the 8 (SA 10 of 2011) suit as a whole would not abate since the right to sue survives against Defendant No.1 8. So far as the contention of the learned counsel for Plaintiffs that the Civil Court has no jurisdiction is concerned, the said submission also cannot be accepted. For the purpose of finding out whether the Court has jurisdiction or not, the averments in the plaint have to be taken into consideration. There is no averment in the plaint that Defendant No.1 is an agricultural tenant. It is specifically pleaded that Defendant No.1 had constructed illegally a garage. Under these circumstances, in view of this, it cannot be said that the Civil Court did not have jurisdiction. 9. So far as the contention that the suit was barred by limitation in view of the provision of Article 65 is concerned, that cannot be accepted. In the present case, in the written statement, no such averment has been made that the Defendant had become owner by way of adverse possession since 1973. The Defendant merely has relied on the plaint which was filed against deceased Ramchandra Gupte and also the evidence, in which, it was contended that the said evidence may be treated as part of the evidence in this suit. However, he was wise 9 (SA 10 of 2011) enough not to bring the said evidence on record possibly because if the said evidence had been brought on record, the Court could have considered taking action against him for committing perjury. Be that as it may, it is not possible to know the reasons why the said evidence is not brought on record. The fact remains that the said evidence is not a part of the record. The Lower Appellate Court, therefore, has rightly come to the conclusion that Defendant No.1 has not produced any documentary evidence to show that he is in possession since 1973. He has only relied on the two decrees which are obtained by him one against the Corporation and second, against Ramchandra Gupte, who had died in 1945. The learned counsel appearing on behalf of the Original Plaintiff has rightly pointed out that even in his evidence, he has given contradictory version. At one stage he has stated that Ramchandra Gupte is still alive. Thereafter, in the cross-examination he has stated that he never met Ramchandra Gupte. Whereas, in examination-in-chief, he stated that he met Ramchandra Gupte in 1973-74. The Lower Appellate Court, therefore, has considered the material on record and has given a finding that it cannot be said that the Court has not addressed itself the question of adverse possession though it was not specifically pleaded by Defendant No.1 in his written 10 (SA 10 of 2011) statement. 10. Normally, while examining jurisdiction under section 100 of the CPC, this Court is not expected to re- appreciate the evidence or go through the evidence on record. However, in order to deal with the submissions which were made by the learned counsel appearing on behalf of Defendant No.1, it was necessary to refer to pleadings and the evidence of Defendant No.1 for the purpose of stating that the Lower Appellate Court was right in not accepting the contention of Defendant No.1. In the present case, Defendant No.1 had not come to the Court with clean hands. He tried to obtain the decree by exercising fraud on the Court and, thereafter, changed the revenue records. He was unable to point out why he did not change the revenue records since 1973 when he had been inducted by Ramchandra Gupte. 11. The Apex Court in a recent judgment in the case of – Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent [(2009) 4 Supreme Court Cases, 244] has deprecated the practice of interference of the High Court interfering with the finding of concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty- 11 (SA 10 of 2011) fourth Report of the Law Commissioner of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taken into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial 12 (SA 10 of 2011) questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” 11. Under these circumstances, in my view, it will not be possible to interfere with the judgment and order passed by both the Courts below. Hence, Second Appeal is dismissed. 12. The learned counsel appearing on behalf of Defendant No.1 submits that the decree may not be executed for a period of ten weeks in order to enable him to challenge the order of this Court in the Apex Court. The Decree shall not be executed for a period of ten weeks. Defendant No.1-Appellant herein shall not create any third party rights and shall file an undertaking in usual terms within two weeks. 13. Civil Application does not survive and is also disposed of. (V.M. KANADE J.)