Dismissed

Mr. Suvarnkumar v. Verlekar and Anr., v Kishor B. Verekar (Since Deceased) through His Lr'S

Bombay HC27 Sept 2013SA/36/2013

Case brief

AI extract

What is this about?

In this second appeal regarding eviction and property ownership, the High Court dismissed the appeal. The court held no substantial question of law arose as lower courts correctly rejected the licensee claim. Interest was reduced to 10%, and appellants were granted time to vacate with compensation.

What did the court decide?

Interest reduced to 10%; Appellants granted time to vacate premises by 31/03/2014 upon undertaking to pay Rs.2,000/month compensation.

Mr. Suvarnkumar v. Verlekar and Anr., Vs Kishor B. Verekar (Since… — Partition | Bombay HC (2013)

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SA36/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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SECOND APPEAL NO.36/2013

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Mr. Suvarnkumar V. Verlekar and other.

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and other. .. Appellants Versus Kishor B. Verekar, since deceased, through his Legal Representatives .. Respondents.

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Mr. S. D. Lotlikar, Senior Advocate with Mr. J. Simoes, Advocate for the appellants.

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Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondents.

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CORAM :- R. M. SAVANT, J. DATE : 27th September, 2013.

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P.C.

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The judgment and decree passed by the Lower Appellate Court i.e. the District Judge-I, Panaji dated 27/01/2012, by which the decree passed by the Trial Court dated 31/03/2009 came to be confirmed, is the subject matter of the above Second Appeal. The appellants herein are the original defendants and the respondent herein is the original plaintiff.

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The suit in question was filed by the respondent herein for eviction and restoration of possession of the flat in

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question which is in occupation of the appellants herein. The plaintiff is the owner of the plot of land being plot No.G-3 of La Campala, Residential Colony situated at Dayanand Bandodkar Marg, Panaji. The said plot admeasures 300 square metres and within the jurisdiction of erstwhile Panaji Municipal Council now the Panaji Municipal Corporation. The said plot of land was purchased by the plaintiff from one Real Estate Agency by Sale Deed dated 17/11/1978. The plaintiff, after obtaining the construction licence from the Panaji Municipal Council being original licence No.13/11/Ad/79/PMC/203 dated 26/07/1979 and renewal licence dated 16/07/1980 and 01/10/1981, constructed the ground floor of the building having built up area of 150.45 square metres. The said ground floor area comprises of two flats one facing to North and one facing to South. The plaintiff obtained occupancy certificate from Panaji Municipal Council dated 14/12/1981. The said building constructed by the plaintiff was named as Laxmi and it is the case of the plaintiff that he occupied the same from 23/12/1981. The plaintiff has, thereafter, also constructed a first floor to the said building.

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Insofar as the funding for the said construction carried out by him is concerned, the plaintiff being a Government Servant at the relevant time, obtained the house building

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advance of Rs.52,800/- vide Government order dated 03/11/1978. The plaintiff also raised the amount through withdrawal from his Provident Fund Account as also raised an amount of Rs.30,000/by selling gold ornaments of his wife. The plaintiff has also utilised the savings he had, for carrying out the construction. It is the case of the plaintiff that the plaintiff and the defendant had close family relations and that the defendant used to visit the plaintiff's house and was treated as a honoured guest. It was the case of the plaintiff that in view of the difficulty faced by the defendant on account of the fact that his marriage to a particular girl was not acceptable to his parents that the plaintiff permitted him to reside in the flat facing southern side some time in the year 1985. It was the case of the plaintiff that the the defendant had advanced to him as and by way of loan an amount of Rs.60,300/- for the purpose of construction of the house. It was the case of the plaintiff that the defendant was to reside in the said premises for a period of one year till he made up with his parents and then he was to vacate the premises in question and shift back to his parental house in Mala, Panaji. The plaintiff requested the defendant to vacate the premises in question. However, on refusal of the defendant to vacate the premises, he was constrained to file the suit in question for eviction and restoration of possession of the flat in question to him.

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The case set up by the defendant was that the plaintiff had approached him with the proposal that both the plaintiff and he should construct two separate flats one flat being for the plaintiff in the half of the suit plot and the other for the defendant in the other half portion of the plot. It was the case of the defendant that the plaintiff wanted the defendant to cover the short fall of the construction cost of the plaintiff's flat and the plaintiff agreed to return the amount spent by the defendant on the flat of the plaintiff. It was further the case of the defendant that he was to bear half costs of the land. In fact, in his written statement, the defendant has averred that he has contributed an amount of Rs.7,000/- towards the costs of the land. The defendant has also filed a counterclaim in the said suit and reliefs claimed in the said counterclaim were to the following effect :

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“10(a) It may be declared that the defendant has constructed the defendant's flat in the southern half portion of the chalta no.51,P.T. Sheet no.115 of City survey of Panaji out of his own money for himself and that the defendant is owner thereof.

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(b) The plaintiff and his family members or any person claiming through him may be restrained from interfering with the possession and enjoyment of the

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defendant with respect to southern half portion of the suit plot.

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(c) The plaintiff be ordered to pay Rs.20,500/- (Rs. Twenty thousand five hundred) spent by the defendant on the plaintiff's flat along with 18 percent interest for the last three years and for the period till the said amount is paid.”

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It is on the basis of the aforesaid pleadings that the parties went to the Trial Court. The parties led evidence in support of their respective assertions, whereas it was the case of the plaintiff that the defendant was in permissive occupation of the premises in question as being a friend. It was the case of the defendant that the plaintiff, by asking him to expend the amount for construction of the flat, had created a right in his favour by way of licence with grant. The plaintiff examined three witnesses i.e. himself, the Architect-cum-contractor Mr. Bal Krishna Pai and one more witness, which was in respect of the claim of mesneprofits. The defendant examined five witnesses, which included himself and four other witnesses i.e. DW2 to DW5. The Trial Court, on the basis of the oral evidence on record, especially the evidence of DW2 to DW5, came to a conclusion that the said evidence would not prove that there was oral agreement between the plaintiff and the defendant as regards the said flat. Insofar as the evidence of the Architect-cum-Contractor Mr. Pai is

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concerned though the defendant tried to lay much store on the evidence of the said witness, the Trial Court was of the view that the said evidence would not further the case of the defendant insofar as the licence being granted with a grant is concerned. The Trial Court also adverted to the fact that all the licences/ permissions etc. were in the name of the plaintiff and the Trial Court discountenanced the fact that certain documents i.e. the tax receipts were in possession of the defendant. The Trial Court also did not countenance the documents by way of gas connection, telephone bills, as the said documents were for the period after 1985 i.e. the period of 1986-87, 1987-88. The Trial Court was of the view that it was unfathomable that a person who claims to have expended amount towards the construction, would not take anything in writing from the plaintiff. The Trial Court, accordingly, decreed the suit insofar as the eviction of the defendant from the suit property was concerned and also dismissed the counterclaim filed by the defendant by its judgment and order dated 31/03/2009.

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The defendant carried the matter in Appeal by filing Regular Civil Appeal No.65/2009. The Lower Appellate Court, on a reappreciation of the material on record, did not deem it appropriate to interfere with the decree passed by the Trial

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Court and has, accordingly, dismissed the Appeal by the impugned judgment and order dated 27/01/2012. The Lower Appellate Court has also held that the amount of mesne-profits need not be interfered with as also the amount payable by the defendant for the use of the premises from the date of decree till handing over of possession. As indicated above, it is the said judgment and decree dated 27/01/2012 passed by the Lower Appellate Court which is taken exception to by way of the Second Appeal.

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The learned Senior Counsel appearing on behalf of the appellants would contend that the findings recorded by the Courts below are perverse in the teeth of the evidence on record. The learned Senior Counsel laid emphasis on the fact that there is unimpeachable evidence on record to show that the defendant was supervising the construction while it was going on in respect of the suit flat and in the absence of any explanation thereof from the plaintiff, the Courts below ought to have taken into consideration the evidence in the context of the fact that it was also the case of the plaintiff that licence was created in favour of the defendant. The learned Counsel in support of the contention that the decrees passed by the Courts below suffer from nonconsideration of the relevant evidence on record, relies upon the

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judgment of the Apex Court reported in 1992(1)SCC 647 in the matter of Jagdish Singh Vs. Natthu Singh wherein the Apex Court has held that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.

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Per contra, Shri D'Costa, the learned Senior Counsel appearing on behalf of the respondents no.1 to 3, 6 to 8 would support the decrees passed by the Courts below and would contend that the submissions advanced by the learned Senior Counsel appearing on behalf of the appellants revolve around the submission that a different view was possible to be taken on the basis of the evidence on record, the same, therefore, would not give rise to a substantial question of law and relies on the judgment of the Apex Court reported in 2012(7) SCC 288 in the matter of Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, wherein the Apex Court in paragraph 37 has held that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. The learned Senior Counsel would contend that the defendant no.1 is not sure of his case, as on the one hand, he claims to have contributed to

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the price of the land, but does not lead any evidence and on the other hand, he claims to have a licence with a grant.

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Having heard the learned Senior Counsel appearing for the parties and having considered the rival contentions, in view of the concurrent findings recorded by the Courts below, the above Second Appeal does not raise any substantial question of law. It is required to be noted that both the Courts below, on the basis of the evidence on record, have rejected the case of the respondent of being licencee coupled with grant, what is to be borne in mind is that a different view is possible to be taken on the basis of the same evidence, cannot be a substantial question of law, is well settled by the dictum of the Apex Court. As rightly held by the Courts below, the case of the defendant no.1 that he is the owner of the flat in question on the basis of the contribution made by him towards the cost of the land, and the cost of the construction militates against his case of being a licencee coupled with a grant. No fault, therefore, can be found with the approach of the Courts below.

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For the reasons as aforestated, the above Second Appeal is dismissed.

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The learned Senior Counsel appearing on behalf of the respondents i.e. the heirs of the original plaintiff insofar as the interest awarded by the Trial Court is concerned, makes a statement that his clients would be satisfied if the rate of interest awarded by the Trial Court is reduced to 10 % by this Court. Hence, the rate of interest payable by the appellants to the respondents, is reduced to 10% from 18 % which is granted by the Courts below.

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At this stage, the learned Senior Counsel appearing for the appellants seeks time up to 31/03/2014 to vacate the premises in question. The learned Senior Counsel appearing on behalf of the respondents leaves it to this Court. The appellants are, therefore, granted time up to 31/03/2014 to vacate the premises in question by furnishing the usual undertaking to this Court within two weeks from date. The said undertaking would inter alia include a statement that the appellants would continue paying the compensation at the rate of Rs.2,000/- per month till the date he vacates the premises in question. In the event such an undertaking is not filed, the respondent then would be free to execute the decree in accordance with law.

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