Dismissed

Shankar Maruti Dighe and Others v. Genu Maruti Dighe and Another

Bombay HC3 Feb 2014CRA/119/2014

Case brief

AI extract

What is this about?

The High Court dismissed civil revision applications filed by a brother challenging eviction decrees. The court held that the Appellate Court correctly found the disputed premises were not joint family property, rejecting claims of self-acquisition acquiescence by the applicant. Consequently, no case was made out for invoking curative jurisdiction under Section 115 of the CPC.

What did the court decide?

Civil Revision Applications dismissed. Eviction decree upheld, subject to a stay pending filing of undertakings within 4 weeks.

Shankar Maruti Dighe and Others Vs Genu Maruti Dighe and Another — Partition | Bombay HC (2014)

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(1) (3 & 4) CRA 118/14 & 199/14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Amk

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CIVIL REVISION APPLICATION NO. 118 OF 2014 WITH

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CIVIL REVISION APPLICATION NO. 119 OF 2014

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Shankar Maruti Dighe & Ors. Vs.

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Genu Maruti Dighe & Anr.

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.. Applicants

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.. Respondents

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Mr. Dharam Sharma i/b Dharam & Co. for the Applicants. Mr. Ghanshyam Mishra for Respondent No.1.

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CORAM : R. G. KETKAR, J. DATE : 3 rd FEBRUARY, 2014.

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P.C.

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Heard Mr. Dharam Sharma, learned Counsel for the applicants

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and Mr. Ghanshyam Mishra, learned Counsel for Respondent No.1 at length.

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Civil Revision Application No. 118 of 2014 is preferred by the plaintiff/Shankar Maruti Dighe (for short hereinafter referred to as “Shankar”) challenging the judgment and decree dated 03.12.2013 passed by the Appellate Bench of the Small Causes Court in R. A. D. Appeal No. 1 of 2013. By that order, the Appellate Court allowed the appeal preferred by respondent No.1 Genu Maruti Dighe (for short hereinafter referred to as “Genu”) and quashed and set aside the judgment and decree dated 23.12.2011 passed by the learned Judge, Court Room No.11 of Small Causes Court at Bombay in R. A. D. Suit No. 896 of 2002. The Appellate

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(2) (3 & 4) CRA 118/14 & 199/14

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Court dismissed the suit instituted by Shankar against Genu and Chandrakant G. Mahimkar (for short hereinafter referred to as “landlord”). Shankar had instituted the suit against Genu and the landlord for declaration of his tenancy rights in respect of Room No.3 admeasuring 300 sq. ft. situate on the ground floor of Mahimkar Building at Bangad Wadi, S. V. P. Road, Mumbai 400 004 (for short hereinafter referred to as “Suit premises”).

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Civil Revision Application No. 119 of 2014 is instituted by shankar challenging the judgment and decree dated 03.12.2013 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No. 2 of 2013. By that order, the Appellate Court allowed the appeal and quashed and set aside the judgment and decree dated 23.12.2011 passed by the learned Judge, Court No. 11 of Small Causes Court at Mumbai in L. E. Suit No. 93 of 2008. The Appellate Court decreed that suit of Genu and directed Shankar to hand over vacant and peaceful possession of the suit premises within the period of 4 weeks from the date of the order. L. E. Suit No. 93 of 2008 was instituted by Genu against Shankar and his family members for mandatory order to remove themselves along with their belonging from the suit premises; for perpetual injunction restraining them from entering, remaining and occupying any part of the suit premises.

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In support of these applications Mr. Sharma strenuously contended that the Appellate Court committed serious error in holding that

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(3) (3 & 4) CRA 118/14 & 199/14

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the suit premises is not a joint family property. He submitted that Genu is elder brother of Shankar and they constituted a joint family. He invited my attention to the oral evidence of PW 1 Shankar and DW 1 Genu. In particular he invited my attention to the following statements made by Genu during the course of his cross-examination :

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I know that for taking suit premises Rs.22,000/- were spent. It is false to say that defendant no.1 had spent Rs.22,000/- from his pocket and took the suit premises on his name. It is not true to say that the defendant had taken the suit property for his personal use. It is not true to say that when the suit premises was taken as such defendant was in service at Bombay Central and he had taken loan of Rs.20,000/- for the suit premises. It is not true to say that defendant had taken loan of Rs.20,000/- from his employer. It is not true to say that defendant had never taken a single paisa from him to take the suit premises at the relevant time.

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Que.: Do you have any evidence to show that you had paid some money for taking the suit premises ?

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Ans.: I have no evidence. (witness our volunteers that our family was joint and defendant was looking after its affairs. 2. It is not true to say that defendant has taken the suit premises from his own money. It is not true to say that I have no concern or coherence with the suit premises in any manner. It is true that when I came from Bangalore to Mumbai there was nothing with me for my residence. It is not true to say that, at that time defendant no.1 had permitted me to reside with him in the suit premises. It is not true to say that I had never given the rent of the suit premises to the landlord.

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Mr. Sharma also invited my attention to the findings recorded

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by the Appellate Court in paras 18 & 19 therein. He submitted that it has

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come on record that Shankar was paying electricity bills. However the Appellate Court has not all considered this aspect. He submitted that after considering the evidence on record, the learned trial Judge rightly decreed

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(4) (3 & 4) CRA 118/14 & 199/14

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the suit instituted by Shankar for declaration of his tenancy right and at the same time rightly dismissed eviction suit instituted by Genu. However, the Appellate Court committed serious error in misreading and appreciating the evidence on record. He, therefore, submitted that the applications require consideration.

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On the other hand Mr. Mishra supported the impugned order. He submitted that in the present proceeding Shankar is coming out with the case that the suit premises is a joint family property. However in the year 1996 he had instituted a Short Causes Suit No. 2563 of 1996 in the City Civil Court at Mumbai. In that suit, Shankar claimed that he is exclusive owner of the suit premises and Genu has no right, title and interest therein. In that suit, Shankar took out Notice of Motion for interim reliefs. The said Motion was dismissed and the Appeal challenging that order was also dismissed. Shankar thereafter withdrew the suit unconditionally on 24.04.2002. The present suit is instituted for declaration of his tenancy right on the ground that it is a joint family property. He submitted that the Appellate Court after considering the evidence on record has held that the Shankar did not establish that the suit premises is a joint family property. The Appellate Court also considered the electricity bill relied upon by Shankar and observed in para 25 that it is in the year 2002 i.e. after the relations between the parties were strained. He, therefore, submitted that no case is made out for invocation of power

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(5) (3 & 4) CRA 118/14 & 199/14

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under Section 115 of the C.P.C.

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I have considered rival submissions made by the learned Counsel for the parties. I have also perused the material on record. It is not in dispute that Shankar had instituted Small Causes Suit No. 2563 of 1996 in the City Civil Court at Mumbai. Shankar claimed that he is in exclusive possession, occupation of the suit premises. In that suit Shankar came out with the case that Genu has no right, title and interest therein. Prayers (a) to (c) of the suit read as under:

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The Plaintiff therefore prays that -

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a. that this Hon'ble Court be pleased to declare that the Plaintiff and his members of his family are only entitled to use, occupy, possess and to reside in the suit premises at Bangad Wadi, Mahimkar Building, Room No.3, Ground Floor, S. V. P. Road, Mumbai 400 004;

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b. that this Hon'ble Court be pleased to order to the Defendants and his family members to vacate the suit premises and to handover peaceful and vacant possession of the suit premises to the Plaintiff and his family members;

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c. That defendants, his/her servants, agents, representative and/or any other person(s), claiming on his/her behalf or through his/her behalf may be restrained to by an order of injunction of this Hon'ble Court, in the nature of permanent injunction to restrain the defendants and other persons on her/his behalf from dispossessing and/or disturbing the Plaintiff's peaceful possession of the suit premises and/or entering upon the suit premises and/or any part thereof namely room No.3, Ground Floor, Bangad Wadi, Mahimkar Building, S. V. P. road, Mumbai 400 004.

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It is also not in dispute that pending the suit, Shankar took out

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Notice of Motion for interim relief which was dismissed. Aggrieved by that order Shankar preferred an appeal which was also came to be dismissed. On 24.04.2002 Shankar unconditionally withdrew the suit stating that he

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(6) (3 & 4) CRA 118/14 & 199/14

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does not wish to proceed. The suit was dismissed by the City Civil Court for want of prosecution.

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Pending the suit before the City Civil Court Shankar instituted the present suit for declaration in March, 2002. In the present suit Shankar has come out with the case that the suit premises is a joint family property. Genu instituted eviction Suit No. 4411 of 2002 in the City Civil Court against Shankar and his family members on the ground that he has gratuitous licensee.

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In view of the decision of the Full Bench in the case of Prabhudas Damodar Kotecha Vs. Manharbala Jeram Damodar, 2007(5)

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Mh. L. J. 341 the plaint was returned to the Small Causes Court and the suit was registered as L. E. Suit No. 93 of 2008. The Appellate Court from para 18 onwards considered whether the suit premises is a joint family property or not. The Appellate Court considered the propositions under Hindu Law and observed that consideration of proof of existence of a joint family does not lead to the presumption that the property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possesses some joint property which from its nature and relative value may have formed the nucleus from which the property in question is acquired, the burden shifts to the party alleging self-

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(7) (3 & 4) CRA 118/14 & 199/14

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acquisition to establish affirmatively that the property is acquired without the aid of joint family property. There is no presumption that a Hindu family merely because it is joint, possesses any joint property. From para 19 onwards the Appellate Court considered various circumstances that on record. In particular Shankar admitted that he has no evidence to show that he contributed joint family expenses. Till his marriage in 1967 he has given salary to Genu. The Appellate Court also noted his other brothers Nivrutti and Kisan were not examined by Shankar to substantiate his plea that the suit premises was acquired for the benefit of his joint family. The Appellate Court also considered that it has come in the evidence of Genu that he was required to send money to the native place, which fact shows that there was no sufficient and surplus income generated from the agricultural land. The Appellate Court also considered the purchasing of agricultural land by Genu at Pachwad, District-Satara during the lifetime of their father.

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The Appellate Court also noted that from the evidence on record it was evident that Genu had paid Rs.22,000/- to the landlord and the said evidence was not challenged.

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After considering the evidence on record, I do not find that the Appellate Court has committed any error in dismissing the suit instituted by Shankar of declaration of his tenancy rights and decreeing the suit instituted by Genu for eviction of Shankar and his family members. It

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(8) (3 & 4) CRA 118/14 & 199/14

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cannot be said that the findings recorded by the Appellate Court are perverse being based on evidence on record or that on the basis of evidence on record no reasonable and prudent person would have come to that conclusion. After considering the material on record I am satisfied, no case is made out under Section 115 of the C.P.C. Civil Revision Applications are dismissed.

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At this stage Mr. Sharma orally prays for stay of eviction decree for the period of 12 weeks from today. He states that Shankar and all the adult family members will give usual undertaking within 4 weeks from today after giving advance copy to the other side incorporating therein (i) that they are in possession of the part of the suit premises and they are in joint possession with Genu; (ii) that they have neither created any third party interests nor parted with possession; (iii) that they will hereafter neither create third party interests nor part with possession (iv) that in case they are unable to obtain suitable orders from higher Courts within 12 weeks from today, they will vacate and hand over peaceful possession of the suit premises to Genu by removing all their belongings. 14. Subject to the applicants in each of the applications giving undertaking in each application within 4 weeks from today, the eviction decree shall not be executed.

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It is made clear that in case the applicant does not file undertakings within the stipulated period and/or commits breach any of

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(9) (3 & 4) CRA 118/14 & 199/14

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the conditions of the undertaking, respondent Genu would be at liberty to proceed with the matter in accordance with law.

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It is also made clear that in case applicant Shankar does not obtain any suitable orders from the higher Court within 12 weeks from today and does not vacate the suit premises, respondent Genu would be at liberty to proceed with the matter in accordance with law. Order accordingly.

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(R. G. KETKAR, J.)

Shankar Maruti Dighe and Others v. Genu Maruti Dighe and Another

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Shankar Maruti Dighe and Others v. Genu Maruti Dighe and Another

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