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Judgment
On 11/9/2003 this Second Appeal was admitted on the following substantial questions of law:
(a)Whether the basic premise adopted by the Appellate Court that depsite destruction of the alleged  tenanted  premises,  the Â
tenancy  therein continuous/survives, is legal in view of the ruling of the Apex Court in the case of Vannattan Kandy Ibrarji Vs/ Kunhabdull Hajee
reported in (2001) 2 SCC 564?
(b)Whether, the Lower Appellate Court erred in holding that in view of Order 41, Rule 22 (1), the Appellant as a Respondent before the Lower
Appellate Court cannot be permitted to challenge the findings of the Trial Court to the effect that Smt. Prema A. Naik was a tenant in the absence of
a cross objection ?
(c)Whether the purported Agreement (Exhibit 114) alleged to have been written by the father of the plaintiff was no legal evidence in the eyes of law,
in as much as the same was not proved by the respondents in terms of sections 67 and 73 of the Indian Evidence Act, as the Appellants had denied
that the hand writing in the said agreement, was of the father of the plaintiff, more particularly, when the said document was not at all signed by
anybody.
(d)Whether in view of the provisions of Order VI Rule 4 C.P.C the claim of tenancy of the respondents being vague the same ought to have been
rejected by the lower court?
During the course of hearing the following additional substantialquestions of law came to be framed on 14/2/2018 :
(e) Whether the findings recorded by the first appellateCourt and particularly as to the appreciation and construction placed on Exhibits 113, 113A,
114 and 140 are perverse, being against the weight of the evidence on record and based on conjectures and surmises?
(f) Whether the first appellate court while deciding theappeal exceeded its jurisdiction as circumcised by Order 41 Rule 31 of C.P.C.?
(g) Whether the defendant no.3 is a necessary party tothe suit, in the absence of whom, the suit could not have been decreed ?.
I have heard the learned counsel for the parties on all the substantialquestions of law as framed and the appeal is being disposed of finally.
The brief facts necessary for the disposal of the appeal may be statedthus:
That the appellants are the original plaintiffs, while the respondent nos.1 to 8 are the legal heirs of the defendant no.1 Mr. Atchut Naik (since
deceased). The respondent no.9 is the original defendant no2. One Sharad Kamli, who was defendant no.3 came to be deleted, during the course
of the trial of the suit. For the sake of convenience the parties are referred to in their original capacity as plaintiffs and defendants.
The plaintiffs filed Special Civil Suit No.175/ 1984Â against thedefendants for recovery of possession and injunction and for some consequential
reliefs. The case made out in the plaint is that the property surveyed under P.T.S No.242 of Chalta no.4 better known as “Naicalem bhatâ€
situated at Cine Vishant Aquem, Margao, Goa (the said property, for short) was owned by Gurudas Sadashiv Tirodkar, who died somewhere in the
year 1969, as a bachelor. After his death the said property devolved on his parents, namely, late Sadashiv Tirodkar and his wife Kamlabai, who is
the plaintiff no.1. The plaintiff nos.2 to 18 are the daughters/sons -in -law of Sadhashiv and Kamlabai. The plaintiffs no. 2 to 18 inherited a share
in the said property, upon the death of Shadashiv, somewhere in May 1983.
The defendant nos 1 and 2 are businessmen, while the third defendantis said to be an architect/contractor. Late Sadashiv Tirodkar entered into an
agreement, with the third defendant for the purpose of development of the said property, by constructing a multi-storied building thereon. Two
Agreements both dated 18/8/1980 came to be executed between Sadashiv and the third defendant setting out the terms of the construction to be
undertaken by the third defendant. However, it appears that disputes and differences arose between the parties, as to the interpretation of the said
agreement which were eventually settled by a Deed of amicable settlement on 28/2/1983. Suffice it to mention that as per the approved plan, there are
five flats to be constructed on the ground floor of the proposed building. Four out of the five flats are facing the internal road towards east, while
flat no.1 was facing the Aquem Margao main road. The said flat facing south consists of two segments which are identified as flat no.1-A and flat
no.1-B.
It appears that there was a gada in the said property on the southernside along the Margao-Aquem road which was in possession of the defendant
no.1. The material case made out in the plaint is that on 11/11/1983 the defendant nos.1 and 2, in connivance with the third defendant, forcibly
trespassed into flat no.1-B and occupied the same where the defendant no.1 is running a laundry, under the name and style as 'AMA Laundry'. On
the same day, the defendant nos.1 and 2 illegally demolished the gada belonging to the plaintiff.
The plaintiffs further claimed that somewhere in the month of January1983 the defendant no.1 was allowed to store some scrap material in flat
no.4-B which is located on the ground floor. However, the said portion has since been vacated by the defendant no.1 and that dispute no longer
survives. It was also alleged that somewhere on 10/11th November the defendant no.3 illegally allowed one Ganga Sawant to occupy flat
no.1-A in respect of which a separate suit was instituted. Presently we are only concerned with flat no.1-B where the defendant no.1 is said to be
running a laundry which is subject matter of dispute and is hereinafter referred to as the suit flat/shop.
One of the terms of the amicable settlement dated 28/2/1983 was thatthe defendant no.3 (Promoter) was to handover possession of flat no.14 and
all the flats on the ground floor of the said building, except flat /shop, which is same as the flat no.1-B, within a period of three months from the date of
execution of the agreement. Be that as it may, the plaintiffs in such circumstances filed a suit for possession of the flat no.1-B and for certain
other reliefs and to restrain them from re-erecting the gada or carrying out any business activity in the suit flat/shop.
The defendant no.1 filed a written statement on 31/7/1985 and anadditional written statement on 13/1/1988 and resisted the suit. The adverse
allegations were denied. It was denied that the defendant on 11/11/1983 illegally occupied the suit flat/shop, with the connivance of the defendant no.3.
It was denied that the gada was illegally demolished. It was contended that the said structure of the gada was demolished and/or removed at the
instance of the plaintiffs and at the express request of late Shri Tirodkar after the defendant no.1 was put in possession of the alternate premises,
namely, the suit shop/flat in the newly constructed building. In short, according to defendant no.1 the plan for the entire bundling was sanctioned on the
condition that the gada would be demolished, where the defendant no.1 was carrying on business activity with due consent and authority from the
landlord as a tenant thereof. It was contended that their tenancy right in respect of the gada stood transferred from old premises to the suit
shop/flat.
On the basis of the rival pleadings the learned trial court framed asmany as thirteen issues on 10/10/1985 and an additional issue on 11/1/1988.
The parties led oral and documentary evidence.
The learned trial court by a judgment and decree dated 23/10/1998 decreed the suit directing the defendant nos.1 and 2 to quit and vacate the suit
flat and to hand over vacant possession of the same to the plaintiffs.
Feeling aggrieved the defendant no.1 challenged the same before thelearned District Judge in Regular Civil Appeal no.9/1999. The learned District
Judge by a judgment and order dated 13/10/2000 allowed the appeal thereby dismissing the suit. Feeling aggrieved the original plaintiffs are before this
Court.
I have heard Shri Desai, the learned Senior Counsel for the Appellantsand Shri Coutinho, the learned counsel for the respondents. The parties
have also filed written submissions on record. With the assistance of the learned counsel for the parties I have gone through the record.
It is submitted by Shri Desai, the learned Senior Counsel for theappellants that the basic premise adopted by the appellate court that despite
destruction of the alleged tenant premises i.e. the gada, the tenancy continues/survives is not legal. This according to the learned Senior Counsel isÂ
notwithstanding the fact that the decision of the Hon'ble Supreme Court in the case of Vannattan Kandy Ibrarji Vs. Kunshabdull Hajee (2001) 2
SCC 564 has since been overruled by a larger bench in the case of M/s. Shah Ratansi Khimji (2014) 6 ALL MR 465 (S.C).This according to the
learned Senior Counsel is on account of the fact that the proviso to section 108-B (e) of the Transfer of Property Act 1881 did not fall for
interpretation in either of these cases. It is submitted that in the present case the proviso to section 108-B (e) of the Transfer of Property Act is
attracted in as much as the destruction of the kiosk/gada, was voluntarily undertaken by the defendant no.1 and therefore the alleged tenancy in
respect of the said gada/kiosk and the land appurtenant thereto would not survive.
It is submitted that the learned appellate court was in error in holding that the appellant (respondent before the learned appellate court) cannot be
permitted to challenge the finding of the trial court to the effect that Smt. Prema A. Naik was a tenant in the absence of cross objection. It is
submitted that the finding is against the mandate of Order 41 Rule 22 (1) of C.P.C.
It is submitted that the purported agreement (Exhibit 114) alleged tohave been written by the father of the plaintiff was inadmissible and could not
have been construed as a legal evidence, in as much as the same was not proved in terms of section 67 and section 73 of the Indian Evidence Act. It
is pointed out that the appellants denied that said agreement was in the hand writing of late Shadashiv Tirodkar. It is pointed out that the said
agreement is also not signed.
It is submitted that under the provisions of Order 6 Rule 4 of C.P.C.,the claim of tenancy set up by the respondents, ought to have been rejected
by the Courts below being vague. It is pointed out that it was necessary for the defendant no.1 to have specifically pleaded as to when the alleged
tenancy in respect of the gada/kiosk was created and in whose favour. It is submitted that in the written statement filed on 31/7/11985 there is
nothing about the alleged tenancy in respect of the said gada/kiosk. It was pointed out that the said written statement was amended to include a plea
that defendant no1. was paying Rs.20/- per month as rent in respect of the said gada/kiosk and it was tenanted to his wife Prema Naik. It is submitted
that the documents at Exhibit 113 and 113-A did not substantiate the case of any such tenancy, particularly when none of these documents can take
the place of a formally drawn lease deed, which is not forthcoming in this case. It is submitted that the issue of tenancy could not be inquired into by
the courts below, in the absence of Prema Naik, as a party to the suit and no such issue was framed.
It is submitted that the finding recorded by the first appellate courtparticularly as to the appreciation and construction of the documents at Exhibits
113, 113-A, 114 and 140 are perverse, as they are against the weight of the evidence on record and are based on conjectures and surmises. It is thus
submitted that the concurrent findings by the courts below on the issue of alleged tenancy of the gada/kiosk being perverse can be interfered withÂ
in a second appeal.   Â
It is submitted that the first appellate court while deciding the appealexceeded its jurisdiction, as circumcised by Order 41 Rule 31 of C.P.C. It is
submitted that the first appellate court failed to formulate the points for determination in terms of Order 41 Rule 31 of C.P.C and to afford an
opportunity to the respondents. In this regard reliance is placed on the decision of the Supreme Court in the case of Santosh HazariÂ
Vs.Purushottam Tiwari (deceased) by LRS 2001 (3) SCC 179. It is submitted that the appellate court has conducted itself, as a trial court, which is
impermissible.
It is next contended that the deletion of defendant no.3 has no effecton the suit being proceeded and decreed as prayed, inasmuch as defendant
no.3 cannot be said to be a necessary party to the suit. It is pointed out that defendant no.3 was originally made a party defendant, as there were
certain reliefs claimed against him with reference to the deed of amicable settlement dated 28/2/1983. It is submitted that during the pendency of the
suit the dispute between the appellants and the defendant no.3 was settled and as such, the defendant no.3 as a promoter, came to be dropped/deleted.
It is submitted that notwithstanding this, the defendant no.3 came to be examined as DW.3 by the defendant no.1 and thus any defence of the
defendant no.3 was available to be considered by the trial court and thus the deletion of defendant no.3 is inconsequential. It is submitted that the
finding recorded by the lower appellate court that the defendant no.3 was a necessary party is perverse, particularly in view of the fact that he was
examined as DW3 by the defendant no.1.
The learned Senior Counsel has also raised certain contentions on thebasis of Articles 2169, 474, 483, 484, 487, 488 and 490 of the Portuguese
Civil Code, in order to demonstrate the concept of the possession and the rights of the co owners of the property. In short, the contention is that the
possession of the suit property was never handed over to defendant no.3. The learned Senior Counsel has also referred to Articles 117, 199 of the
Portuguese Civil Code, in order to submit that it was not open to now deceased Sadashiv Tirodkar to give consent unilaterally on his own
without the consent of his wife, since Sadashiv and plaintiff no.1 were married under the regime of communion of assets, in terms of Article 108 of
the Portuguese Civil Code. It is submitted that Article 119 prohibits sale or encumbrance of the common property belonging to both the spouses,
without the common consent and agreement. On behalf of the appellants reliance is placed on the following decisions:
(i)Â Santosh Hazari Vs. Purushottam Tiwari (deceased) By Lrs (2001) 3 SCC 179.
(ii) Shivram Ladu Nitardekar Vs. Alex Ferandnes & Ors. 2006 (1) AIR Bom R 24.
(iii) Vannattankandy Ibrayi Vs. Kunhabdulla Hajee (2001) 1 SCC 564.
( iv)Â Abdul Raheem Vs. The Karnataka Electricity Board and others AIR 2008 SC 956.
(v) Mohd. Laiquiddin and another Vs. Kamala Dev Misra (dead) by L.Rs and ors. (2010) 2 SCC 40.
Lastly it is submitted that the second appeal filed by Ganga Sawantbeing S.A. No.136/2011 has been dismissed by this Court on 1/12/2016 and as
such, the present appeal ought to be allowed and the suit needs to be decreed as prayed.
On the contrary it is submitted by Shri Coutinho, the learned counselfor defendant no.1 that there are concurrent findings of fact recorded by
the Courts below that defendant no.1 was a tenant in respect of a kiosk located in the suit property and the said finding not being perverse, is not
amenable to challenge in a second appeal.
It is submitted that the appellate court has reversed the finding of thetrial court where the trial court had held that defendant no.1 is a trespasser .
It is submitted that the said finding has been recorded on proper appreciation of the oral and documentary evidence on record. It is pointed out that the
finding recorded by the trial court was principally on account of the fact that the communication marked “Xâ€Â was not duly exhibited which
has subsequently been exhibited before the appellate court as Exhibit 140. It is submitted that the appellate court has rightly come to the conclusion
that late Shadashiv Tirodkar had promised defendant no.1 to be accommodated in the newly constructed building and as the development of the
property was done in phases, defendant no.1 was first accommodated in shop no.4-B and thereafter in shop no.1-B. It is submitted that the appellate
Court has rightly come to the conclusion that the defendant no.3 was a necessary party and once defendant no.3 was deleted, the suit was not
maintainable as the suit was filed essentially for violation of the amicable settlement dated 20/2/1983.
In so far as the substantial questions of law are concerned, it issubmitted that the substantial question of law at serial no. (a) does not survive in
view of the subsequent decision of the Supreme Court in the case of M/s. Shaha Ratansi Khimji (supra).
Shri Coutinho, the learned counsel for the respondent no.1 however,did not dispute that in view of Order 41 Rule 22 (1) of C.P.C., a party
succeeding before the trial court can challenge an adverse finding on one or other issues without filing a formal cross objection. However, it is
contended that the appellate court has detailed out the reasons for holding that the respondent no.1 was a tenant in para 10 of the judgment and the
said finding is based on the appreciation of the oral evidence as also the documents at Exhibit 113 and 113-A . In the submission of the learned
counsel for respondent no.1, the said finding does not call for any interference.
In so far as the substantial question of law at (c) is concerned, it is contended that this question does not arise in as much as Exhibit 114 was
produced on record without any objection by the appellants. It is pointed out that the said document was produced through DW-1 and was taken on
record without any demur. Reliance in this regard is placed on the Full Bench decision in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody
2008 (6) ALL MR 352, in order to submit that once the document has been admitted and marked as exhibit without any objection, an objection raised
at a subsequent stage cannot be allowed to be raised.
In so far as the Substantial question of law at (d) is concerned, it is submitted that the provisions of Order 6 Rule 4 of CPC are not attracted in this
case as the said provision applies to matters involving fraud, misrepresentations etc. It is submitted that in any case defendant no.1 has clearly pleaded
in para 5 that he was a tenant on payment of Rs.20/- as rent. It is pointed out that the amendment carried out in the year 1988 and paras 20 and 23
also show a clear plea of tenancy, being raised by the defendant no.1.
In so far as the substantial question of law at (e) is concerned, it is submitted that the appreciation and construction placed by the appellate court
on the documents at Exhibit 113 and 113-A, 114 and 140 cannot be said to be perverse or against the weight of evidence. It is submitted that the
finding is not based on any conjectures or surmises.
It is pointed out that Exhibit 113 which is a no objection certificate(NOC) contains a clear admission by late Tirodkar about Prema Naik, the wife
of defendant no.1 being a tenant in respect of the kiosk/gada. It is submitted that the admission is the best proof and thus the document Exhibit 113
taken together with Exhibit 140 which is a letter written by defendant no.3 is sufficient to support the finding recorded by the Courts below. It is
submitted that the concurrent finding by the Courts below in this regard is not amenable to any challenge.
It is submitted that the essential dispute is whether defendant no.1 isa trespasser and/or whether the tenancy rights in respect of the kiosk are
transferred to the suit flat/shop, no.1-B, in the newly constructed premises. It is submitted that the first appellate court has rightly come to the
conclusion that defendant no.1 is not a trespasser, but a tenant, who has been accommodated in the new building in lieu of the subsisting tenancy rights
in respect of the kiosk, which was required to be demolished, as a condition for development. It is thus submitted that the exercise undertaken by the
appellate court cannot be said to be in excess of the jurisdiction as circumcised by Order 41 Rule 31 of C.P.C..
In so far as the substantial question of law at (g) is concerned, it is submitted that the suit filed by the plaintiffs is clearly a suit for specific
performance of the agreement and the principle issue was whether the defendant no.3 had connived and colluded with the defendant no.1 in
inducting defendant no.1 in the suit flat/shop. It is thus submitted that the defendant no.3 was a necessary party as the cause of action is not separate
and defendant no.3 having been deleted, the suit ceased to be maintainable, in the absence of a necessary party. Alternately, it is submitted that
even if defendant no.3 is held not to be a necessary party, nothing would turn in as much as there is a clear finding that defendant no.1 was a tenant in
respect of the kiosk, the kiosk was required to be demolished and the defendant no.1 was inducted in the new building by defendant no.3 as the tenant
of the plaintiff and thus defendant no.1 cannot be branded as a trespasser. It is thus submitted that even if substantial question of law in so far asÂ
the issue of defendant no.3 being a necessary party, is held in favour of the appellant, the same will not have any effect on the dismissal of the suit by
the appellate court.
I have carefully considered the rival circumstances and thesubmissions made.
It is not in dispute and otherwise it has clearly come on record thatthe property bearing P.T.S no.242 of Chalta No.4, “Naicalem Bhatâ€, which
was admeasuring 2256 sqmts.   was having three separate structures/kioks/gadas, one each being in possession of the defendant no.1, Ms.
Ganga Sawant and Mr. Madhukar Chari. It is further undisputed that late Sadashiv Tirodkar intended to develop the land and had entered into an
agreement for the said purpose with defendant no.3 who was carrying on business under the name and style as 'Galaxy Enterprises' and two
agreements were executed on 18/8/1980 between Sadashiv and the third defendant. It is further a matter of record that certain disputes which had
cropped up between late Sadashiv and defendant no.3 were settled by a Deed of Amicable Settlement dated 28/2/1983. It has further come on record
in the evidence of PW.3, Mr. Surendra Gaonkar, a Junior Engineer attached to the Margao Municipal Council, that three structures/kioks/gadas were
coming in the road widening area and one of the conditions for grant of license for development of the property was that  two out of the three
structures, would be demolished before commencement of the construction and the third structure was to be demolished in parts.
Notwithstanding the extensive narration of facts, the dispute essentially lies in a short compass. The plaintiffs claim that the defendant no.1 in
connivance with defendant no.3 trespassed into the suit shop/flat on 11/11/1983 by demolishing the kiosk belonging to the plaintiffs. On the contrary, it
is contended by defendant no.1 that he was in possession of the kiosk as a tenant on an agreed rent of Rs.20/- per month. It is contended that the
kiosk was demolished at the request and instance of the plaintiffs as it was one of the conditions for the grant of the licence for development of the
land and the defendant no.1 was put in possession of the suit shop/flat in the new building in lieu of his tenancy of the kiosk.
As noticed earlier, the defendant no.3 came to be deleted during thecourse of the trial of the suit. A perusal of the judgment and order passed
by the trial court shows that consequent upon the deletion of defendant no.3, the issue nos.4 and 7 to 13 also came to be deleted. The learned trial
court answered issue nos.1, 2, 3, and 5 in the affirmative and the issue no.6 in the negative. In short, the learned trial court came to the conclusion
that the defendant no.1 had failed to prove that late Shadashiv Tirodkar agreed to give him the suit flat in exchange of the old premises, occupied by
him and also found that the plaintiffs had established that defendant nos.1 and 2 forcibly and illegally took possession of the suit flat by demolishing the
kiosk.
The first appellate Court framed the following three points : 1) Whether the plaintiffs have proved that the defendants no.1 and 2 are trespassers in
Flat 1-B? 2) Whether the plaintiffs have proved that the defendant no.1 continues to occupy flat 4-B?
(3) Whether the plaintiffs are entitled to the eviction of defendants no.1 and 2Â from the flat 1-B?
The first Appellate Court answered all of them in the negative and proceeded to allow the appeal. As noticed earlier, the dispute so far as the flat
no.4-B does not survive and we are only concerned with flat no.1-B for the present.
I would now propose to deal with the rival contentions and submissions made on each of the substantial questions of law ad seriatum,
As regards substanital question at (a) :
In the case of Vannattan Kandy Ibrarji (supra), the rented premises (a shop) were destroyed by fire and the tenant constructed a new shop without
the consent of the landlord. The landlord filed a suit for mandatory injunction for demolition of the new shop and for possession of the land. The trial
court refused to grant mandatory injunction and found that the landlord is not entitled to recover the possession of the site over which the old shop
existed. However, the trial court granted decree for mandatory injunction directing the tenant to demolish the new shop constructed by him without the
consent and permission of the landlord. Both the tenant and landlord filed separate appeals, which came to be dismissed by the first appellate Court.
The High Court, however, allowed the second appeal filed by the landlord and dismissed the appeal filed by the tenant, on a view that, on total
destruction of the premises by natural calamity, the tenancy stood extinguished and therefore, the landlord was entitled to recovery of possession of
the land. The Hon'ble Supreme Court while affirming the decision of the High Court found that the tenancy stood extinguished on destruction of the
tented premises.
In a subsequent decision, a Larger bench of the Supreme Court, inthe case of M/s Shaha Ratansi Khimji (supra) has held that in the event of
the destruction of the leased property, the tenancy cannot come to an end. It has been held that, when there is a lease of a house or a shop, it
cannot be treated as a lease of the structure alone, but also a lease of the site, underneath and once a tenancy is created in respect of the building
standing on it, it is the building and the land which are both components of the subject matter of lease and destruction of the building alone, does not
determine the tenancy, when the land on which the building was standing, continues to exist. The Supreme Court found that this interpretation is in
accord with section 108 of the Transfer of Property Act. The Supreme Court thus affirming the view taken in the case of T. Laximi Pati has held that
Vannattan Kandy Ibrarji (supra) does not lay down the correct law and it was accordingly overruled.
Shri Desai, the learned Senior Counsel for the appellant however,contended that notwithstanding the decision in the case of M/s. Shaha Ratansi
Khimji (supra), the tenancy cannot subsist in the present case, in as much as, in that decision the effect of the proviso to section 108 (B) (e) of the
Transfer of Property Act, did not fall for consideration. Precisely the contention is that when the tenant himself has voluntarily destroyed the tenanted
premises, the alleged tenancy would not subsist. In order to appreciate the contention it would be necessary to note the provisions of section 108 (B)
(e) of the Transfer of Property Act, 1882 (to the extent relevant), which read thus:
Rights and liabilities of lessor and lessee.â€"In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable
property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them
as are applicable to the property leased:â€" (B) -
(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or
rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:
Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of thisÂ
provisio n;"" Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â (Emphasis supplied)
It can thus be seen that if any material part of the tenanted property isdestroyed on account of fire, tempest or flood or violence of an army or of a
mob, or other irresistible force or any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the
purposes for which it was let, the lease shall, at the option of the lessee, be void. Proviso to section 108 (B) (e) would make it explicit that the lessee
cannot avail of the benefit of the said section, if the injury to the property is occasioned by a wrongful act or default of the lessee.Â
Now coming to the present case, it is the case made out by theplaintiffs that on 11/11/1983Â the defendant no.1 demolished the kiosk and in
connivance with the defendant no.3 trespassed into the suit shop/flat. On the contrary, the defendant no.1 claims that the suit flat/shop was demolished
at the instance of the plaintiffs as the defendant no.1 was accommodated in the suit shop in the new building. The issue, therefore essentially turns
upon the finding of fact reached in this regard. If it is found that the kiosk was not demolished by the defendant no.1 on his own accord or out of his
own volition then the proviso would not apply and the defendant no.1 would be entitled to take the benefit of the substantive part of section 108 (B) (e)
of the Transfer of Property Act. Be that as it may, in so far as the substantial question of law is concerned, no exception can be taken to the finding
recorded by the learned lower Appellate Court, that  despite destruction of the tenanted premises, the tenancy survives. Albeit this would be
subject to the condition that the case, is not the one governed by the proviso to section 108 (B) (e) of the Transfer of Property Act. I would propose to
revert back to this aspect a little later.
As regards substantial question at (b) : This pertains to the observations and the finding of the learned lower appellate court, in para 10 of the
impugned judgment. The first appellate court has noticed that the learned trial court had held that Smt. Prema A. Naik was a tenant in respect ofÂ
the kiosk. The first appellate court has then observed that the plaintiffs have not filed any cross objection and as such, the said finding of the trial court
has become final and it would not be open to the plaintiff to contend that the defendant no.1 or his wife were not their tenants. The observation and
the finding recorded by the first appellate court obviously cannot be sustained. Order 41 Rule 22 (1) of CPC would make it clear that the
respondent though he may not have appealed from any part of the decree may not only support the decree but may also challenge a finding on one
or the other issue is concerned which has gone against him. Thus the first appellate court was clearly in error in holding that the plaintiffs not having
filed any cross objections were precluded from challenging the finding of the trial court about Prema A. Naik being a tenant of the kiosk. However, in
my considered view the answer to the aforesaid substantial question of law  in favour of the appellant by itself will not affect the ultimate outcome
of this appeal, which would essentially depend on the question whether the finding of the trial court about the tenancy in respect of the kiosk/gaga can
be otherwise sustained. This will entail consideration of other substantial questions of law. If on facts it is found that the finding of the learned trial
court is otherwise sustainable, the answer to this issue, cannot come to the aid of the appellant.
As to substantial question of law at (c):
The substantial question of law at (c) is pertaining to the Agreement Exhibit 114. The contention is that it could not have been considered as legal
evidence inasmuch as it was not proved in terms of Sections 67 and 73 of the Indian Evidence Act. Exhibit 114 is a document purportedly written by
late Shri Sadashiv Tirodkar. The executant is shown to be Atchut Naik.
Learned trial court had refused to place reliance on the writing Exhibit 114 for reasons, as set out in para 5 of the judgment. The trial court has
found that according to the plaintiffs the defendant no.1 forcibly occupied the flat on 11.11.1984 and there is no specific denial of this by the deft
no1.No where in his evidence the defendant no.1 has stated that the flat was promised to be given to him by late Sadashiv to him..The learned trial
court has then went upon examining the evidence of Smita Tirodkar PW.1 in order to hold that she had not admitted the writing Exhibit 114 to be in
the hand writing of her father. The learned trial court has then observed that, as it was the defendant no.1, who was relying on the said writing, it is
for him to prove the same. It was found that the writing was not bearing any signature and defendant no.1 himself was not in a position to identify the
handwriting on the said document to be that of late Sadashiv. The learned trial court has then observed that although DW3 Kawadi ( original
defendant no.3, since deleted) had positively stated that the document was in the hand writing of late Sadashiv, in view of the evidence of PW.1 and
DW.1, it cannot be said that the document was in the hand writing of late Sadashiv. The learned trial court has then went upon examining the area and
the boundaries as mentioned in the document Exhibit 114 and the area and the boundaries of the suit flat, to find that there is a discrepancy in the
same. For these reasons the trial court has refused to place reliance on the document Exhibit 114.
The learned first appellate court on the contrary has found that PW1, Smita had stated that the said document was not in the handwriting of her
father late Sadashive but had admitted that her father used to write in Marathi. Subsequently she corrected herself saying that she cannot say whether
the said writing is in the handwriting of her father as she will not be in a position to identify the Marathi writing of her father. The first appellate court
found that PW.1 Smita was evasive in her answers. It was found that it is not possible that a educated daughter would not be in a position to identify
the handwriting of her father. In so far as the evidence of DW1 is concerned the First Appellate court found that he was examined after about 16
years of the alleged execution of the document prior to 1.1.1982 and D.W 1 was 62 years old and he could not see properly on account of defect
in eyesight. The First appellate court has then adverted to the evidence of DW3 which according to the First appellate court fully corroborates the
testimony of DW1 to the effect that the document was written by late Tirodkar. It appears that the learned First appellate court has considered this
document along with the oral and other documentary evidence in the form of Exhibit 113, 113 A and Exhibit 140 ( which was proved before the
appellate court by reexamining D.W 3) in order to conclude that late Tirodkar had promised to accommodate defendant no.1 in the newly
constructed building and that was the reason why Defendant no.1 had cooperated with DW3 and demolished his tenanted structure ( i.e the Gada) in
which he was conducting his laundry business.
The substantial question of law in relation to Exhibit 114 has to be considered in the context of sections 67 and section 73 of the Evidence Act
which read thus :
Proof of signature and handwriting of person alleged to have signed or written document produce- If a document is alleged to be signed or to have
been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's
handwriting must be proved to be in his handwriting.
73. Comparison of signature, writing or seal with others admitted or proved- In order to ascertain whether a signature, writing or seal is that of the
person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have
been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been
produced or proved for any other purpose.
        The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare
the words or figures so written with any words or figures alleged to have been written by such person.â€
It can thus be seen that, all that section 67 provides is a basic rule of evidence, namely where a document is alleged to be in the hand writing
or signed by a person, such handwriting or the signature as the case may be should be proved to be in the handwriting of the said person. The section
consists of of two parts, namely the proof of handwriting or the signature as the case maybe. A bare perusal of the section would indicate that it does
not prescribe any specific mode of proof. The requirements would be, first the production of the original or its secondary evidence if properly
produced in accordance with law. If the document is signed or handwritten wholly or in part, all that section 67 would require is that such signature
or handwriting is proved to be that of the person signing or writing the same. This would properly bring on record the contents of the document. In so
far as truth of the contents are concerned it is generally done by examining the author which was not possible as Shri Tirodkar (in whose handwriting
the document was purportedly made)Â was dead. The question whether the document is in the handwriting of a particular person would be one of
fact, obtaining in each case. As noticed earlier the section does not prescribe any particular mode or manner of such proof.
Section 73 of the Evidence Act, can be seen, as an enabling provision, where the court can compare the disputed hand writing or signature, with
any admitted or proved handwriting or signature if available on record, in order to ascertain whether the writing or signature is that of the person by
whom it purports to have been made or written. This is not the only mode available for proving the fact of a particular document being either signed or
being in the handwriting of a person. Even other wise section 73 of the Evidence Act could not have been called into aid in this case in as much as
there was no admitted or proved handwriting of late Tirodkar available on record for comparison.
A perusal of the reasoning articulated by the first appellate court would indicate that after considering the evidence of PW1, DW 1 and DW3 and
other documents on record that the court had placed reliance on the said document Exhibit 114. It is trite that oral evidence in this regard has to
be appreciated on the basis of broad human probabilities. The learned first appellate court has found and to my mind rightly so that PW.1 was
attempting to avoid a clear answer as to whether the document was in the hand writing of her late father. We then have the evidence of DW.3 who in
categorical terms has stated about the document being in the handwriting of late Tirodkar. It may not be out of place to mention that after filing of the
suit the plaintiffs have settled their dispute with DW3 seeking his deletion as deft no3 and the suit was eventually dismissed against DW3 In the
face of such a settlement DW3Â normally would not have ventured to depose in favour of defendant no.1 and against the plaintiffs. But if he has still
done so his evidence would carry greater probative value. There was thus nothing wrong for the first appellate court in placing reliance on the
evidence of DW3 in this regard. In the result the contentions based on section 67 and section 73 of the Evidence Act cannot be accepted.
As to substantial question of law  at (d) :
The question is based on Order VI Rule 4 of C.P.C.. The contention in this regard, as noticed earlier, on behalf of the appellants is that there are no
clear pleadings as to the tenancy in respect of the kiosk, made by the defendant no.1 and which is in breach of Order VI Rule 4 of C.P.C.
In my considered view, the learned counsel for the defendant no.1 is right in submitting that the said provision would not apply in the facts, as
obtaining in the present case. Rule 4 of Order VI of C.P.C in terms provides, that in all cases, in which, a party relies on any misrepresentation, fraud,
breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in forms
aforesaid, such particulars with dates and items, if necessary, shall be stated in the pleadings. It can thus clearly be seen that Order VI Rule 4 of
C.P.C. comprises of two parts. The first part is with reference to a case made out by a party as to misrepresentation, fraud, breach of trust, willful
default or undue influence is concerned, which does not apply in the present case. The second part of Order VI Rule 4 of C.P.C. pertains to “all
other cases in which particulars may be necessary†beyond such are  exemplified in the form as set out in Appendix “A†wherever
applicable. Appendix “A†consists of four parts. The part no.4 pertains to written statements. It first sets out the general defences followed by
in all 16 forms, none of which pertain to a suit of the present nature initiated by the plaintiffs. In my considered view the provisions of Order VI Rule 4
of C.P.C, per force may not be attracted in the present case. However, I would hasten to add that this does not mean that the defence can be
accepted, without there being adequate particulars and pleadings in the written statement. It is trite that no amount of evidence is sufficient unless it is
supported by adequate pleadings. The pleadings are the foundation of any case, which can then be proved on the basis of the evidence led. Thus while
holding that the provisions of Order VI Rule 4 of C.P.C strictly are not attracted in this case, nonetheless it would be necessary to see whether there
are adequate pleadings/particulars in the written statement on the point of tenancy. Before doing that, it may not be out of place to mention that both
the Courts have concurrently held that defendant no.1 was a tenant in respect of a kiosk located in the suit property. The contents of the written
statement as originally filed along with amendment carried out in the year 1988 and in particular paras 5, 20 and 23 of the written statement would
clearly show that there are pleadings made that the defendant no.1 was a tenant on payment of Rs.20/- per month as rent. It is not disputed on behalf
of the the plaintiff that the defendant no.1 was in possession of one gada/kiosk in the suit property. The plaintiffs have not come out with any specific
case as to in what capacity or status the defendant no.1 was occupying the said gada/kiosk. In a civil dispute of the present nature, the parties are
expected to clearly come out with their own case. The plaintiffs could have come out with a specific case as to the capacity in which the defendant
no.1 was put in possession of the kiosk/gada.  On the contrary, there are pleadings in the written statement, as amended, that defendant no.1
was a tenant on payment of Rs.20/- per month as rent. Thus, this cannot be said to be a case where there is lack of pleadings on the part of defendant
no.1. Thus, the substantial question of law at (d) in my considered view has to be answered in the negative and against the appellant.
As to Substantial question of law at (e):
It is now well settled that a finding of fact recorded by the Courts below, either concurrently or otherwise, can partake of the nature of a substantial
question of law, only when the finding can be said to be perverse. In other words, the finding has to be such as no reasonable or prudent person would
reach, on the basis of the evidence led and/or the conclusion reached should be so absurd and against the weight of the evidence that no prudent
person could have ever reached the said conclusion in the circumstances and on the basis of evidence led.
Per contra, if the finding and the view taken is a plausible view, a finding of facts so reached cannot be interfered with in a Second Appeal. The
contention on behalf of the appellants is that the finding recorded by the first appellate court and the reasons given in support there of are perverse and
by way of surmises and conjectures which would vitiate the findings. I am unable to accept the contention as raised. As noticed earlier the trial court
as well as the first appellate court have concurrently come to the conclusion that the the deft no1 has established the case of tenancy over the kiosk/
Gada. The trial court however has refused to accept the case of the defendant no.1 that in lieu thereof the defendant no.1 was accommodated in the
suit flat/shop in the new building. On the contrary the first appellate court has held that late Tirodkar had promised to accommodate the defendant no.1
in the newly constructed building and that is why the defendant no.1 had cooperated in demolishing the kiosk/ Gada. I have carefully gone through the
reasoning articulated by the first appellate court and I find that the first appellate court has evaluated and appreciated the oral and documentary
evidence on the touchstone of broad human probabilities and conduct. As noticed earlier both the courts have concurrently held that defendantÂ
no.1 has established the case of tenancy in respect of the kiok /gada. It therefore appears to be logical to accept that no prudent person would
demolish the same at his own peril ( particularly when the defendant was said to be carrying on his laundry business in it) unless he is assured of an
alternate accommodation in the new building. It has sufficiently come on record that the three structures in the suit property were coming in the
way of its development and were required to be removed. One of the structures was stated to be removed in stages. It has also come on record that
the deft no1 was temporary allowed to store scrap material in flat no. 4 -A ( which has subsequently been vacated) The first appellate court after
considering all these circumstances has held that there was a promise to accommodate the defendant in the newly constructed building. Apart from
the oral evidence the first appellate court has also considered the documents Exhibit 113, a no objection certificate for displaying a board of the shop,
Exhibit 113 A a receipt towards payment of municipal taxes and Exhibit 140, a communication from Mr. Kavadi ( which was marked 'X' before the
trial court and was exhibited before the first appellate court by reexamining Mr. Kavadi) in order to reach the findings as recorded . After having
carefully gone through the reasoning and the findings recorded by the first appellate court I do not find that they can be branded as perverse or so
absurd that no prudent person would ever reach such a finding on the basis of the evidence led. The point is accordingly answered ion the negative.
Now coming back to the ground based on Section 108-B (e) of the Transfer of Property Act (question of law at (a)), once it is held that the
kiosk/gada was demolished as a condition for development of the land in respect of which an alternate accommodation was provided to Defendant
no.1, it cannot be said that the case would be covered by the proviso to Section 108-B (e) of the Transfer of Property Act. In such circumstances the
point at (a) is answered in the affirmative.
As to the question of law at  (f) :
It is submitted on behalf of the appellants that the first appellate Court has exceeded jurisdiction vested in it under Order 41 Rule 31 C.P.C. in
reversing the judgment of the trial court. Shri Desai, the learned Senior Counsel for the appellants submitted that the appellate court has acted
“as if it was a trial court†which is not permissible. I am afraid, the contention cannot be accepted. Order 41 Rule 31 C.P.C. is entitled
“contents, date and signature of judgmentâ€. It inter alia provides that the judgment of the appellate court shall be in writing and shall state- (a)
the points for determination; (b) the decision thereon; (c) the reasons for the decision' and (d) whether the decree appealed from is reversed or varied
and the relief to which the appellant is entitled. It is difficult to accept as to how the judgment of the first appellate court in the present case, can be
said to be in excess of, or in breach of the provisions of Order 41 Rule 31 C.P.C. In fact,  Order 41 Rule 31 C.P.C. does not provide for
the scope and ambit of the powers of the appellate court. It only sets out the requirements and the contents of the judgment of the appellate court.
It is now well settled that, an appeal which is a statutory right, is a continuation of the suit and the appellate court has all the powers of the trial court.
It can appreciate and re-appreciate the evidence and come to its own conclusion on the issues involved and while doing so, may either affirm, reverse
or modify the findings as well as the decree passed by the trial court. Looking from this angle, there are no fetters placed on the powers of the
appellate court, unlike the Court, carrying a revisional jurisdiction, where the scope and ambit may be limited. It is thus difficult to accept the
contention on behalf of the appellants that the impugned judgment of the first appellate court is unsustainable or that the appellate court has
“practically acted as the trial courtâ€. The point is accordingly answered in the negative.
As to the question of law at (Â Â g):
This takes me to the last question as to whether the defendant no.3 could be said to be a necessary party to the suit, in the absence of whom the suit
could not have been decreed. The trial court has observed that the suit was not only filed, on account of violation of the terms of the amicable
settlement, but also on account of trespass by the defendant no.1 and defendant no.2 in the suit flat. The learned trial court has further observed that
as the defendant no.1 still continues to be in possession of the suit flat, the cause of action survives in favour of the plaintiffs, even after dismissal of
the suit against defendant no.3. In appeal, there was a ground raised by the defendant no.1 that the defendant no.3 being a necessary party, his
deletion was fatal to the plaintiff's case. The first appellate court has found that the suit was essentially filed claiming that there was breach of the
terms of the amicable settlement by defendant no.3 under which the defendant no.3 was supposed to give possession of flat no.1 (flat nos.1-A and
1-B)Â to the plaintiffs in which the defendant no.3 failed therein. The first appellate court has found that the defendant no.1 was not a party to the
amicable settlement and the entire case made out by the plaintiff was that the defendant nos.1 and 2 had trespassed into the suit flat on 11/11/1984, in
collusion with the defendant no.3. It was further found that the plaint was not amended when the defendant no.3 came to be deleted. The first
appellate court has further found that the possession of flat no.1-B was admittedly with the defendant no,.3 and as admitted by P.W.1, the defendant
no.1 was inducted in the suit flat by the defendant no.3 when under the Deed of Settlement, the defendant no.3 was required to give possession of
the said flat to the plaintiffs. In that view of the matter, the first appellate court has found that the plaintiffs cannot recover possession of flat no.1-B
without the defendant no.3 being a party to the suit. The first appellate court has further noted that PW.1 in his cross examination has admitted that
the suit was filed because defendant no.3 committed violation of the amicable settlement dated 28/2/21983. It has been found that on one hand
PW.1 claimed that by virtue of the subsequent settlement (upon which the defendant no.3 came to be deleted from the suit) the transaction between
the plaintiffs and the defendant no.3 are completed, however, at the same time, she refuted the suggestion that the terms and conditions of the
amicable settlement reached with the defendant no.3 are fulfilled. In the opinion of the learned first appellate court the above evidence of PW.1
also establishes that Shri Kavadi, the defendant no.3 was a necessary party to the suit and the suit was rendered bad and not maintainable on his
deletion.
It was submitted by Shri Desai, the learned Senior Counsel for the appellants that in any event the defendant no.3, Mr. Kavadi was examined as
DW.3 and his version has come on record and no relief being claimed as against defendant no.3 (when his deletion was sought from the suit), he
cannot be said to be a necessary party.
On the contrary it is submitted by Shri Coutinho, the learned counsel for the defendant no.1 that the whole basis of the claim of the plaintiffs was
that the possession of the suit shop/flat was obtained forcibly with the connivance of defendant no.3. It is submitted that the defendant no.3 being
deleted from the suit, the suit could not have been decreed.
A necessary party is one in whose absence, no effective decree can bepassed by the Court or where there is right in the plaintiff to some relief
against such a party. In the present case, the suit was filed for the following substantive reliefs:
(a) That this Hon'ble Court be pleased by judgment anddecree to direct and order the defendant no.1 and 2 to quit and vacate the said flat 1-B and
hand over vacant possession of the same to the plaintiffs.
(b) That this Hon'ble Court be pleased to direct and orderthe defendant no.1 to remove the scrap material stored in Flat no.4-B.
(c) That this Hon'ble Court be pleased to direct and orderthe defendant no.3, to make payments to the plaintiffs as per clause 15 of the Deed of
Amicable Settlement with effect from the date of default;
(d) That this Hon'ble Court be pleased to restrain bypermanent injunction the defendants, their heirs, agents, assigns, etc. from re-erecting the gada in
the said property;
(e) That this Hon'ble Court be pleased to restrain thedefendants, heirs, agents, assigns, etc. by permanent injunction from carrying on any business
whatsoever in Flat 1-B or Flat 4-B.
It can thus be seen that the relief at prayer clause (a) and (b) were exclusively against the defendants no.1 and 2, while prayer clause (c) was
exclusively against the defendant no.3 which would be in the nature of specific performance of clause 15 of the Deed of Amicable Settlement. Prayer
clause (d) and (e) pertain to all the defendants. The learned trial court has held that the cause of action and the relief was separable, with which the
first appellate court has disagreed. Even assuming that the reliefs claimed were separable, (inasmuch as out of the substantive reliefs, only prayer
clause (c) pertained exclusively to defendant no.3), the fact remains that the entire basis of the claim of the plaintiffs, was that defendant nos.1 and 2
in connivance with defendant no.3 had obtained forcible possession of the suit flat/shop on 11/11/1984. Thus the Court was required to record a
finding that the defendant no.3 in breach of the terms of the amicable settlement (under which he was supposed to hand over the possession of flat 1
to late Tirodkar) had allowed the defendant nos.1 and 2 to trespass into the suit/flat shop. Such a finding could not have been recorded behind the back
of defendant no.3, once he was deleted. Looking from this angle, in my considered view, the defendant no.3 would be a necessary party to the suit
and for this reason also, the suit could not have been decreed. However, even assuming for a moment that the defendant no.3 cannot be said to be
a necessary party, on facts I have already held that the learned District Judge was right in coming to the conclusion that there was a promise to
accommodate defendant no.1 in the new building.
A brief reference may be made at this stage to the submissions based on the provisions of the Portuguese Civil Code (Code, for short). It is
submitted that late Sadashiv Tirodkar was married to plaintiff no.1 under regime of communion of assets in terms of Article 1108 of the Code and thus
late Sadashiv could not have given consent, unilaterally on his own, without intervention of his wife. Reliance has been placed on Article 1117 of the
Code in order to submit that the Code confers ownership and possession of the common assets on both the spouses and the said Article only
permits the husband to manage the couple's property, but not to alienate it. It is next contended that Article 1119 of the Code, specifically prohibits sale
or encumbrance of the common property belonging to both the spouses without common consent or agreement of both the spouses. In short, it is
submitted that it was not open to late Sadashiv to have unilaterally given consent to defendant no.1 and even if such consent is given, the same is not
binding on Kamlabai, plaintiff no.1 in view of the bar as contained in Article 1119 of the Code.
I have considered the submissions made. At the outset it is necessary to mention that none of these contentions were raised before any of the
Courts below i.e. neither the trial court nor the first appellate Court and for this reason alone, they cannot be allowed to be raised for the first time in a
second appeal. Particularly in view of the fact that the necessary foundational facts are neither pleaded nor proved before the trial court. The entire
argument in this regard is based on the contention that Kamlabai and late Sadashiv were married under the regime of communion of assets. No such
pleading can be found in the plaint. There is also no evidence led to show that late Sadashiv and Kamlabai, plaintiff no.1 were married under the
regime of communion of assets. In the absence of such foundational facts being either pleaded or proved, it is not possible to accept the contentions
based on the aforesaid provisions of the Code.
The learned Senior Counsel for the appellants had made certain submissions based on Articles 474 and 2169 of the Code to show that there
are five distinct rights available to the plaintiff as enumerated in the said Article. Further contention is raised about the concept of possession as the
mode of retention and enjoyment of the property, which is provided under Article 474 of the Code. Reliance is also placed on Articles 483 of the
Code, in order to submit that on the death of the possessor the possession passes by operation of law to his heirs or his successor from the time of his
death, with the same effect and therefore, upon death of Gurudas in May 1969, the possession  and ownership of the property passed on to late
Sadashiv and Kamlabai in terms of Article 483 and 1969 of the Code. Several other Articles have also referred including 484, 485, 486, 487, 488,
489 and 490. None of these Articles were even pressed into service nor any contentions were raised based on such Articles before any of the Courts
below. The substantial questions of law framed on 11/9/2003 when the Second Appeal was admitted and those framed on 14/2/2018 also do to show
that any question of law is framed based on any of these Articles of the Code. In that view of the matter, in my considered view, the same cannot be
allowed to be raised in the present second appeal.
A brief reference may be made at this stage to the judgments cited:
In the case of Santosh Hazri (surpa), the Hon'ble Supreme Court has held that the High Court is not bound to confine itself to deal with the questions
initially framed by it and may hear the appeal, on any other question, so long as it is satisfied that the case involves the question and records its
reasons for such satisfaction.
 As indicated earlier, the present second appeal was initially admitted on the substantial questions of law at serial no.(a), (b), (c) and (d) and
during the course of hearing, three additional substantial questions of law came to be framed on 14/2/2018 and the parties were heard on all such
substantial questions of law.
It has been further held that the substantial questions of law “involved in the case†must have foundation in the pleadings and should emerge
from substantive finding of fact reached by the Courts below. In so far as the scope and ambit of the powers of the first appellate Court are
concerned, it has been held that where there is conflicting oral evidence and the trial court has decided the issue concerned, on basis of credibility of
witnesses, the appellate Court ought not to interfere with the finding of the trial judge on a question of fact, unless the later has overlooked, some
peculiar features connected with the evidence of the witnesses, so as to invite displacement by the appellate court. In my considered view the learned
first appellate Court has noticed peculiar features connected with the evidence of PW.1, DW.1 and DW.3, in the context of the documentary
evidence and then recorded the finding. Obviously the question would depend upon facts and circumstances of each case.
I have set out the reasoning articulated by the learned District Judgeand I find that the evidence is appreciated on probabilities of human conduct
and the first appellate Court has set out reasons for reversing the findings of fact recorded by the trial court.
The decision of this Court in the case of Shivram Ladu Nitardekar (supra) is based on the decision of the Supreme Court in the case of
Vannattankandy Ibrayi (supra), which has been overruled by the Supreme Court in the subsequent decision in the case of M/s. Shaha Ratansi
Khimji & Sons (supra) and thus the reliance placed on behalf of the appellant on the decision in the case of Shivram Ladu Nitardekar to my mind is
misplaced.
The case of Abdul Raheem (supra) in my considered view turned on its own facts. It cannot be disputed that a finding recorded, ignoring a
vital document, may also lead to a substantial question of law, in as much as the finding in that case would be perverse. However, whether such a
finding is perverse or not will depend upon the facts and circumstances of each case.
In the case of Mohd. Laiquiddin and anr. (supra) one of the questions which fell for consideration was whether the High Court was justified in
permitting the respondent, in raising a question, for the first time in a second appeal, which was not raised before the trial court or the first appellate
Court. The Hon'ble Supreme Court held thus in para 17 of the judgment:
“As to the issue raised by the Appellants that the High Court was not justified in permitting the Respondents to raise a new plea for the first time in
the second appeal, we may at the outset note that we do not find any substance in this contention raised by the learned counsel for the appellants.
They contended that the High Court committed an error of law in considering a new ground of challenge, without any plea or factual background
neither before the Trial Court nor the first appellate court. The new plea which was allegedly raised before the High Court for the first time was that
all assets of the firm including the land and building shall be dealt with under Section 48 of the Act and the proceeds shall be disbursed to the two
partners in accordance with the respective shares as per the partnership deed. The High Court as can be seen from the record had dismissed this
plea. The Respondents have not appealed against the said finding of the High Court. That apart, when a question of law is raised on the basis of the
pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be
permitted for the first time before the High Court. Therefore, we do not see how the Appellants are aggrieved by this finding of the High Court even
assuming the High Court had formulated a new question of law, which was not raised before the Courts below. ''
It can thus be seen that, a question of law, can in a given case, be permitted to be raised for the first time, provided there are foundational pleadings
and evidence on record, which are lacking in the present case, as noticed earlier.
This takes me to the submission based on the decision of this Court in Second Appeal no. 136/2011. (Smt. Ganga Sawant Vs. Smt. Kamlabai
Tirodkar decided on 1/12/2016). Smt. Ganga Sawant was an occupant of one of the three kiosks/gadas in the suit property. A similar suit filed by
the plaintiffs, against Ganga Sawant and others for vacant possession of Flat 1A, was partly decreed by the trial court and that was confirmed by
the first appellate Court, against which, Smt. Ganga Sawant filed the aforesaid second appeal. This Court by an order dated 1/12/2016 dismissed the
second appeal at the admission stage. A perusal of the order of this Court shows that on behalf of the appellants, it was urged that the Courts below
had overlooked two crucial aspects of the matter. The first with reference to the pleadings of the appellants and the other about appreciation of the
evidence. This Court noted that it was the respondents (plaintiffs in that case) own case that the original defendant no.5 had in connivance and
collusion with the appellants, put the appellants in possession of flat no.1A. It was further noted that the appellants in their deposition had also
claimed that they were put in possession by the original defendant no.5. This Court found that the possession of the premises by the appellants
was not legal nor they established their right to occupy the premises. In so far as the letter written by, one of the respondents, that she had no
objection to the appellants fixing shutters to the premises, is concerned, it was found that the letter does not describe the premises to which the
shutters were to be fixed. This Court on facts found that none of the two circumstances pointed out by the appellant could help the appellants in
establishing that they were legally put in possession of the premises. It was thus found that there was no substantial question of law arising for
consideration and the second appeal came to be dismissed.
 In the present case, there were four substantial questions of law framed at the time when the second appeal was admitted and three additional
questions of law were framed during the course of hearing, including whether the defendant no.3 could be said to be a necessary party to the suit. It is
also not clear from the perusal of the order passed by this Court, in Second appeal no.136/2011 as to whether there was any such question involved
about the suit being bad for non joinder of the present defendant no.3. Thus in my considered view the decision in the said second appeal turned on
is own facts, pleadings and evidence cannot come to the aid of the appellants.
In the result the Second Appeal is dismissed with no order as to costs.
Decree be drawn accordingly