PRATAPRAI N KOTHARI Vs. JOHN BRAGANZA

JUDGEMENT

(1.) Though this litigation had a chequered career, the scope of the dispute between the parties is very limited. The respondent who was the plaintiff in Short-Cause Suit No. 3120/81 on the file of the City Civil Court at Bombay prayed for a permanent injunction restraining the appellant herein from interfering with or disturbing his possession and occupation of the suit property situated in Malad (East) Bombay. A perusal of the plaint shows that the entire case of the respondent rested only on his exclusive possession for several decades and not on any claim of title. Though the respondent was not quite clear as to the origin of his possession, his continuous and exclusive possession from May, 1964 under a registered lease deed was the basis of his claim. In the written statement filed by the appellant, while denying claim of the respondent, there was no specific plea that the appellant had title to the property and that the suit was not maintainable at the instance of the respondent. No doubt, there was an incidental reference to the appellant having become the owner of the property by virtue of a dissolution of a partnership which the appellant had entered with the alleged previous owner of the property.

(2.) The trial Court framed as many as four issues. There was no issue regarding title. The crucial issue related to the plaintiff's possession of the suit property. The suit was decreed on 26-4-82 by the Additional Principal Judge. The appellant filed First Appeal No. 479 of 1982. The plaintiff was permitted to amend the plaint and with the consent of the parties the First Appellate Court set aside the judgment of the trial Court and remanded the matter for fresh disposal. The scope of the remand was however limited by the Appellate Judge who permitted the appellant herein to file additional written statement as against the amended plaint. The Appellate Judge had also recorded the agreement of the parties to the appointment of an architect as Commissioner in order to draw a sketch map showing the site in question together with the structures thereon as claimed by the plaintiff on the property in suit and the location of the structures. The Court directed that no additional evidence should be allowed accepting (sic) the evidence which may become consequential to the report of the Commissioner who may be examined as Court witness if necessary.

(3.) Thus the scope of the remand having been expressly restricted, the parties did not raise any question of title. The report filed by the architect-Commissioner was not seriously objected to by either party and after considering the entire evidence, the trial Court passed a decree on 10-5-83 with regard to some portion of the suit property in favour of the plaintiff and dismissed the suit with regard to the rest. In Paragraph 90 of the judgment the trial Court stated thus: