PUNIYABAI Vs. BHADDU

JUDGEMENT

(1.) THIS is an appeal by the original plaintiff directed against the judgment and decree dated 10/12/1991 passed by the Additional District Judge, Nagpur in Regular Civil Appeal No.72/1984 thereby allowing the appeal by reversing the judgment and decree dated 4/1/1984 passed by the Joint Civil Judge Junior Division, Nagpur in Regular Civil suit No.1571/1980. Factual matrix is thus:

(2.) THE defendant filed written statement and denied the title of the plaintiff. His case was that the suit house was originally owned by one Bodhi who had 2 sons namely Risal and Lukka and one sister Chironji. He is son of Risal. Risal and Lukka constituted joint family and was in possession of the suit house. Defendant was born in the suit house. Lukka predeceased Risal. Risal died when defendant was 2 months old. Plaintiff is son of daughter of Lukka and uncle of the defendant. After death of Risal the property devolved upon his mother Gogiyabai and Lacchibai the mother of the plaintiff. Gogiyabai died in the year 1955 and Lacchibai died after the plaintiff was married. After marriage plaintiff went to reside with her husband at Hansapuri (different locality in Nagpur). He being a sole survivor of his grandfather Bodhi, he has a right of ownership over the suit house. Inter alia it is pleaded that without keeping the defendant informed the plaintiff carried out mutations in the corporation record. In alternative, the plea of adverse possession is also raised.

(3.) APPEAL was carried to the District Judge, Nagpur. By the time the appeal was heard i.e. on 10th of December 1991 there was an amendment to C.P. and Berar Letting of Premises and Rent Control (Second Amendment) Order, 1989 (for short "Order"). On that basis, it was canvassed before the Appellate Court that even a licensee cannot be evicted without permission of the Rent Controller. Since the learned Trial Court has returned the finding that the defendant was a licensee in the suit premises, it was contended that defendant is protected by the said provision. The learned Appellate Court observed that the finding of the Trial Court that plaintiff is the owner of the suit house is not disputed and formulated only one question about the nature of occupation of the suit house by the defendant vis -a -vis protection available to him under the provisions of said Order. The Appellate Court held in favour of the defendant and allowed the appeal by setting aside the judgment and decree of the Trial Court. Hence this second appeal by the original plaintiff.