PRABHAKAR SAMBHAJI DHOLE Vs. JAITUMBI NADAF

JUDGEMENT

(1.) HEARD Mr. G. Shirodkar, learned counsel appearing for the appellants.

(2.) THE above appeal has been admitted on the following substantial questions of law by order dated 07.01.2010.

(3.) MR . Shirodkar, learned counsel appearing for the appellants has pointed out that the appellant no. 1 is the defendant no. 3 in the suit whereas the appellant no. 2 is the defendant no. 4 in the suit and according to him both the appellants were in possession of the suit property and as such the learned Judge while passing the impugned judgment has indirectly dispossessed the appellants of the tenements which have been rented to the appellants by the original defendant nos. 1 and 2 who are the respondent nos. 2 and 3 herein. The learned counsel further pointed out that the tenement of the appellant no. 1 is located in the Chalta No. 263 of P.T. Sheet No. 152 of City of Vasco -da -Gama, which he is occupying. The learned counsel further pointed out that the learned Judge while passing the impugned judgment has directed that the access of six metres is to be provided for the benefits of the respondent no. 1 without stating as to whether such access is available at the site. The learned counsel further pointed out that as no such area is available at the site, the question of directing that a six metres wide access is to be reserved to the respondent no. 1 does not arise at all. The learned counsel further pointed out that by such machinations the respondent no. 1 is trying to evict the appellant no. 1 from the tenement occupied by him. The learned counsel as such submits that the second substantial question of law framed by this Court is to be answered in favour of the appellants. Mr. Shirodkar, learned counsel further pointed out that as far as the appellant no. 2 is concerned, the said appellant was originally occupying an area of 106 square metres as a tenant and though he has purchased an area of approximately 84 square metres, he continued to be a tenant of the excess area. The learned counsel further pointed out that while passing the impugned judgment, the learned Judge has directed the demolition of such extension without considering that by such exercise the appellant no. 2 would be deprived of the tenancy right in respect of such tenement. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has not given any categorical findings as to whether there is a six metres wide access existing at the site. The learned counsel as such submits that the learned Appellate Court was not justified to grant prayer (b) of the plaint. The learned counsel further submitted that the learned Appellate Court has passed the impugned judgment by making a new case for the respondent no. 1 which is not at all justified in the facts and circumstances of the case.