IBRAHIM AGA Vs. PRAKASH JANARDAN NAIK KUMBHAR JUVENKAR

JUDGEMENT

(1.) HEARD Mr. N. Sardessai, learned counsel appearing for the appellants and Mr. S.D. Lotlikar, learned Senior Counsel appearing for the respondent. The above appeal came to be admitted by order dated 02.03.2006 on the following substantial questions of law.

(2.) WHETHER the Courts below were justified in permitting the defendant to lead evidence and further considered the same for the purpose of non -suiting the plaintiffs on the ground that the Civil Court lacks jurisdiction to try the suit when the evidence that was led was on a point, which was not pleaded in the written statement or was justified in permitting the defendant to lead the evidence as rebuttal to the evidence placed on record by the plaintiffs without necessary details being included in the pleadings in the plaint -

(3.) I have carefully considered the submissions of the learned counsel and I have also gone through the records. On perusal of the judgment of the learned Lower Appellate Court though the learned Judge has taken note of the various aspects of the matter in connection with the evidence adduced by the respective parties, the conclusion drawn by the learned Judge that the building was completed in August, 1981 is solely on the basis of the occupancy certificate produced by the respondent at Exhibit D.W. 1/U Colly. The pleadings of the respondent further discloses that the existence of such occupancy certificate was not pleaded in the written statement. Apart from that, the said document was not relied upon by the respondent in the list of the documents filed by the respondent, Though it was sought to be contended by Mr. S.D. Lotlikar, learned Senior Counsel appearing for the respondent that the genuineness of the said document cannot be gone into by this Court in the present Second Appeal, I find that as the Courts below have non -suited the appellants merely on the ground of the occupancy certificate, it would be appropriate to examine whether such occupancy certificate itself would be a conclusive piece of evidence to come to the conclusion that the building was completed in August, 1981 as contended by the respondent herein. On perusal of the judgment of the learned Lower Appellate Court especially at para 41 thereof, I find that the learned Lower Appellate Court has drawn such conclusion merely on the basis of such occupancy certificate. The fact as to whether an occupancy certificate is a conclusive proof of completion of the building came to be examined by this Court in the judgment reported in, 1993(1) Mah LR 493 in the case of Shantaram Visso Vengurlekar v. Sertorio Grlsologo Lobo and others. This Court has observed at para 15 -A thus: