ANIL ANANTRAO NAIK Vs. INDUMATI ANANTRAO NAIK

JUDGEMENT

(1.) These Appeals are filed by the Appellants challenging the common Judgment and Order dtd. 3/9/2021 passed by District Judge, Pune in Regular Civil Appeal No. 669 of 2008 and Regular Civil Appeal No. 366 of 2017. Subject matter of challenge in Regular Civil Appeal No. 669 of 2008 was Decree dtd. 17/7/2008 passed by the Civil Judge Senior Division, Pune rejecting the counterclaim filed by the Appellants seeking a declaration that the Plaintiffs do not have right to claim possession of the suit properties from the Defendants therein, as Plaintiff is merely a Benamidar and trustee of the suit properties. After rejecting the counterclaim filed by the Defendants/Appellants, the Court of Civil Judge, Senior Division returned the Plaint for presentation to the Small Causes Court, Pune under Order 7 Rule 10 of the Civil Procedure Code, 1908 (Code) by holding that it did not have jurisdiction to decide Plaintiff's prayer for recovery of the possession from gratuitous licensees. Regular Civil Appeal No. 669 of 2008 was thus instituted by the Appellants to the extent of rejection of their counterclaim. Regular Civil Appeal No. 366 of 2017 was filed by the Appellants challenging the decree dtd. 24/4/2017 passed by the Small Causes Court, Pune decreeing the Plaintiff's suit and directing the Defendants/Appellants to hand over the possession of the suit property to the Plaintiff. Since both the Appeals arise of the same proceedings between the parties, the learned counsel appearing for rival parties have requested for hearing of both the appeals together.

(2.) Facts of the case as pleaded in the Plaint, are that the Plaintiff"Indumati Anantrao Naik purchased Plot No. 99, Survey No. 585 situated at Gultekdi, Pune by registered Sale Deed dtd. 3/6/1975. That she applied for the development permission to Pune Municipal Corporation for construction of building on the plot and that Pune Municipal Corporation issued Commencement Certificate dtd. 24/4/1986 in her name. That she constructed ground plus two stored building with two flats on each floor. Completion Certificate in respect of the construction was issued on 25/11/1991. That construction was carried out by her through contributions given by her three sons Amar, Bhausaheb and Suhas. Thus, Plaintiff claims ownership in respect of Plot as well as the constructed structure. That she allowed her sons-Bhausaheb to occupy Flat no. 1 on ground floor and Suhas to occupy the Block No. 2 on the ground floor. That the Plaintiff herself resided in the Flat no. 5 on the first floor. That the entire second floor remained in the possession of her son ' Amar, who was Anesthetist by profession and has been settled in USA. That the Plaintiff was also using the Flat No. 4 on the first floor, which was in her possession.

(3.) Plaintiff further pleaded that Defendant No. 1-Anil is also her son and he was serving in the Department of National Highways Department of Government of Maharashtra and was allotted a government quarter. That Anil retired in July 1997 but continued to occupy the government quarter for considerable period of time. He requested Plaintiff to allow him to reside in one of the flats in the constructed building by Plaintiff. The Plaintiff therefore allowed Anil to occupy Flat no. 4 on the first floor temporarily and this is how, Anil shifted in the said Flat no. 4 alongwith his family on 1/3/1998.