BHUPAL TATOBA KUMBHARE Vs. GANPATRAO SAKHARAM SANGAVE

JUDGEMENT

(1.) THIS Second Appeal is preferred against the Judgment and Decree dated 5.1.1990, passed by the Second Additional District Judge, Sangli, in Regular Civil Appeal No.30 of 1987, preferred against Judgment and Decree dated 16.7.1986, passed by the Joint Civil Judge, Junior Division, Miraj in Civil Suit No. 103 of 1978, whereby the Lower Appellate Court confirmed the decision of the Trial Court. The Respondent herein is the original plaintiff. The Respondent filed suit for possession of the suit property against Defendants No. 1 and 2, who are his brothers.

(2.) IT is the case of the plaintiff that the suit property bearing City Survey No.4007, with two storeyed building, belonged to his adoptive mother and after her death he became absolute owner of the suit property. It was further contended on behalf of the plaintiff that since his genetive brothers namely Defendant no.1 and Defendant no.2 had a difficulty about the residential accommodation, he permitted them to occupy the suit property by way of permissive user on gratis. However, since the defendants started claiming the ownership of the suit property he was constrained to file the present suit for eviction against his own genetive brothers. In the said suit defendants took the stand that they are in occupation of the suit premises for more than 50 years. It was contended that about 50 years back the plaintiff was given in adoption to one Smt. Adavva Sakharam Sangve. Admittedly the suit property was the ownership of said Mrs. Adavva Sagave, the adoptive mother of the plaintiff. The defendants contended that they were in possession of the suit property as an owner and spent about Rs.40,000.00 to reconstruct the said house, and therefore,, they have become owner by adverse possession. The trial Court dismissed the suit by its judgment and decree dated 16/7/1986 by coming to the conclusion that defendants are tenant of the suit property and that the Court has no jurisdiction against the aforesaid possession. The plaintiff preferred Regular Civil Appeal No.30 of 1987. In the said appeal, the lower appellate court held that the defendants are not protected under the Rent Act and, therefore, the Civil Court has got jurisdiction. The lower appeal court also held that plaintiff is entitled for the possession of the suit property.

(3.) AGAINST the aforesaid Judgment and Decree passed by the lower Appellate Court on 5.11.1990, the defendant no.2 preferred the present second appeal. Mr. Jahagirdar, the learned counsel appearing on behalf of defendant no.2 contended that the lower appellate court has not taken into consideration the fact that there is ample evidence on record to show that defendant no.2 made construction on the suit property and if that is so, then even presuming for a while that defendants were licensee, they cannot be evicted in view of Section 60(1)(b) of Indian Easements Act. To support the aforesaid arguments Mr. Jahagirdar, the learned counsel appearing on behalf of the appellant showed certain documents. Mr. Angal, the learned counsel appearing on behalf of the original plaintiff took the preliminary objection to the aforesaid argument. It was firstly contended on behalf of plaintiff that defendant no.2 is not entitled to make argument on the point of view of Section 60(1)(b) of the Indian Easements Act. The reason being, the aforesaid point though once agitated by the defendant in Suit, the same was abandoned in view of their stand of adverse possession. Secondly it is pointed out on behalf of the plaintiff that defendants never argued on this point in the trial court as well as lower appellate Court and, therefore, for the first time defendant no.2 is not entitled to agitate on this point. Mr. Jahagirdar, learned counsel appearing on behalf of defendant no.2 contended that even presuming that the argument on section 60(1)(b) of Indian Easements Act was conceded in the lower appellate court since this is not admission of the fact, being concession of law he is entitled to argue the said point in the said appeal.