PREMNATH RAGHUNATH NATEKAR Vs. JANARDHAN HARI NAIK

JUDGEMENT

(1.) THIS appeal was admitted on the following substantial questions of law:- (1) Whether after the appellate Court had rejected the plea of benami transaction taken by the deceased Janardhan, restoration of possession could be ordered in favour of the said Janardhan; (2) Whether the findings of the appellate Court that the said Janardhan Hari Naik was lawfully residing in the suit house at the time of eviction are perverse.

(2.) THE facts, in brief, relevant for the decision are that in execution proceedings no. 44/82 initiated pursuant to the decree passed in Regular Civil Suit No.23 of 1982 by the Civil Court at Mapusa, the predecessor of the respondent herein was evicted from the suit house bearing no.4/261 in the property by name "Agracho Bando" situated at Agarwado, Calangute, Bardez, Goa in the execution of the said decree. Pursuant to the eviction, the said predecessor of the respondent by name Janardhan Hari Naik filed an application under order 21, Rule 99 of Code of Civil Procedure complaining that his dispossession from the suit house was illegal since the suit house belonged to the said Janardhan and that Moga, the sister of the said Janardhan, from whom the appellant claimed to have purchased the property by virtue of sale deed dated 17-10-1981, was mere benamidar having no lawful interest or any sort of right in or to the suit house and, therefore, the decree pursuant to which the said Janardhan was evicted was null and void and could not have been executed to dispossess the said Janardhan from the suit house and that, therefore, he was entitled for restoration of possession of the suit house. On the other hand, it is the case of the appellant that having purchased the property by deed dated 17-10-1981 from the said Moga, who was the lawful holder of title to the property, and the decree having been passed for eviction of the said Moga who continued to remain in possession of the suit house inspite of the sale of the same in favour of the appellant, and the said Janardhan having not disclosed any right to the property and whatever right which was claimed being not substantiated in any manner, he was not entitled for restoration of the possession of the suit house.

(3.) AS regards the possession of the suit house, there is no doubt that the lower appellate Court has held that the respondents were in possession of the suit house on the day they were evicted in the course of the execution of the decree passed by the Civil Court in favour of the appellant. Moreover, as rightly submitted by the learned advocate for the appellant, there is absolutely no discussion of whatsoever nature nor any materials disclose either in the judgment of the lower appellate Court or even that of the lower Court, which can even remotely suggest that the respondents were occupying the suit house having some title or right to the same. AS already seen above, the respondents have failed to establish their claim to the suit house on the basis of the sale deed dated 23-5-1973. Admittedly, the said sale deed is in favour of Moga, the sister of late Janardhan. The claim of benami transaction having not been proved and apart from the said claim the respondents having not disclosed any sort of right or interest of whatsoever nature in the suit property, there is no material available on record to hold that the occupation of the respondents in the suit house could have been said to be lawful. Besides the testimony of the witness Dr. Jagannath Dukle which is referred to by the lower appellate Court to arrive at the finding that the respondents were in occupation of the suit house, it is not disclosed therein that the respondents were actually residing in the suit house. The witness, in fact, has stated that the respondents were not residing in the suit house but "they were inside by aggression". The statement by a person to the effect that somebody is found inside the premises by way of aggression cannot itself lead to the conclusion that such person had been residing in the suit house. Even otherwise, referring to the other witnesses even if it is to be held that the respondents were in possession of the suit premises on the day they were stated to have been evicted therefrom in execution of the decree, unless the respondents disclose the right to occupy the premises independent of the right of Moga to the property which was assigned by her in favour of the appellant, it cannot be said that the respondents' occupation of the suit house was lawful.