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TMI Blog2017 (11) TMI 2055X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of law as to whether the findings of the two Courts below were contrary to the pleadings and evidence and especially to Ex-P-15 and held, by placing reliance on Ex. P-15, that the Respondent was occupying the suit shop as tenant and, therefore, the remedy of the Appellant was in filing a tenancy suit against the Respondent and to claim his eviction from the suit shop under the State tenancy laws or/and Transfer of Property Act in such suit but not in the present suit which is based on the strength of his title. The High Court, with this finding, accordingly allowed the appeal and dismissed the Appellant's suit as being misconceived. The defense of the Respondent was that he had denied the Appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial - It was clear that the Respondent never claimed that he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. On the other hand, the Respondent had asserted his ownership right over the suit shop on the strength of his long advers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iming possession of the suit shop from the Respondent. The suit was founded on the allegations, inter alia, that the Appellant is the owner of the suit shop having purchased the same vide registered sale deed dated 20.09.1997 from Vithal Dhopeshwarkar. It was alleged that the Respondent was in possession of the suit shop without any right, title and interest of any nature. 8. In other words, according to the Appellant, the Respondent, since inception, was in illegal possession of the suit shop. The Appellant, on purchase of the suit shop, therefore, requested the Respondent to vacate the suit shop but he failed to vacate and hence the Appellant became entitled to claim possession of the suit shop from the Respondent on the strength of his ownership over the suit shop. A relief of mesne profits at the rate of Rs. 2500/- per month was also claimed. 9. The Respondent filed written statement. He denied the Appellant's title and claimed that he has been in possession of the suit shop since time immemorial and much prior to the Appellant's purchasing the suit shop. The Respondent also raised a plea that he has perfected his title by virtue of adverse possession over the suit shop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s suit against the Respondent in relation to the suit shop. 16. In our considered opinion, the approach of the High Court in deciding the second appeal, which resulted in allowing the Respondent's appeal, is wholly perverse and against the well settled principle of law applicable to second appeals and to the factual controversy involved in the case as would be clear from our reasons set out hereinbelow. 17. Section 100 of the Code deals with second appeals. Sub-section (4) says that where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate that question. Sub-section (5) says that the appeal shall be heard on the question so formulated . It further provides that the Respondent is allowed to raise an objection at the time of hearing of the appeal that the question which has been framed does not involve in the case or in other words, is not a substantial question of law and, therefore, the appeal is liable to be dismissed as involving no substantial question of law within the meaning of Section 100 of the Code. 18. The proviso to Sub-section (5), however, recognizes the power of the High Court to frame any other substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to claim his eviction from the suit shop under the State tenancy laws or/and Transfer of Property Act in such suit but not in the present suit which is based on the strength of his title. The High Court, with this finding, accordingly allowed the appeal and dismissed the Appellant's suit as being misconceived. 25. In our considered opinion, the aforesaid finding of the High Court is wholly illegal and unsustainable in law besides being against the pleading and evidence. This we say for following reasons: 26. First, the Respondent (Defendant) had not raised such plea in his written statement. In other words, the Respondent did not set up such defense in the written statement. Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to him, had inducted him as tenant in the suit shop. It was not done. 31. Second, Ex. P-15, which is sale deed of the suit shop nowhere recites that the Respondent was in possession of the suit shop as tenant. All that it recites is that the Respondent has been in possession of the suit shop. Such recitals, in our opinion, no way confer the status of a tenant on the Respondent in the absence of any independent evidence adduced by him to prove the creation of tenancy. No benefit of Ex. P-15 could thus be taken by the Respondent to claim the status of a tenant. 32. In the light of aforementioned reasons, we are of the considered opinion, that the High Court was not right in holding that the Respondent was in occupation of the suit shop as tenant and that the remedy of the Appellant was to file a civil suit to claim eviction under the Rent Laws. This finding, in our view, is contrary to the pleadings and evidence. It is also otherwise not legally sustainable for want of any evidence adduced by the Respondent in support thereof. 33. In view of foregoing discussion, we are of the considered view that the Trial Court and First Appellate Court were justified in holding the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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