TaxTMI 
TaxTMI 
2017 (11) TMI 2055
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.... appeal filed by the Respondent herein and set aside the judgments and decrees of the Trial Court and First Appellate Court. 3. In order to appreciate the issues involved in the appeal, it is necessary to state few relevant facts. 4. The Appellant is the Plaintiff whereas the Respondent is the Defendant in the civil suit out of which this appeal arises. 5. The dispute involved in the appeal relates to a shop measuring 9 ft. 9 inch North and 5 ft. East West situated out of land bearing CTS 1590/A-4 in the City of Belgaum (as detailed in plaint) (hereinafter referred to as "suit shop"). 6. One Vithal Dhopeshwarkar was the owner of the suit shop along with the land over which the suit shop is built and some adjoining land. He sold the land....
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....ea that he has perfected his title by virtue of adverse possession over the suit shop against the predecessor-in-title of the Appellant and the Appellant. 10. The Trial Court framed the issues. Parties led evidence. By judgment/decree dated 03.11.2003 in O.S. No. 115 of 2003, the Trial Court decreed the Appellant's suit. The Trial Court held that the Appellant is the owner of the suit shop, that the Respondent failed to prove his adverse possession over the suit shop, that the Respondent has been in illegal possession of the suit shop and that the Appellant is entitled to claim eviction of the Respondent from the suit shop and also entitled to claim mesne profits at the rate of Rs. 2000/- p.m. for a period of three years and the cost o....
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.... perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned judgment of the High Court restore that of the Trial Court and First Appellate Court, which had rightly decreed the Appellant'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 H....
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....ts of the case, we find that the High Court had admitted the second appeal by framing the following question of law: Whether the Courts below have committed an error in the manner of considering the pleadings as well as the evidence available on record and as to whether the same is contrary to the recitals in the documents at Exhibit P. 15? 21. Reading of the aforementioned question shows that the only question, which the High Court was required to consider in the appeal, was whether the Trial Court and First appellate Court decided the case contrary to the pleadings and evidence and especially contrary to the recitals of EX-P. 15. 22. The High Court, however, did not frame any other question of law to examine the legality and correctne....
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....t 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 its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the Respondent in his written statement. As mentioned above, the d....
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....9. That apart, even if we examine the question framed by the High Court as arising in the case, we are of the considered opinion that the question has to be answered against the Respondent (Appellant before the High Court) and in favour of the Appellant herein for more than one reason mentioned below. 30. First, the Respondent did not adduce any evidence to prove that he was in possession of the suit shop as tenant of the Appellant's predecessor-in-title. In order to prove the tenancy between the Respondent and the Appellant's predecessor-in-title (Vithal Dhopeshwarkar), it was necessary for the Respondent to have filed rent receipts/lease deed etc. and also to have examined his landlord who, according to him, had inducted him as t....