First Appeal (Stamp) No. 30095 of 2012

5th April, 2013

Petitioner Counsel: Mr. Rustom Pardiwala
Respondent Counsel: Mr. S.A. Jabbar , Tanvir Shaikh

JUDGMENT

JUDGMENT :- Appellant has tendered paper book, which is taken on record. By consent of parties, appeal is taken up for final hearing.

2. This appeal arises out of Short Cause Suit No. 568 of 1984 from the court of City Civil Court, Bombay.

3. Albert Sebastian D'Aguiar was original plaintiff. Defendant is his real brother. He filed the suit. The story contained in the plaint is summarised as follows:

(a) Suit property was owned by plaintiff's father. Plaintiff got it on the basis of gift deed.

(b) Other incidental facts are not material for decision, hence, those are not mentioned. Plaintiff's name was recorded.

(c) Defendant resided in the said property since father's time. Defendant has been helping the plaintiff in collecting rent and certain aspects of management of the property.

(d) Thereafter plaintiff resumed management including collecting of rent.

(e) On 14.4.1983 plaintiff requested the defendant to quit. Defendant failed.

(f) Plaintiff served notice through Advocate which is dated 10.5.1983. It was replied by defendant. In the reply the defendant set up a plea which reads thus :

"Please note that my client is amply protected under the provisions of Bombay Rent Control Act and your client has no right, to call upon him to vacate the same. Please note that inspite of all this if your client still continues giving such threats he will have to face dire consequences."

(quoted from letter of Defendant's Advocate page 85 of paper book)

(g) Plaintiff again served notice through Advocate. Denied the contentions and due to failure of defendant to vacate, filed suit for possession.

4. After death of plaintiff, the suit is continued by legal representatives, who are present respondents.

5. Defendant resisted the suit. In the written statement the defendant set up a plea of tenancy which he had disclosed in reply to notice. Crucial paragraphs of plaint referring to antecedent incidents are evasively denied.

6. Defendant set up two alternate pleas, one of which was incorporated by amending the plaint. It would be convenient to refer to said alternate plea by quotation, which reads as under:

"10A. The Defendant states that the Plaintiff claims to be the owner of the suit property on the basis of an alleged Gift Deed dated 22.10.1969 and has filed the above suit against the Defendant on the basis of trespass.

10B. The Defendant states that his other brother namely Felix S. D'Aguiar and two other brothers have filed a Suit in this Hon'ble Court being S.C. Suit No. 1689 of 2003, for a Declaration that the said Gift Deed dated 22.10.1969, is illegal, fraudulently unenforceable and void and for other relief.

10C. The Defendant submits that if the said S.C. Suit No. 1689 of 2003 is decreed and the Gift Deed is set aside, the Defendant will not be tenant of the Plaintiff but a co-owner of the suit property in his own right. The Defendants right to the suit property will be that of a Co-owner and not as a tenant as stated in Written Statement. The Defendant submits that on that ground also the plaintiff's suit will have to be dismissed with costs."

(quoted from Ex.B Written Statement page 15 of paper book)

7. The Defendant also set up an alternate plea which was incorporated not in the written statement but in subsequent submissions etc. by way of adverse possession.

8. It is pertinent to note that the defendant carried legal proceedings, namely, Suit No. 1689 of 2003 for declaration that the defendant is not tenant but the owner of the property and also that the gift deed dated 12.10.1969 is illegal, fraudulent etc.

9. Admittedly, the plea of tenancy as well as co-ownership were lost by the defendant, since the defendant lost the said suit and it has attained finality.

10. In the hearing of the suit the plaintiff 1(e) filed affidavit of examination in chief for the plaintiffs. The plaintiffs have thereby made an effort to prove the documents which were relied upon by the plaintiffs. Plaintiff 1(e) was cross-examined. The cross examination is extremely brief. It would be useful to refer it by quotation as below:

"Cross examination by Adv. Ms. Trupti Naik for defendant.

2. Deceased original Plaintiff was my father. Defendant is my uncle. My father died on 12/12/2003. At the time of execution of gift deed exh. 10, I was nine years old. I am not aware whether my father had given intimation of execution of gift deed exh. 10 to defendant till year 1984. We are in possession of the suit premises.

3. My uncle that is defendant and his family are also staying in the suit premises. Since birth the defendant has been staying in the suit premises. Suit premises consists of 11 rooms and a big passage (warhanda). My mother is paying taxes of the suit property to MCGM. The suit property still stands in the name of my father, that is deceased plaintiff.

No Re-examination."

(quoted from Examination of Plaintiff No.1(e) Mrs. Fay Maria Pinto - Exhibit 'E' page 88 & 89 of paper book)

11. It is evident from the text of cross examination that defendant could not elicit anything useful to support his plea.

12. Defendant has led his evidence by affidavit which is on record page 90 of the paper book. He admits that he had failed in the civil proceedings in relation to gift as well as tenancy.

13. In this affidavit of examination-in-chief, he has set up a plea of being adverse to the plaintiff's title and hence having perfected the title. The relevant plea can be read in paragraphs 22, 23 and 24, which reads as follows:-

"22. I say that I was in possession, occupation and use of the suit premises right from my birth and after the death of my father on 11/09/1970, I came to be in exclusive possession, use and occupation of the suit premises hostile to all others and the whole world irrespective of the effects of the dated Gift Deed dated 22nd October 1969 which led to animosity with all my other brothers including the Original plaintiff. The animosity is in fact fortified by the filing of the present suit by the Original plaintiff, my brother. I say that my possession is adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner.

23. I say that I have acquired title of the suit property by adverse possession by denial of the true owner's title which is peaceful, open and continuous for a period of more than 12 years i.e. from the date of death of my father on 11/09/1970 till 1984 i.e. the date of filing the suit. I say that my possession is open and hostile enough to be capable of being known by the parties interested in the property.

24. I therefore say that I have perfected my title to the suit property by adverse possession adverse to the Plaintiff."

(quoted from Affidavit of Examination in Chief of the Defendant -Exhibit 'F' page 97 of the paper book)

14. The learned trial Judge found that considering the alternate plea of co-ownership raised by the defendant his plea of tenancy had in fact vanished.

15. The learned trial Judge found in relation to plea of adverse possession as follows :-

"18. ...........It further transpires from the testimony of defendant that for the first time the defendant has taken stand that he has perfected the title to the suit property by adverse possession. He has acquired title to the suit property by denying the title of true owners. He has been in peaceful, open and continuous possession of the suit property for a period of more than 12 years i.e. from the date of death of his father i.e. from 11.09.1970 till 16.01.1984 i.e. date of filing of the suit. However, there are no averments in the written statement to that effect. In other words it is not the case of defendant that he has acquired title of the suit property by adverse possession. His possession was hostile to all co-owners of the suit property. There is no reference in the written statement that the defendant has perfected his title to the suit property by adverse possession. It is settled principle of law that party to the suit has to first plead and then prove it. The party to the suit is not permitted to lead evidence which traverse the pleading. However, on the point of adverse possession the evidence of defendant is very brittle and scanty.................."

(quoted from paragraph 18 of judgment dated 31.8.2012 in S.C. Suit No. 568 of 1984 - page 40 of the paper book)

16. When this appeal was taken up for final hearing, learned Advocate for the appellant has restricted his submissions to the plea of adverse possession.

17. Court expected and called upon the learned Advocate to specify the date and event from which the defendant has set up his claim in total hostility to admitted ownership of the plaintiffs. Learned Advocate for the appellant was at complete loss to be able to find out any event or a date from which and from the conduct of defendant he had set up total adverseness to the plaintiffs possession either from the pleadings or from evidence or affidavit whatever was on record before the trial court. His admission in the written statement that he continued to recover rent from the tenant or on behalf of the plaintiffs destroys his intelligently crafted but total facile plea of adverse possession.

18. Not only that the suit was defended without any right, title and interest and sheerly taking benefit of courtesy due to family affinity, the defendant's attitude is proved to be vexatious.

19. Considering that not only the suit is contested without merits, it has come to the stage by raising one after other alternate pleas. True it is that every litigant has right to elect and continue to elect additional and alternate pleas as may be available in law. However, this right of choice and election does not mean that the litigation should be permitted to tend to vexatious level.

20. This court therefore put the defendant to notice as to why special and exemplary costs should not be awarded to the plaintiff while dismissing appeal.

21. Learned Advocate for the appellant urged that if at all the appeal has to fail, order of costs should not be more than Rs.10,000/-.

22. Therefore, this court is satisfied that not only the suit was contested on totally false and untenable defence but it was fully loaded with the attitude of being vexatious. In the result not only that appeal would be liable to be dismissed but with exemplary costs. Apart from costs as available in law would be liable to be awarded with costs which this court hereby award.

23. Appeal is dismissed. Plaintiffs shall be entitled to costs throughout and in addition special costs of Rs.25,000/- for being required to face vexatious defence.

Appeal dismissed.