KAUSAL YABAI & AKKABAI (DEAD) BY LRS. versus HARISHCHANDRA MUNNALAL GUPTA

Citation: [2009] 3 S.C.R. 1096 · Decided: 03-03-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

[2009] 3 S.C.R. 1096 
A 
KAUSAL YABAI & AKKABAI (DEAD) BY LRS. 
v. 
HARISHCHANDRA MUNNALAL GUPTA 
(Civil Appeal No. 1367 of 2009) 
B 
MARCH 3, 2009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
' --... 
Code of Civil Procedure, 1908: 
c 
s. 100 - Second appeal - High Court dismissing second 
appeal in limine - HELD: Suit for recovery of possession 
based on grant of permanent lease which grant by subsequent 
events could not attain finality, High Court ought to have 
considered the consequential effect - High Court would 
D 
~ecide the second appeal afresh after formulating substantial 
,.-
question of law. 
The plaintiff-respondent filed a suit against her 
widowed sister, the defendant-appellant for recovery of 
possession of the suit property. The plaintiff's case was 
E that he had been granted a permanent lease by the Naib 
Tehsildar on 30.11.1979; that the defendant was a 
licensee and the licence was revoked by a notice dated 
3.5.1982. When the defendant came to know of the 
proceedings before the Naib Tehsildar, she filed a review 
F application and ultimately the order dated 30.11.1979 was 
set aside. On appeal by the plaintiff, the Commissioner 
~irected the Collector to await decision of a competent 
court. In the civil suit the defendant amended the plaint 
to the effect that she acquired title ~Y adverse 
G possession. The suit was dismissed by the trial court, but 
was decreed by the first appellate court. The plea of 
adverse possession was also held not available to the 
defendant. The second appeal of the defendant having 
be.en dismissed in limine, she filed the appeal. 
H 
1096 
KAUSALYABAI & AKKABAI (DEAD) BY LRS. v. 
1097 
HARISHCHANDRA MUNNALAL GUPTA 
' 
\ 
Allowing the appeal and remitting the matter to the 
A 
~ 
High Court, the Court 
HELD: The plaintiff-respondent in the suit proceeded 
on the basis that he had title over the suit property by 
reason of the grant of permanent lease in terms of the 
B 
order dated 30.11.1979 passed by the Nayab Tehslidar .. 
,) 
However, the said order having regard to the subsequent 
event must be held to have not attained finality and the 
consequential effect requires consideration. If the 
contention of the defendant-appellant that the property c 
belonged to her father, and the same devolved on plaintiff 
and his brother in equal shares, is correct, the 
subsequent events which have taken place should have 
been taken into consideration by the High Court. If the 
.. 
other brother of the plaintiff had equal share in the 
D 
' 
property, who is now dead, and whose heirs and legal 
representatives are said to be residing in the same 
premises, the High Court may have to consider the effect 
of their non-impleadment in the suit. The High Court 
would consider the matter afresh upon formulating 
substantial questions of law. [Para 9 and 10] [1101-A, 8, 
E 
C; 1101-E] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
1367 of 2009. 
From the Judgment & Order dated 29.6.2004 of the High 
F 
Court of Judicature at Bombay, Nagpur Bench, Nagpur in 
• 
Second Appeal No. 13/2001 . 
Manish Pitale and Chander Shekhar Ashri for the 
Appellants. 
G 
Aniruddha P. Mayee for the Respondent. 
The Judgment of the Court was delivered by 
H 
1098 
SUPREME COURT REPORTS 
[2009) 3 S.C.R. 
A 
S.B. SINHA, J. 1. Leave granted. 
; 
' 
~ 
2. Defendant in a suit for recovery of possession filed by 
her brother (Respondent) is before us challenging the legality 
and/or validity of the judgment and order dated 29.6.2004 
B passed by a learned Single Judge of the High Court of 
Judicature at Bombay, Nagpur Bench, Nagpur in Second 
Appeal No.13 of 2001 dismissing an appeal preferred by the 
appellant herein against a judgment and order dated 7.12.2000 
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whereby and whereunder the judgment and order dated 
c 25.01.1995 passed by the learned Trial Judge was reversed. 
3. Original parties to the suit were brothers and sisters. 
They had another brother, Dr. D.C. Gupta. The property in suit 
is said to be an ancestral property. Appellant became a widow 
in 1945. She, therefore, came to stay with her parents. Father 
D of the original parties died in 1947. Respondent and his brother, 
... 
therefore, became owner of the properties. Plaintiff-respondent 
was a Constable. He had been occupying a Government 
accommodation. Allegedly, he allowed his sister to stay in his 
house, inter alia, on the condition that she would vacate the 
E same on his retirement. 
4. Plaintiff in his plaint all

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