Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | eted by original owner - Suit for . eviction by respondent Rent control and eviction - Predecessor in title of respondent purchased the suit premises from a person who was gifted the premises by the original owner - Suit premises occupied by tenant indu |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Rent control and eviction - Predecessor in title of respondent purchased the suit premises from a person who was gifted the premises by the original owner - Suit premises occupied by tenant indu,eted by original owner - Suit for . eviction by respondent - Defendant-tenant" denied the title of respondent on the ground that purchase of property by respondent was not based on valid gift deed as gift deed was not accompanied by giving possession of suit property to the donee and that donee did not have valid title of ownership which he could transfer to the respondent - Held: Since defendant-tenant was in possession of suit premises, as such it was not possible for the donor to handover physical possession of suit premises to the donee - Therefore. constructive possession of suit premises by donor was handed over to donee - Neither the validity of sale deed nor mutation entry in favour of respondent was ยท challenged by the tenant - The same gift deed was challenged by another tenant and the court had upheld the validity of gift deed and also held that title of property had passed on to the respondents - The said order was not challenged - Therefore, it is just and appropriate to follow the same view - Respondent entitled to decree of eviction. Code of Civil Procedure, 1908 - s.100 - Scope of - Second appeal - Substantial question of law - Second appeal in question was filed prior to coming into force of the C.P. C. Amendment Act, 1976 - Second appeal admitted by the Registrar of High Court on G 20.5.1974 and was directed to be placed before the court for hearing under Or.XL/, r. I I - Single Judge of the High Court passed an order of admission on 7.5.1980, after the Amendment Act came into force - But, before the appeal was taken upfor final hearing, respondents-plaintiffs moved an application for amendment of the H appeal memo whereby the substantial qu.e.~rions of law wereormulated - Single Judge allowed that applicalion on 15. 7.2006 - That order was not challenged by appellants-defendants and, therefore, attained finality - Contention of appellants-defendants that the appeal could not have been admitted without formulating substantial question of law - Held: Not sustainable - At the relevant time in 1976, there was no requirement to formulate substantial question of law in the memo of appeal - However, that deficiency was sought to be cured by the respondents-plaintiffs by taking out a formal application for amendment of the memorandum of appeal and permission to urge the substantial questions of law framed in the amendment application - After hearing both the parties, the court, in fact, formulated the substantial question of law and answered the same in the impugned judgment - In that sense, it is not a case of deciding the second appeal sans substantial question of law - Jn the facts of the instant case, there was compliance of s. l 00 as also Or.XLIJ - It is not open to the appellants-defendants to now raise an issue of non{ormulation of substantial question of law while admitting the appeal, having failed to challenge the order dated 7.5.1980 (admitting the second appeal) and dated 15. 7.2006 (allowing the respondents-plaintiffs to amend the memorandum of second appeal with an observation that the court will formulate the substantial question of law at the time of hearing of the appeal) |
Judge | Hon'ble Mr. Justice A.M. Khanwilkar |
Neutral Citation | 2017 INSC 578 |
Petitioner | D. N. Joshi (d) Thr. Lrs. & Others |
Respondent | D. C. Harris & Another |
SCR | [2017] 7 S.C.R. 326 |
Judgement Date | 2017-07-03 |
Case Number | 6139 |
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