Case Note & Summary
The appellant, Mukesh Bolgundewar, filed an appeal against an order in a suit for possession of property. The appellant claimed that the trial court's judgment was illegal and perverse because the respondent No.3 (Nagpur Improvement Trust) had not pleaded that the allotment made under letter dated 26.3.1989 was subsequently cancelled on 5.6.1989. The appellant argued that the cancellation, if any, was a matter between the appellant and respondent No.3, and strangers like respondent Nos.1 and 2 had no right to assert its existence. The appellant also relied on Section 108 of the Transfer of Property Act, 1882, which obligates a lessee to deliver possession to the lessor when claimed. The respondent No.1 contended that the allotment was cancelled, and the trial court must adjudicate on evidence whether the appellant's right to seek possession still exists. The High Court found that the trial court's finding on cancellation was based on no evidence and was perverse. The court set aside the impugned judgment and decree and remanded the matter to the trial court for fresh adjudication on the issue of cancellation of allotment, allowing both parties to lead evidence. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Appeal Against Order - Perverse Judgment - The court considered whether the impugned judgment and decree were illegal and perverse, prejudicially affecting the appellant's interest. The appellant argued that the allotment cancellation was not pleaded by respondent No.3 and was a matter between appellant and respondent No.3, not for strangers. The court found that the trial court's finding on cancellation of allotment was based on no evidence and was perverse, warranting remand. (Paras 4-8) B) Transfer of Property Act - Lease - Section 108 - Lessee's Obligation - The appellant-lessee is under a legal obligation under Section 108 of the Transfer of Property Act, 1882 to deliver peaceful and vacant possession to the lessor when claimed. However, the right to seek possession depends on the validity of the allotment, which requires adjudication. (Para 5) C) Civil Procedure - Remand - Fresh Adjudication - The appellate court set aside the impugned judgment and decree and remanded the matter to the trial court for fresh adjudication on the issue of cancellation of allotment, allowing both parties to lead evidence. The appeal was allowed with no order as to costs. (Paras 8-9)
Issue of Consideration
Whether the impugned judgment and decree are so illegal and perverse as to prejudicially affect the interest of the appellant-original plaintiff.
Final Decision
The appeal is allowed. The impugned judgment and decree are set aside. The matter is remanded to the trial court for fresh adjudication on the issue of cancellation of allotment. Both parties are at liberty to lead evidence. No order as to costs.
Law Points
- Section 108 Transfer of Property Act
- 1882
- Lease allotment cancellation
- Right to seek possession
- Perverse judgment
- Remand for fresh adjudication
