{"id":177879,"date":"2005-05-06T00:00:00","date_gmt":"2005-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hindustan-petroleum-corporation-vs-dilip-prabhakar-dingorkar-and-on-6-may-2005"},"modified":"2016-11-08T06:31:11","modified_gmt":"2016-11-08T01:01:11","slug":"hindustan-petroleum-corporation-vs-dilip-prabhakar-dingorkar-and-on-6-may-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hindustan-petroleum-corporation-vs-dilip-prabhakar-dingorkar-and-on-6-may-2005","title":{"rendered":"Hindustan Petroleum Corporation … vs Dilip Prabhakar Dingorkar And … on 6 May, 2005"},"content":{"rendered":"
Bombay High Court<\/div>\n
Hindustan Petroleum Corporation … vs Dilip Prabhakar Dingorkar And … on 6 May, 2005<\/div>\n
Equivalent citations: 2006 (3) MhLj 488<\/div>\n
Author: D Deshpande<\/div>\n
Bench: D Deshpande<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.G. Deshpande, J.<\/p>\n
1. Heard  Mr.  Sanglikar for the Appellants in  Second Appeal  No.   1281 of 2004 and for Respondent  No. 2  in Second  Appeal  No.   615 of 2004.  Mr.  Anne  for  the Respondent  No. 1  –  Owner in both  the  Appeals.   Mr. Siodia  for the Appellants in First Appeal No.  615  of 2004 and for Respondent No. 2 in Second Appeal No.  1281 of 2004.\n<\/p>\n
2.   I will be referring to the parties by their original nomenclature  in the suit as plaintiff and  defendants. Following  substantial questions of law were formulated by Justice Kakade on 28.4.2004 :\n<\/p>\n
(1) Was it right and proper for the Courts below to consider  the  material fact that the earlier  suit being R.C.S. No. 128 of 1990 was barred by limitation and therefore, under Section 27 of the Limitation Act, the respondent – plaintiff’s right to institute a suit for possession of the property had extinguished?\n<\/p>\n
(2)  Was it right and proper for the Courts below to hold  that  the  present  suit  is  not  barred  by limitation  when  the reliefs in earlier suit  i.e. R. C. S.   No.  120 of 1990 and the present suit i.e. R.C.S.   No.   181  of 2000 are same and  cause  of action  is same and reliefs claimed with respect to the  suit  property are same and when  the  earlier suit   i.e.   R.C. S.   No.    120  of  1990  stands dismissed as being barred by the law of limitation.\n<\/p>\n
(3)   Whether  the plaintiff could at the same  time adopt  two remedies for possession of the  premises i.e.  a writ petition challenging the orders passed in  a  suit filed for possession which came  to  be dismissed  and  during  the pendency  of  the  writ petition  he  could file a second suit on the  same grounds the same cause of action?\n<\/p>\n
(4)   Whether  the provisions of Section 3(1)(b) of the Maharashtra Rent     Control Act is unconstitutional  and or ultra vires Articles 14 of the Constitution of India?\n<\/p>\n
(5) The appellants submit that Civil Appeal No. 8017 of 1392 filed by Crompton Greaves Limited challenging Section 3(1)(A) of the Maharashtra Rent Control Act is pending before the Hon’ble Supreme Court of India and has hot been decided as of date?\n<\/p>\n
3. So far as Second Appeal No. 1281 of 2004 is concerned, it was not even admitted and Mr. (sic) for the landlord – plaintiff raised a preliminary objection to the maintainability of the Second Appeal. He contended that from the original decree that was passed by the trial court M\/s. Ideal Automobiles did not prefer First Appeal and did not challenge that order and therefore now they cannot be permitted to file Second Appeal. According to him therefore the Second Appeal is not maintainable. Mr. Sanglikar for M\/s. Ideal Automobiles could not show any provision of law under which he could file Second Appeal when he not filed First Appeal at all. Therefore, objection of Mr. Anne is required to be upheld and this Second Appeal No. 1281 of 2004 is required to be dismissed before admission and accordingly it is dismissed. It is quite difficult that M\/s. Ideal Automobiles can be heard as respondent in the Appeal No. 615 of 2004 supporting the claimants contention of the appellant in that appeal.\n<\/p>\n
4.  The  original  plaintiff is the owner of  the  suit property  i.e.  his grand father was the original owner and Final Plot No. 211, Sub Plot No. 7, Panvel, was let out on monthly rent of Rs.  100\/- for a period of 10 years. The lessee at that time M\/s. Standard Vacuum Oil Company in course of time Hindustan Petroleum Corporation Limited (HPCL) came to be recognised as lessee and there is no dispute about that between the parties.\n<\/p>\n
5.   In  1990  owners of the property  i.e.   Respondent No. 1 Dilip Dingorkar and his grand father filed a Civil Suit  No.   120  of  1990 for possession  of  the  suit property   after  terminating  the   tenancy   of   the defendants  in  that  suit   i.e.   present  appellant. (present  appellants means HPCL because appeal No.  615 of  2004  only  is being taken for  hearing  and  other appeal  i.e.  Second  Appeal  No.  1281  of  2004  being dismissed  as  not  maintainable.  The  said  suit  for possession  came  to be dismissed by the  Civil  Judge, J.D.  Panvel, on 10.11.1995.\n<\/p>\n
6.   The owners filed Civil Appeal.  It was Civil Appeal No.   280  of 1995,  It was dismissed on 9.11.1998  by Additional  District  Judge, Raigad, Alibag.  Then  the owners  filed Writ Petition No.  604 of 1999, which  is still pending in this court.\n<\/p>\n
7.   Thereafter Respondent No. 1 – Plaintiff again served the  defendants  with  notice   of  termination   dated 19.3.2000  calling upon them to vacate the property and deliver possession thereof. This notice was replied to by the present appellant on 23.10.2000 and then Regular Civil Suit No. 181 of 2000 came to be filed before Civil Judge, Senior Division, Panvel, for possession and mesne profits. That suit was opposed by the present appellant and also original defendant No. 2 Ideal Automobiles but that suit was decreed by the court on 13.12.2002. The appellant preferred an appeal before the District Court, Raigad, vide Civil Appeal No. 6 of 2003 but by judgment and decree dated 4.2.2004 that appeal came to be dismissed, hence this Second appeal.\n<\/p>\n
8.   At  the  time  of admission, as stated  above,  the aforesaid  questions of law were framed and  formulated by  the court.  I extensively heard Mr.  Sanglikar, Mr. Anne  and Mr.  Siodia for HPCL.  I will deal with their respective  submissions  while considering each of ‘the above questions of law.\n<\/p>\n
9.  The  first and second substantial questions of  law are as under:\n<\/p>\n
(1) Was it right and proper for the Courts below to consider the material fact that the earlier suit being R.C.S. No. 120 of 1990 was barred by limitation and therefore, under Section 27 of the Limitation Act, the respondent – plaintiff’s right to institute a suit for possession of the property had extinguished?\n<\/p>\n
(2) Was it right and proper for the Courts below to hold  that  the  present  suit  is  not  barred by limitation  when  the reliefs in earlier suit  i.e. R.C.S.   No.  120 of 1990 and the present suit i.e. R.C.S.   No.   161  of 2000 are same and cause  of action  is same and reliefs claimed with respect to the  suit  property are same and when  the  earlier suit   i.e.   R.C.S.   No.    120 of 1990  stands dismissed as being barred by the law of limitation?\n<\/p>\n
In this regard it was mainly contended by Advocate for HPCL and Mr. Sanglikar supporting HPCL that when first suit was barred by limitation whether the plaintiff had a right to institute a fresh suit for possession or whether that right is extinguished. It was argued by counsel for the appellants. A perusal of plaint in earlier first suit No. 120 of 1998, hereinafter referred to as “the first suit” will show that it was based on notice of termination dated 5.4.1978 given by the plaintiff and calling upon the defendant to vacate the suit premises at the end of 31.7.1978 and handing over possession after restoration of the land to its original condition. This notice was given by the plaintiff under the Transfer of Property Act and the suit came to be filed on the basis of that cause of action given in paragraph 18 of the plaint in the first suit and it was instituted on 21.12.1990. Admittedly, that suit was dismissed. The appeal of the plaintiff  was  also dismissed and then  writ  petition which is filed, is still pending.\n<\/p>\n
10.  In  this background, Advocate for the Appellant and Sanglikar contended that if the first suit was barred by limitation then whether the plaintiff was entitled to file second suit and whether his right to recover the possession is extinguished. As against this submission, Mr. Anne contended that though the first suit was filed after giving notice under Section 106 of Transfer of Property Act, there was no legal bar against the plaintiff in instituting: the second suit by another notice of termination. He contended e.g. if the earlier notice of termination was not in conformity with the requirements of Section 106 of the Suit on that count fails. The landlord owner is not prevented by any provision of law from giving second notice and instituting the second suit. Therefore, according to Mr. Anne there is no legal bar in institution of the second suit.\n<\/p>\n
11.  As  against this, so far as extinguishing of  right of  the plaintiff in the property is concerned, counsel for  the  appellant  relied  upon  Section  27  of  the Limitation Act 1963, it reads as under :\n<\/p>\n
 “27.  Extinguishment of right to property.-  At the determination  of the period hereby limited to  any person for instituting a suit for possession of any property,  his  right  to such property  shall  be extinguished.”\n<\/p>\n
12. Advocate for the appellant therefore contended that the notice of termination of tenancy for the first suit was  given  in  1978 then after 12 years the  suit  was filed  and  then  that suit and the appeal came  to  be dismissed.   The  plaintiff  gave   another  notice  on 19.9.2000  and  therefore since the period of 12  years for  recovering  possession has elapsed, right  of  the plaintiff  to recover property stood extinguished under Section 27.\n<\/p>\n
13.  It is difficult to accept this contention, firstly, it  is pertinent to note that none of the defendants in the  second suit raised a plea of resjudicata.  If  the facts  in  the  first  suit and the  second  suit  were identical  and the cause of action was also  identical, as  argued  by  the appellant, then  the  appellants  -defendants  could  have raised plea of resjudicata  but they  have  not raised that plea and obviously  because the  cause  of action for both the suits is  different. There  is  no bar under the provisions of  Transfer  of Property Act which can prevent or prohibit the landlord from   filing   successive  suits  on  the   basis   of termination  of notice because if the earlier notice is not legal and valid and has does not legally terminated the  tenancy as required by Section 106 of the Transfer of  Property Act, the  the right of the landlord is not lost for ever and he will give fresh notice and terminate the tenancy and file a suit. Nothing contrary to this was shown to me by any of the lawyers for the original defendants excepting Section 27 of the Limitation Act, 1963, as stated and reproduced above.\n<\/p>\n
14. Even Section 27 cannot come in the way of the plaintiff in instituting the second Suit. It has to be noted that Section 27 is included in Part IV and the title of the Part IV is “Acquisition of Ownership by possession”. There are in all three sections in this Part IV i.e. Sections 25, 26 and 27. I am reproducing both the Sections i.e. Sections 25 and 26 as below:\n<\/p>\n
“25. Acquisition of easement by prescription.-  (1)Where the access and use of light or air to and for any  building have been peaceably enjoyed therewith as   an   easement,  and as. of  right,   without interruption,  and for twenty years, and where  any way  or watercourse or the use of any water or  any other  easement  (whether affirmative or  negatived has been peaceably and openly enjoyed by any person claiming  title  thereto as an easement and as  of right  without  interruption and for twenty  years, the  right  to such access and use of lighter  air, way, watercourse,  use of water, or other  easement shall be absolute and indefeasible.\n<\/p>\n
(2)  Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.\n<\/p>\n
(3) Where the property over which a right is claimed under Sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.\n<\/p>\n
26.  Exclusion in favour of reversioner of servient tenement.-  Where any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life in terms of years exceeding three years from the granting thereof the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interests or term resisted by the person entitled on such determination to the said land or water.”\n<\/p>\n
15. It  has to be noted that first sentence in  Section 27 refers to the following words:\n<\/p>\n
 “At   the  determination  of  the period  hereby limited….”\n<\/p>\n
The  words  hereby  refer  to the two  kinds  of  suits referred in Sections 25 and 26 only and not to any other suit which owner can file against the trespasser or a tenant. If the legislature wanted that all the rights of the owners of the property should stood extinguished if the suits are not instituted within 12 years then such a provision would have been made separately in the Act and the words “At the determination of the period hereby limited” would not have been used. Those words clearly show that they are with reference to the rights enumerated in Sections 25 and 26. Therefore the objections raised by the appellant to both the decrees of the lower court in this regard, are required to be rejected. It has to be held that the right of the plaintiff to institute the second suit was nowhere and at any time extinguished but under Section 27 of the Limitation Act.\n<\/p>\n
16. So far as second issue is concerned, it is also a part of issue No. 1. When there is no bar or prohibition against the landlord in instituting the second suit, then merely because the first suit was dismissed, the second suit cannot be said to be barred by limitation. Cause of action for both the suits is altogether different and not identical and even if therefore purposes of the first suit and the second suit are common and the reliefs claimed are identical what makes a difference is the cause of action and the cause of action in the second suit was fresh notice given on 19.9.2000.\n<\/p>\n
17.  It  was  also  contended  by  the  appellants   and supported by Mr.  Sanglikar that if by the first notice relationship  of landlord and tenant is terminated then nothing  remains  to  be prevented  by  the  subsequent notice  and therefore the second notice is illegal.  So also  the  subsequent suit.  In fact there is no  issue framed  by the court while admitting the appeal in this regard  as  a . substantial question of law  which  were framed  after  hearing the parties.  However,  since  I have  heard arguments on this point, this objection can be decided and disposed of.\n<\/p>\n
18.  As  against  this objection of the appellants,  Mr. Anne  contended  that  as between the issuance  of  the first  notice  and the second notice, Bombay  Rent Act came  to be amended and substituted by Maharashtra Rent Control Act,  which gave fresh cause of action to  the plaintiff  because he can institute a suit against HPCL for  eviction  as  the  protection given  to  them  was withdrawn  and  taken away because their share  capital exceeded Rs.  1 crore.\n<\/p>\n
19.  Mr.   Sanglikar  streneously and  repeatedly  urged that  there  is  no  issue framed  as  to  whether  the protection  granted  to HPCL under the Bombay Rent  Act stood  withdrawn  by the Amending Act,  and,  therefore according  to  him, in the absence of any issue,  court could  not  have  passed decree.  He  cited  number  of decisions in this regard as to the right of the court to frame issues. 1 do not think it necessary to go to these questions because parties to the second suit and all those parties to the first appeal and ‘particularly appellant HPCL never raised that question that protection available to them under the Bombay Rent Act stood withdrawn by virtue of the Maharashtra Rent Control Act. The appellants HPCL cannot contend that their share capital is less than Rs.  1 crore. They have not raised such a plea and therefore this objection and submission cannot be entertained at all. It is required to be rejected.\n<\/p>\n
20.  So   far  as  substantial   question  No.   (2)  is concerned,  when the cause of action for filing  second suit  is  totally different then the court  below  were perfectly justified in holding that the second suit was hot barred by limitation at all.\n<\/p>\n
21.       The third substantial question of law is as under:\n<\/p>\n
 Whether the plaintiff could at the same time adopt two remedies for possession of the premises i.e. a writ petition challenging the orders passed in a suit filed for possession which came to be dismissed and during the pendency of the writ petition he could file a second suit on the same grounds the same cause of action?\n<\/p>\n
In this regard it was contended by Advocate for HPCL and Mr. Sanglikar. that the writ petition against the order in appeal arising out of dismissal of the first suit is still pending and therefore it was not open to the plaintiff to terminate the tenancy again and to file second suit. I have already held that cause of action for the second suit is altogether and totally different and there is no bar in landlord instituting the second suit on fresh and different cause of action. It was the choice of the landlord to wait till the decision of the writ petition and then institute the suit but he has opted to terminate the tenancy again and filed second suit and there is no legal bar in doing so nor any prohibition of law in that regard against the landlord, therefore the third question is to be answered in the negative.\n<\/p>\n
22. Question Nos.  4 and 5 are as under:\n<\/p>\n
Whether the provisions of Section 3(1)(b) of the Maharashtra Rent Control Act is unconstitutional and or ultra vires Articles 14 of the Constitution of India?\n<\/p>\n
The appellants submit that Civil Appeal No. 8017 of 1992 filed by Crompton Greaves Limited challenging Section 3(1)(b) of the Maharashtra Rent Control  Act is pending before the Hon’ble  Supreme Court of India and has not been decided as of date?\n<\/p>\n
Neither  the  Advocate fur the appellants  nor  Mr. Sanglikar  made any submissions referring question Nos. 4  and  5.  Mr.  Anne had also no occasion to give  any reply.  Therefore, I hold that even those questions are framed, they are not required to be answered because no submissions  whatsoever  were made by Advocate for  the appellant,  Mr.   Sanglikar or by Mr.  Anne. . However, Mr.   Sanglikar repeatedly urged that Ideal Automobiles was  in actual physical possession of the property  and they  are  protected  tenants by virtue of  Section 15(1)(A)  of the Bombay Rent Act.  All these arguments of Mr.   Sanglikar  regarding  right of  his  client  M\/s. Ideal  Automobiles, are required to be rejected for two reasons.   Firstly, as to what was actual  relationship was  between  M\/s.  Ideal Automoticles and HPCL  was  a matter  of agreement between them and Mr.  Anne pointed out  that  the  plaintiff  had given  notice  to  Ideal Automobiles  to  produce documents in that regard,  but not  a  single  document came to be  produced  by  M\/s. Ideal  Automobiles  showing the nature of  relationship between  them and HPCL.  Therefore, Mr.  Anne,  rightly argued  that adverse inference should be drawn  against Ideal  Automobiles and merely because they were on  the property they cannot get any right.\n<\/p>\n
23. Counsel  for  the  plaintiff produced before  me  a certified copy of Exhibit 40D which was application by the plaintiff to the court to order the defendant No. 2 to produce (1) the dealership agreement of 1971-72 (20.11.1972), (2) dealership agreement of 1974-75 between defendant No. 1 and defendant No. 2 in the suit, or dealership agreement which governs the relationship of the defendant Nos. 1 and 2 qua the suit land. The plaintiff was required to give this notice inspite of earlier notice to produce dated 5.4.2002, defendant No. 1 did not produce document or defendant No. 1 also did not produce these documents.\n<\/p>\n
24. Non-production of documents by defendant Nos. 1 and 2 regarding the agreement between Defendant No. 1 and 2 is\/a strong circumstance that goes against both the defendants and particularly, against Defendant No. 2. Admittedly defendant No. 1 was a lessee and when it gave a petrol pump for running to defendant No. 2, it could not have conferred more rights to the defendant No. 2 then which the defendant No. 1 enjoyed. Defendant No. 2 could not be in a position to claim anything claimed against defendant No. 1. In case defendant No. 1 wanted to oust him, therefore, when vital documents are not produced, it has to be inferred that, firstly, the documents were adverse to the claim and contention raised by defendant Nos. 1 and 2. Secondly, the document could not have clothed defendant No. 2 with any legal right in the property much less the right of deemed tenant.\n<\/p>\n
25.  Apart  from this, another thing that was brought to my  notice  was the say given by the defendant No. 1  to this notice to produce Exhibit “400”.  In that case the defendant  No. 1 has stated “..the Plaintiff in his suit had categorically mentioned that defendant No. 2 has not independent  right and he has been added as a party  to avoid   objection  \/  obstruction   to  the   execution proceedings”.   These submissions are not  controverted by  this  defendant.  Mr.  Anne therefore  pointed  out that  the  allegation of the plaintiff  that  defendant No. 1 had no independent right were not controverted and if  none of the defendants produce the vital  documents then the claim and contention of the defendant No. 2, in particular, about his right in the property required to. be  rejected.  I do not see any reason to disagree with this submission of Mr.  Anne.\n<\/p>\n
26.  Further  it was pointed out to me by Mr.  Anne that even  though in the second appeal Ideal Automobiles  is supporting  the ‘appellant  and is making hue  and  cry about  their  right in the property, no  oral  evidence whatsoever  was  adduced  in the second suit  by  Ideal Automobiles.   Nobody  on  their   behalf  entered  the witness  box  and  now only on the  basis  of  defences raised in the written statement they are trying to make a mountain of a mole hill i.e.  no evidence or document to  support  their rights and contentions coming  forth before  the  court.  Mr.  Sanglikar could not give  any satisfactory reply as to why inspite of notice to produce documents, those documents which were vital and could have thrown light upon the nature of relationship between Ideal Automobiles and HPCL, were not produced before the court. Secondly, there is no satisfactory explanation at all as to why nobody led any evidence on behalf of Ideal Automobiles regarding their rights vis-a-vis HPCL vis-a-vis the Plaintiff. Therefore, when Ideal Automobiles had an opportunity to substantiate their different contentions by producing documents and adducing evidence and when they have chosen not to produce the vital and important documents before the court and not to lead evidence then all the oral submissions raised, now are required to be rejected.\n<\/p>\n
27. A perusal of the judgment of the trial court in the second suit No.  120 of 1390 shows that the plaintiffs examined Plaintiff No. 1 whereas defendants did not examine any of the defendants or any witness in their behalf to prove their defence. In fact the trial court had framed as many as 21 issues on the basis of the pleadings of the parties. Though the burden of proving all those issues were on the plaintiff, Issue No’s. 6, 7, 8, 3, 10, 11, 12, 13, 14, 15 and 16 were all pertaining to Defendant No. 2 M\/s. Ideal Automobiles. Apart from this, Ideal Automobiles are now raising contention that they are protected tenants. But the basic question is as to what was their right vis-\u00e0-vis the plaintiff and what was the nature of agreement executed between them and the appellant HPCL. Those documents, it has to be said has been suppressed from the court deliberately and intentionally because they could have frustrated all the defences raised by M\/s. Ideal Automobiles.\n<\/p>\n
28.  This being an appeal any submissions   can be made by anybody  with reference to his right but   acceptance  of those  submissions, particularly, submissions  claiming legal  rights,  rights  arising out  of     certain  facts require  evidence  and  since there  is     absolutely  no evidence,  all  the contentions of Mr.        Sanglikar  are required to be rejected.\n<\/p>\n
29.  Regarding  maintainability  of the second suit,  my attention  was  drawn  by Mr.  Anne  to  an  unreported judgment  of Justice Karnik  in Criminal  Revision Application No. 58 of 2004 Godrej & Boyca Mfg. Co. Ltd. v. Sridhar Jagannath Neurkar dated 6.7.2004. The  question involved in that case was whether  during the  pendency  of  a  suit filed by  the  landlord  for eviction  of tenant under the provisions of The  Bombay Rents  Hotel and Lodging House Rates Control Act, 1947 i.e.   Bombay Rent Act, the landlord can file a  second suit for eviction under the general law i.e.  under the Transfer  of  Property  Act against the tenant  who  is ceased  to  have  protection of  The  Maharashtra Rent Control  Act, 1999, Justice Karnik held that cause  of action for both the said suits was different and therefore there was no bar in filing the second suit. It was tried to be urged by the Advocate for the appellants and Mr. Sanglikar that this judgment of Justice Karnik was firstly in Revision and second it had taken into consideration judgment of Justice Chandrachud dated 18.1.2002 in Dilip Prabhakar Dingorkar v. Hindustan Petroleum Corporation ltd. (C.R.A. No. 1191 of 2001) and it was against the order of stay. Therefore, judgment of Justice Chandrachud was on an interlocutory stage and those findings are not binding. I do not find any merit in this contention. Both Justice Chandrachud and Justice Karnik has taken the same view that second suit on separate and different cause of action is maintainable and that same view has to be followed. I also hold that the second suit is on the different cause . of action.\n<\/p>\n
30. It  is  pertinent  to  note that  though  both  Mr. Siodia  and Mr.  Sanglikar repeatedly urged that  after service   of   the  first   notice  by  the   landlord, relationship  of  landlord and tenant came to  an  end, nowhere  defendant No.  1 or defendant No. 2 has claimed adverse possession and not at all claiming title on the basis  of the adverse possession.  Therefore, there  is no  denial  of  title by any of these  persons. I am pointing  out  only as a circumstance borne out by  the record.\n<\/p>\n
31.  Mr.    Siodia  contended  that   any   action   for ejectment, the plaintiff can recover possession only on the  strength  of his title and not by weakness of  the case  of the defendant.  This contention is made on the basis  of AIR (29)1942 Privy Council 64 Lala Hem Chand v. Lala Pearsy Lal and Ors. In that case the trustee  had  claimed adverse possession and then the owner  had brought his suit and further in the  instant case the plaintiff has succeeded on the strength of his own  case.   Both the courts have held in  his  favour. Therefore  no  question  of  taking  advantage  of  the weakness of the defendant’s case.\n<\/p>\n
32.  For all the reasons, the appeal is required to be dismissed. In the result, I pass the following order:\n<\/p>\n
ORDER<\/p>\n
Second Appeal No. 1281 of 2004 is dismissed with costs as not maintainable.\n<\/p>\n
Second Appeal No. 615 of 2004 is dismissed with costs proportionately.\n<\/p>\n
After this order was pronounced, counsels for the appellant in both the appeals, prayed for staying the operation of this order or for continuation of the stay earlier  granted  for a period of three months  because the Supreme Court is going to open on 17.7.2005.\n<\/p>\n
Looking to the facts and circumstances, the operation of the order is stayed upto 25.7.2005 on condition that both the appellants either jointly or individually pay to the respective owners. Rs.  5, 000\/- per month towards compensation from the date of filing of the Appeal i.e. Appeal No. 615 of 2004 till 25.7.2005. All the arrears shall be paid within one month from today, otherwise the stay will stand vacated automatically.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Hindustan Petroleum Corporation … vs Dilip Prabhakar Dingorkar And … on 6 May, 2005 Equivalent citations: 2006 (3) MhLj 488 Author: D Deshpande Bench: D Deshpande JUDGMENT D.G. Deshpande, J. 1. Heard Mr. Sanglikar for the Appellants in Second Appeal No. 1281 of 2004 and for Respondent No. 2 in Second Appeal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-177879","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nHindustan Petroleum Corporation ... vs Dilip Prabhakar Dingorkar And ... on 6 May, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hindustan-petroleum-corporation-vs-dilip-prabhakar-dingorkar-and-on-6-may-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hindustan Petroleum Corporation ... vs Dilip Prabhakar Dingorkar And ... on 6 May, 2005 - 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