Sunday, 19 August 2018

Whether a person can acquire easementary right over property which is owned by him?

 With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.

10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.



11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar
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When application filed by judgment debtor for setting aside auction sale is not maintainable?

 We notice, in this case, there was no reference at all to the provisions of Order 21 Rule 89 in the application filed by the Appellant on 1.12.2010, be that it may, even then the Appellant had not complied with the mandatory requirements of depositing the amount. Clause (a) of Sub-rule (1) of Rule 89 of Order 21 requires the applicant to deposit in Court 5 per cent of the purchase money for payment to the auction purchaser. Deposit of the requisite amount in the Court is a condition precedent or a sine qua non to an application for setting aside the execution of sale and such a amount must be paid within a period specified in the rule and if the deposit is made after the time limit, the application must be dismissed. The deposit made under Rule 89 of Order 21 Code of Civil Procedure should be unconditional and unqualified and the decree holder or the auction purchaser should be able to get the amount at once.

20. We have already indicated that the rule is in the nature of a concession shown to the judgment debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the entire amount specified in rub-rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. We have already found that the Appellant-judgment debtor did not pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8652 of 2012 (Arising out of SLP (Civil) No. 34402 of 2011)

Decided On: 03.12.2012

Ram Karan Gupta Vs. J.S. Exim Ltd. and Ors.

Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Citation: AIR 2013 SC 24

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Whether person aggrieved by breach of contract is required to prove that actual loss or damage was suffered by him?

 It can thus be seen that, in every case of breach of a contract, the person aggrieved by the breach, is not required to prove the actual loss or damage suffered by him, before he can claim a decree and the Court is competent to award reasonable compensation in case of breach, even if, no actual damage is "proved", to have been suffered in consequence of the breach of contract. But the expression "whether or not actual damage or loss is proved to have been caused thereby", as appearing in the said section is intended to cover different types of contracts, which come before the Courts. In case of some contracts, it may be impossible for the Courts to asses compensation, arising from such breach. In such cases, the section dispenses with the proof of such loss or damage and the Court can grant the compensation in terms of the liquidated damages, if the sum named by the parties is regarded as a genuine pre-estimate of such loss. 
IN THE HIGH COURT OF BOMBAY AT GOA

Appeal Under Arbitration Act No. 8 of 2016

Decided On: 10.04.2018

Titagarh Wagons Limited Vs. Chowgule and Company Private Limited
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Whether District Judge exercises appellate jurisdiction over award of arbitral tribunal?

The Hon'ble Supreme Court in the case of J.G. Engineers Private Limited Vs. Union of India and Another, MANU/SC/0527/2011 : (2011) 5 SCC 758 has held that the District Judge, exercising powers under Section 34 of the Act, exercises supervisory and not appellate jurisdiction, over the award of the Arbitral Tribunal.

IN THE HIGH COURT OF BOMBAY AT GOA

Appeal Under Arbitration Act No. 8 of 2016

Decided On: 10.04.2018

Titagarh Wagons Limited Vs. Chowgule and Company Private Limited

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