1
sa252.00.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.252 of 2000
1. Narayan s/o Jugalkishor Gurkha,
Aged about 30 years,
Occupation - Business.
2. Jagdish s/o Jugalkishor Gurkha,
Aged about 28 years,
Occupation - Business.
Both residents of Gorakshan Plots,
Akola. ... Appellants/
Ori.Plffs.
Versus
Ramjiyawan s/o Shiobalak Pande,
Aged about 75 years,
Occupation - Business,
R/o Kailash Tekdi,
Sindhi Camp, Akola. ... Respondent/
Ori. Deft.
Shri S.C. Mehadia, Advocate for Appellants.
Shri U.N. Vyas, Advocate for Respondent.
Coram : R.K. Deshpande, J.
Dated : 15th December, 2016 Oral Judgment :
1. The Trial Court passed a decree in Regular Civil Suit No.105 ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 2 sa252.00.odt of 1996 on 28-1-2000. The respondent-defendant was permanently restrained from disturbing the possession of the appellant-plaintiffs over the suit plot, admeasuring 720 sq.ft., without following due process of law. In Regular Civil Appeal No.55 of 2000, the lower Appellate Court has set aside the decree passed by the Trial Court and dismissed the suit filed by the plaintiffs on 25-9-2000. Hence, the original plaintiffs are before this Court in this second appeal.
2. The suit in question was a simpliciter suit for permanent injunction restraining the defendant from disturbing the possession of the plaintiffs over the suit plot, admeasuring 720 sq.ft. The Trial Court records the finding that the plaintiffs have established their ownership and possession over Nazul Plot No.12/1, area 2,400 sq.ft., by the registered sale-deed dated 6-11-1995. It also records the finding that the defendant tried to obstruct the possession of the plaintiffs, and hence a decree for permanent injunction has been passed.
3. The lower Appellate Court records the finding that the plaintiffs have failed to establish that they are in possession of the suit property referable to a valid title and consequently set aside the decree ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 3 sa252.00.odt for permanent injunction passed by the Trial Court. It has further recorded the finding that the sale certificate dated 6-5-1987 issued by the Chief Officer, Municipal Council, Akola, under Section 156(2) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 was not exempted from registration and it was required to be compulsorily registered under Section 17(2)(xii) of the Registration Act, 1908.
4. On 25-7-2001, this Court passed an order as under :
" Heard Mr. Mehadia, learned advocate for the appellant and Mr. Dharmadhikari, learned advocate for respondent.
In view of the substantial question of law carved out in ground No. I, II, III, apart from other enumerated therein, admit.
Considering the controversy in issue and the subject matter of the suit as well as the First Appeal, it will be proper to direct the parties to the second appeal to maintain status-quo as on today till the disposal of the second appeal.
Mr. Dharmadhikari, waives service for respondent."
::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 4sa252.00.odt The matter was admitted on the substantial questions of law on the ground Nos.I, II and III in the memo of appeal, and the parties were directed to maintain status quo during the pendency of this second appeal. The said ground Nos.I, II and III are reproduced below :
"I. Whether the sale certificate issued by the Chief Officer of the Municipal Council u/s 156(2) of the Maharashtra Municipalities Act, is not exempted from registration as per the provisions of Sec.17(2)(xii) of the Registration Act, 1908?"
"II. Whether the Chief Officer of the Municipal Council is a Civil Officer or not as contemplated u/s 17(2)(xii) of the Registration Act, 1908?"
"III. Whether a challenge can be raised to the legality of the sale certificate issued by the Municipal Council by way of defence, when the limitation for filing a civil suit challenging the legality of the said sale certificate has already expired long back?"
5. After hearing the learned counsels appearing for the parties for quite some time, on 29-11-2016, this Court passed an order as under :
::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 5sa252.00.odt " Heard the learned counsels appearing for the parties.
After going through the judgments delivered by both the Courts below, it seems that the question of title of the plaintiffs could not have been into in the absence of there being any counter-claim by the defendant. The claim of the plaintiffs was that they derived the title and possession over the suit property from one Motilal Kanojiya, who became the owner of 960 sq.ft. of land on the basis of the registered sale-deed dated 26-5-1986, and the sale certificate issued on 6-5-1987 in respect of 1,440 sq.ft. of land by the Chief Officer, Municipal Council, Akola. The dispute was apparently in respect of possession over the suit property.
The substantial question of law framed at serial No.(VI) in the memo of appeal is reproduced below :
"(VI) When under Section 156(2) of the Maharashtra Municipalities Act, the sale certificate cannot be issued without delivery of the possession of the property auctioned to the auction purchaser, whether a ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 6 sa252.00.odt presumption can be drawn under Section 114 of the Evidence Act, that the official acts must have been done in accordance with the provisions of law and the possession must have been delivered before delivery of the sale certificate?"
The respondent is put on notice in respect of the aforesaid substantial question of law.
Put up this matter on 2-12-2016, as part-heard."
This Court had held that the question of validity of the title of the plaintiffs over the suit property could not have been gone into by the lower Appellate Court in the absence of there being any counter-claim of title by the defendant. The only question, according to this Court, was of the possession of the suit property.
6. The suit property consisting of 2,400 sq.ft. was owned by three brothers - (i) Jokhan, (ii) Ramjiyawan (defendant),
(iii) Ramajore. In Regular Civil Suit No.449 of 1981 filed by ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 7 sa252.00.odt Jokhan for partition and separate possession, a decree was passed in which 960 sq.ft. of land from western side was allotted to Jokhan in the year 1983. After the death of Jokhan, his legal heirs sold this land on 28-10-1983 to one Mohan Pali, who subsequently sold it on 26-5-1986 to one Motilal Kanojiya.
Motilal Konojiya thus became the owner of 960 sq.ft. of land, which had fallen to the share of Jokhan by the registered sale-deed.
7. So far as the balance land of 1,440 sq.ft. owned by Ramjiyawan and Ramjore was concerned, it was attached in the auction conducted by the Municipal Council, Akola, for realizing the arrears of taxes. One Motilal Kanojiya was the highest bidder, in whose favour the sale certificate dated 6-5-1987 was executed by the Chief Officer of Municipal Council, Akola. Thus, Motilal Kanojiya also became the owner of the balance land of 1,440 sq.ft. along with 960 sq.ft. of land owned by Jokhan.
8. On 24-4-1991, Motilal Kanojiya sold the entire land of ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 8 sa252.00.odt 2,400 sq.ft to Jugalkishore Rathi and Shantilal Rathi by two separate registered sale-deeds dated 23-4-1991 of 1,200 sq.ft. of land each. The plaintiffs purchased the entire 2,400 sq.ft. of land from the said Rathi brothers by two separate registered sale-deeds dated 6-11-1995. The plaintiffs claimed that they became the owners of the suit property and were also put in possession of it, and on the basis of it, they filed a suit for permanent injunction restraining the defendant from obstructing their possession over the suit property.
9. The validity of the sale certificate dated 6-5-1987 was challenged by Ramjiyawan by filing a separate suit, viz. Regular Civil Suit No.118 of 1997, which was dismissed in default.
However, Ramjiyawan resisted the present suit filed by the plaintiffs on the ground that he was in continuous possession of the suit property, irrespective of all the transactions, and the plaintiffs were, therefore, not entitled to a relief of permanent injunction unless they prove their valid title over the suit property. The defendant No.1-Ramjiyawan neither did claim ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 9 sa252.00.odt ownership nor could claim it, as the property was sold in auction by the Municipal Council to Motilalji Kanojiya on 6-5-1987. In such circumstances, the lower Appellate Court could not have gone into the question of validity of the title of the plaintiffs over the suit property, and hence the finding that the sale certificate was inadmissible in evidence for want of registration under Section 17(2)(xii) of the Registration Act cannot be sustained. The substantial question of law framed on 25-7-2001 are answered accordingly.
10. On the question of possession, the lower Appellate Court holds that since the plaintiffs have failed to establish their title over the suit property, the presumption that the title follows the possession, would not be available. The approach adopted by the lower Appellate Court was totally misdirected. The defendant himself had filed M.J.C. No.58 of 1992 for passing a final decree in Regular Civil Suit No.564 of 1985 against his brother for partition, in which it was stated in para 5 that the structure on the plot in question was destroyed and it was an open plot. This ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 10 sa252.00.odt was the statement made on 23-3-1992. The Court Commissioner appointed in the said proceedings visited the spot and submitted his report on 3-1-1995 stating therein that there was no construction on the plot. The said M.J.C. Was dismissed on 28-8-1995 on the ground that Ramjiyawan lost his title to the property on the basis of the sale certificate dated 6-5-1987.
Apart from this, there is also evidence on record, which is considered by the Trial Court, suggesting that the plaintiffs have established their possession over the suit property. There was no basis for the lower Appellate Court to go behind the title of the plaintiffs without considering the factual aspect of possession.
The findings recorded by the lower Appellate Court are perverse and it cannot be said that the plaintiffs were not entitled to the benefit of the principle that their title follows the possession and, therefore, the presumption under Section 114 of the Evidence Act was required to be drawn. The substantial question of law framed on 29-11-2016 is answered accordingly.
11. In the suit, the appeal is allowed. The judgment and ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 ::: 11 sa252.00.odt order dated 25-9-2000 passed by the lower Appellate Court in Regular Civil Appeal No.55 of 2000, is hereby quashed and set aside. The decree passed by the Trial Court is restored. No order as to costs.
12. At the request of the learned counsel for the respondent-
defendant, the order of status quo granted by this Court shall continue to operate for a period of six weeks from today, at the end of which, it shall stand vacated.
JUDGE.
Lanjewar ::: Uploaded on - 17/12/2016 ::: Downloaded on - 18/12/2016 00:50:38 :::