1 SECOND APPEAL No153.1994.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.153 OF 1994
Alka W/o Jagannath Khairnar,
Age. 41 years, Occu. Household,
R/o. Vita, Tq. Kannad, Dist. Aurangabad,
presently residing at Samarth Nagar,
Kannad, Dist. Aurangabad. ...APPELLANT
(Orig. Plaintiff)
Versus
1. Devilal S/o Ramlal Jaiswal (Died)
Deceased through legal representatives
1(a) Traymbak S/o. Devilal Jayaswal (Son)
Age. 45 years, Occu. Trader,
R/o. Samarathnagar, At Post Kannad,
Dist. Aurangabad.
1(b) Rajendra S/o Devilal Jayaswal (Son)
Age. 35 years, Occu. Trader,
R/o. Snehnagar, House of Shri. Bhalerao,
At Post Kannad, Dist. Aurangabad.
1(c) Ramu S/o Devilal Jayaswal,
Age. 30 years, Occu. Trader,
R/o. Samarathnagar, At Post Kannad,
Dist. Aurangabad.
1(d) Shilabai W/o Devilal Jayaswal (Wife)
Age. 65 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad. (Deleted).
1(e) Mrs. Sharda Jayaswal (Daughter)
Age. 30 years, Occu.Household work,
R/o. Panvadod, Tal. Sillod,
Dist. Aurangabad.
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1(f) Lakshmi D/o. Devilal Jayaswal (Daughter)
Age. 42 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad.
1(g) Koku (Kokila) D/o Devilal Jayaswal (Daughter)
Age. 34 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad.
2. Kachrulal S/o Chhbulal Jaiswal,
Age. 49 years, Occu. Trader,
R/o. Samarth Nagar, Kannad,
Dist. Aurangabad. ...Respondents
(Orig. Defendants)
...
Mr P.R Patil Advocate for appellant.
Respondents - served absent.
...
CORAM : V.K. JADHAV, JJ.
...
Reserved on : May 3, 2017 Pronounced on : June 5, 2017 ...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order passed by the Extra Joint District Judge, Aurangabad, dated 4.12.1993 in Regular Civil Appeal No.325/1987, the original plaintiff has preferred this second appeal.
2. Brief facts, giving rise to this second appeal, are as follows :-
a] One Sandulal s/o Mohanlal was the owner of the
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land Survey No.6, admeasuring 3 Acres 24 Gunthas situated within the municipal limits of Kannad. On 17.11.1962, said Sandulal had obtained permission for converting the said land into non-agriculture land and accordingly converted the said land into plots and sold it to the various persons. In the year 1969, one Ratnaprabhabai w/o Bhagwantrao Ghadage had purchased the plot measuring East-West 45 Feet and South-North 30 Feet from the said Sandulal for a valuable consideration of Rs.500/- and obtained possession of the plot, however, registered sale deed of the said plot came to be executed in her favour by vendor Sandulal on 12.7.1971. It is further case of the appellant-plaintiff that said Ratnaprabhabai had sold the said plot to the appellant-plaintiff under registered sale deed dated 21.6.1973 for a valuable consideration of Rs.1,000/- and possession of the said plot was delivered on the day of execution of the sale deed. Thus, the appellant-plaintiff remained in possession of the said plot since the date of execution of the sale deed till 15.7.1979. It is further case of the appellant-plaintiff that towards southern side of the suit plot, Municipality ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 4 SECOND APPEAL No153.1994.odt Kannad has constructed a new road East-West in direction and as such the plot of respondent-defendant no.1 situated towards southern side of the suit plot came to be acquired for construction of the said road and as such, no such plot belonging to the respondent- defendant no.1 remained in existence. However, the respondent-defendants by taking advantage of the fact that the appellant-plaintiff is a woman, made encroachment on the suit plot and further started tying the cattle by constructing a temporary cattle-shed in the suit plot on 15.7.1979. The appellant-plaintiff has therefore, constrained to institute a RCS No.97/1979 for removal of the encroachment as well as for recovery of the possession of the suit plot.
b] Respondents-original defendants strongly resisted the said suit by filing written statement at Exh.14. The respondents-defendants have denied the ownership and possession of the said Ratnaprabha Gadge over the suit plot and also denied the sale deed dated 12.7.1971 executed in favour of said Ratnaprabha by Sandulal. According to the respondents-defendants, said Sandulal ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 5 SECOND APPEAL No153.1994.odt Jaiswal had sold the plot measuring 45 x 30 feet for a valuable consideration of Rs.700/- under the registered sale deed dated 9.8.1967 in favour of the respondent- defendant no.1 and there are lanes towards East-West and southern side of the said plot and a plot of vendor Sandulal towards northern side which he had subsequently sold to one Shyamrao Kale. According to the respondents-defendants, respondent-defendant no.1 is in possession of the said plot as a owner thereof from the date of execution of the said sale deed and he is enjoying said property by making temporary construction over it. According to the respondents- defendants, towards southern side of the said plot, Municipality Kannad had constructed 40 feet of road and only 8 feet space of the aforesaid plot belonging to the respondents-defendants came to be acquired for the said road. The sale deed dated 12.7.1971 allegedly executed in favour of Ratnaprabhabai Ghadge is bogus and false sale deed. Same was executed in collusion with Sandulal Mohanlal. The appellant-plaintiff was not in possession of any property as an owner. It has been contended that husband of appellant-plaintiff is a ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 6 SECOND APPEAL No153.1994.odt Government Servant and he tried to dispossess the respondent-defendant no.1 from the said plot. Respondent-defendant no.1 is in possession of the said plot since the date of execution of the said sale deed and respondent-defendant no.1 has made construction of the cattle-shed over the said plot and using the said cattle-shed for tying the cattles. According to respondents-defendants the suit is false and same is liable to be dismissed.
c] On the basis of the rival pleadings of the parties to the suit, the learned Judge of the Trial Court has framed issues and both the parties to the suit lead oral and documentary evidence in support of their rival contentions.
d] The learned Jt. Civil Judge, J.D., Kannad by its judgment and decree dated 11.11.1987 decreed the suit of the appellant-plaintiff and thereby permitted the appellant-plaintiff to recover the possession of the suit plot and further directed the defendants to remove all construction over the suit plot within a period of one ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 7 SECOND APPEAL No153.1994.odt month and hand over the vacant possession of the suit plot to the appellant-plaintiff.
e] Being aggrieved by the same, the respondent- original defendants have preferred Regular Civil Appeal No.325/1987 and the learned extra Jt. District Judge, Aurangabad by impugned judgment and order dated 29.11.1993/4.12.1993 allowed the appeal and thereby set side the judgment and decree passed by the Trial Court. The learned Extra Jt. District Judge had dismissed the suit. Hence, this second appeal.
3. The appellant-original plaintiff claims that, ground nos.A to G of the appeal memo involves substantial question of law. The same are as follows :-
A. Whether learned appellate Court was wrong in observing that the appellant has not produced certified copy of sale deed of Shamrao Kale on record. Whether non- consideration of this material document has resulted into miscarriage of justice?
B. Whether the learned appellate Court was wrong in refusing to look into the original documents produced by the Municipal Council showing that complete plot owned by respondent no.1- Devilal is acquired for the purposes of road ?::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 :::
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C. Whether certified copy of public records like
records maintained by Municipal Council in its due course of business, can be discarded on the ground that the person producing it may not have personal knowledge of these documents ?
D. Whether certified copies of public records are admissible in evidence unless proved otherwise ?
E. Whether the learned appellate Court has failed to frame proper points for its determination ?
F. Whether the learned appellate Court's misinterpretation regarding boundaries of the plot has resulted ultimately into miscarriage of justice ?
G. Whether the Court is permitted to invent a new case for the parties and decide a case on the basis of hypothesis and a case which is not made out in the pleadings itself ?
4. The learned counsel for the appellant submits that respondent-defendant No.1 Devilal had purchased the plot admeasuring 45x30 feet and as per the contention of respondent-defendant no.1 Devilal, towards northern side of his plot, there is a plot of Shyamrao Kale. Said Shyamrao Kale had purchased the plot from Sandulal under the registered sale deed dated 14.10.1967. The lower Appellate Court has incorrectly observed that the ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 9 SECOND APPEAL No153.1994.odt sale deed executed in favour of Shyamrao Kale is not produced on record. However, the said sale deed was produced on record. As per four boundaries of the said plot purchased by Shamrao Kale, towards southern side, the land sold to Bhagwantrao Talathi is shown. Admittedly, Ratnaprabhabai (Vendor of the appellant- plaintiff) is wife of said Bhagwantrao Talathi. The appellant-plaintiff has proved registered sale deed exh.48 dated 12.7.1971 executed in favour of Ratnaprabhabai by the original owner Sandulal. Respondent specifically mentioned in the said sale deed exh.48 that suit plot was sold two years back and possession of the suit plot was handed over to Ratnaprabhabai at that time, though sale deed came to be executed on 12.7.1971. The learned counsel for the appellant-original plaintiff submits that in the notice published by the Chief Officer, Municipal Council, Kannad in respect of an application submitted by the said Shyamrao Kale seeking permission for construction over the portion of his plot, it has been specifically mentioned that towards southern side of the said plot, plot of Bhagwantrao Ghadge is situated. The learned ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 10 SECOND APPEAL No153.1994.odt Judge of the lower Appellate Court has considered the date of sale deed executed in favour of Ratnaprabhabai Exh.48 and ignored the recitals of the said sale deed that said plot was sold to Ratnaprabhabai (wife of Bhagwantrao Ghadge) two years prior to the execution of the sale deed. Consequently, the lower appellate Court has erroneously observed that Municipal Council or Shyamrao Kale could have not imagined on 12.4.1968 that in the year 1969, Bhagwantrao Ghadge was going to enter into an agreement of sale in the name of his wife with original owner Sandulal and sale deed regarding same would be executed in the year 1971.
5. The learned counsel submits that, even nobody had imagined that there would be a dispute about the boundaries in the year 1979. Respondent-defendant no.1 Devilal if had any grievance, he would have immediately objected the description of the boundaries in respect of the construction permission sought by said Shyamrao Kale. In the year 1978, Municipal Council Kannad had constructed a 40 feet wide road and as such, the plot owned by the appellant-original plaintiff, ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 11 SECOND APPEAL No153.1994.odt respondent-defendant Devilal and others came to be affected. Learned counsel submits that respondent- defendant no.1 Devilal's plot came to be fully acquired for the purpose of the road. The Lower Appellate Court has erroneously given reference to the provisions of the Land Acquisition Act and observed that the record about the acquisition of the land for the purpose of the construction of the road in terms of the provisions of section 4,6 etc of the Land Acquisition Act ought to have been produced before the Trial Court. Learned counsel submits that in terms of the provisions of section 126 (2) of the Maharashtra Regional Town Planning Act, 1966, it is permissible to acquire the land by private negotiations. The same is also evident from the documents produced by the appellant-original plaintiff alongwith civil application No.5406/1994 before this Court in the Second Appeal. This Court while granting Rule directed that, said civil application be heard alongwith the second appeal. Thus, the observations made by the lower appellate Court are unwarranted and perverse. On perusal of certified copies of the documents submitted alongwith civil application ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 12 SECOND APPEAL No153.1994.odt No.5406/1994, it is clear that the plot of respondent- defendant no.1 Devilal was entirely acquired for the purpose of 40 feet wide road. Respondents-original defendants by taking undue advantage of the fact that the appellant-original plaintiff was residing at the village and not at Kannad, encroached upon the suit plot and further raised a false plea that sale deed in favour of the appellant-original plaintiff is bogus document. It is pertinent to note that, respondent-defendants have not made any counter claim seeking declaration to that extent. The learned Judge of the Trial Court has rightly decreed the suit, however, the lower appellate Court invented a new case for the parties and decided the appeal on the basis of hypothesis and a case which is not made out in the pleadings. Thus, the impugned judgment and order passed by the Lower Appellate Court is liable to be quashed and set aside by confirming the judgment and decree passed by the trial Court.
6. Though respondents duly served, none appears for them.
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7. According to the appellant-original plaintiff, one Ratnaprabhabai had purchased the suit plot from the original owner Sandulal in the year 1969, however, registered sale deed in respect of the suit plot came to be executed on 12.7.1971. The sale deed executed in favour of Ratnaprabhabai by the original owner Sandulal is duly proved by the appellant-plaintiff and the same is marked at Exh.48. It is the contention of the appellant-plaintiff that, said Ratnaprabhabai sold the suit plot in her favour under the registered sale deed for a valuable consideration on 21.6.1973. The appellant-plaintiff has duly proved the sale deed executed by Ratnaprabhabai in her favour and the same is marked at Exh.49. Undisputedly, said Sandulal was the original owner of the suit plot.
8. It is the contention of the respondents-defendants that, on 9.8.1967 respondent-defendant no.1 had purchased two plots from the said Sandulal. Respondent-defendant has duly proved said sale deeds those are marked at Exh.102 and 103 respectively. So far as property sold under registered sale deed exh.103 ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 14 SECOND APPEAL No153.1994.odt is concerned, the same is not in dispute. Sale deed Exh.102 is in respect of the plot admeasuring 45 x 30 feet.
On careful perusal of the sale deed Exh.48 and Exh.102, it appears that, original owner Sandulal sold the plots to the appellant-plaintiff and respondent- defendant no.1 as per the boundaries as detailed in the said respective sale deeds. Boundaries as detailed in the sale deed Exh.48 and 102 respectively are reproduced herein below :-
Sale deed Exh.48 - Executed by original owner Sandulal in favour of Ratnaprabhabai (vendor of appellant-original plaintiff) East :- Lane West :- Lane South :-Plot of respondent-defendant No.1 Devilal. North :- Plot of Shri Shyamrao Kale.
Sale deed Exh.102:- Plot sold by the original owner Sandulal in favour of respondent-defendant No.1 Devilal.
East :- Lane
West :- Lane
South :- Lane
North :- Vendor's (Sandulal's) own land.
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It thus appears that, original owner Sandulal when sold the plot to respondent-defendant no.1 Devilal under the registered sale deed Exh.102 in the year 1967, towards northern side of the said plot, the remaining land of the vendor i.e. (Sandulal) has been mentioned. In the year 1971, when the original owner Sandulal sold the suit plot under the registered sale deed exh.48 in favour of Ratnaprabhabai, as per the boundaries shown in the sale instance exh.48, towards southern side plot of respondent-defendant no.1 Devilal is shown and towards northern side plot of Shyamrao Kale is shown. As per the boundaries shown in the sale deed Exh.102, it is clear that, to the southern side there is a lane/road and as such, abutting said land, plot of respondent- defendant no.1 Devilal is situated. The respondent- defendant no.1 Devilal in paragraph no.4 of his cross- examination also admitted that there was no any plot in between his plot and lane/road which is to the south of the said plot. He has also admitted in the same paragraph that, presently road has been prepared on the said old lane. In the sale deed exh.102, towards northern side, land of vendor Sandulal is shown and as ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 16 SECOND APPEAL No153.1994.odt per the boundaries shown in the sale deed Exh.48, towards southern side plot of respondent-defendant no.1 Devilal is shown and towards northern side plot of Shyamrao Kale is shown. Undisputedly, vendor Sandulal sold the plot to said Shyamrao Kale. Respondent-defendant no.1 Devilal in paragraph no.5 of his cross-examination has also admitted that to the north of the suit plot, there is a constructed house of Shyamrao Kale which is built according to the permission granted by the Municipal Council.
9. Sale deed executed in favour of Shyamrao Kale by the original owner Sandulal was placed on record before the trial court alongwith list Exh.38. None of the parties disputed said transaction and as such, trial court ought to have exhibited said sale deed. The lower appellate court on the other hand has erroneously observed that sale deed executed in favour of Shyamrao Kale was not placed on record.
10. The appellant-original plaintiff has examined witness No.5 Gautam Jain, who is in service of ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 17 SECOND APPEAL No153.1994.odt Municipality, Kannad since 1969. He has deposed before the Court as per the record of the Municipality Kannad brought by him before the Court. The document pertaining to permission for construction of the house granted by the Municipality Kannad in favour of Shyamrao Kale for construction of house on his plot and also the copy of proclamation inviting objections, came to be duly proved through this witness and those are marked at Exh.86 and 85 respectively. In the proclamation exh.85, boundaries have been shown and towards the southern side of the plot of Shyamrao Kale, plot of Bhagwantrao is shown. Bhagwantrao is the husband of said Ratnaprabhabai and as per exh.48 sale deed came to be executed in favour of Ratnaprabhabai i.e. wife of Bhagwantrao. Even, on perusal of the sale deed executed in favour of Shyamrao produced on record alongwith list of the document exh.38, it appears that towards southern side of the plot sold to Shyamrao Kale, plot of Bhagwantrao is shown. The lower appellate Court has not considered all these documents for the reason that original owner Sandulal sold the suit plot to Ratnaprabhabai in the year 1971 and, as such, there is ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 18 SECOND APPEAL No153.1994.odt no question of mentioning the plot of Bhagwantrao (suit plot) in the boundaries as shown in the sale deed executed in favour of Shyamrao Kale in the year 1967 and similarly in the said proclamation published by the Municipality Kannad in the year 1968. On careful perusal of the contents of the sale deed Exh.48, it is clear that though the sale deed was executed in the year 1971 in favour of Ratnaprabhabai, possession of the plot was already handed over prior to two years to Ratnaprabhabai by accepting consideration. The exact date of delivery of possession is not mentioned in the sale deed exh.48, however, inference could be drawn that said plot since sold to Bhagwantrao, who happened to be the husband of Ratnaprabhabai, in the sale deed executed in favour of Shyamrao Kale as well as in the proclamation issued by the Municipality Kannad, towards southern side of the plot of Shyamrao Kale, suit plot was shown.
11. The appellant-original plaintiff has examined employee of Municipality Kannad Gautam Jain. He has deposed that Municipality Kannad had constructed a ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 19 SECOND APPEAL No153.1994.odt road which joins Samaj Mandir and new Bus stand and towards north side of the said road, there is a plot of the appellant-original plaintiff. He has further deposed that Government has sanctioned compensation to those persons who are affected by the construction of the said road. He has brought with him original file in that respect. In the said file, there is list of the persons to whom compensation was to be paid. Said list is produced before the Court and marked at Exh.88. On perusal of the said list Exh.88, it appears that, entire plot of respondent-defendant no.1 Devilal came to be acquired for the purpose of construction of the said road and so far as suit plot is concerned, the only portion measuring 8 feet from the suit plot came to be acquired for construction of the said road.
12. The appellant-original plaintiff has also filed civil application bearing no.5406/1994 for production of the additional evidence. By order dated 25.3.1996 this Court has granted Rule and further directed that civil application be heard alongwith second appeal. Certified copies of the public documents are produced on record ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 20 SECOND APPEAL No153.1994.odt alongwith said civil application. The Chief Officer, Nagar Parishad, Kannad has issued a certificate dated 28.9.1994 mentioning therein that entire plot of the respondent-defendant no.1 Devilal measuring 45x30 feet total admeasuring 1350 square feet came to be acquired for the construction of the road 40feet in width in the direction of Samaj Mandir to S.T.Sand and the compensation amount of Rs.8,154.90/- also sanctioned for acquisition of the said plot. Similarly, map of the road showing the plot portion affected is also placed on record alongwith said civil application. At serial No.4 of this map, name of respondent-defendant no.1 Devilal is clearly shown and his whole plot admeasuring 30x45 feet shown to have been acquired for the purpose of the development of the road. Said map is maintained by the Municipality Kannad and it is also prepared by the Architecture of the Municipal Council. It is also signed by the Chief Officer of the Municipal Council. It is a public document. Even though, the appellant-plaintiff has examined witness Mr. Gautam Jain, and though this witness has brought entire file of the Municipal Council, Kannad before the Court, the aforesaid ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 21 SECOND APPEAL No153.1994.odt documents were not produced before the Court. No doubt, this has been resulted into miscarriage of justice. All these documents are the public documents and within the knowledge of the respondents. These documents are material documents in determination of the issues raised by the parties. In view of this, I accept the documents submitted alongwith aforesaid civil application as an additional evidence before this Court for the just disposal of the appeal.
13. In view of the above, it is clear that towards northern side of the plot of respondent-defendant no.1 Devilal, suit plot is situated and the plot of Shyamrao Kale is situated towards northern side of the suit plot. There is no plot in between the southern side lane and the plot possessed by respondent-defendant no.1 Devilal prior to the construction of the said road by the Municipality Kannad. The learned Judge of the Trial Court has, therefore, rightly decreed the suit of the plaintiff in terms of the prayer clauses with the specific observations that the plot owned and possessed by respondent-defendant no.1 Devilal came to be acquired ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 ::: 22 SECOND APPEAL No153.1994.odt by the Municipality Kannad for the construction of the road and said plot was other than the suit plot. The lower appellate Court has however recorded the finding which is contrary to the record. The Lower Appellate Court has erroneously held that the plot sold to Ratnaprabhabai and by Ratnaprabhabai to the appellant-original plaintiff is not in existence and as such, there is no question of encroachment made by the respondent-original defendants on the plot as alleged in the plaint. Respondent-defendant no.1 Devilal has simply denied the execution of the sale deed of the suit plot in favour of Ratnaprabhabai by the original owner Sandulal. It is not the case of respondent-defendant no.1 that plot owned by him, has been sold by the original owner Sandulal to Ratnaprabhabai. The Lower Appellate Court has invented a new case for the parties which is not made out in the pleadings. Thus, the judgment and order passed by the Lower Appellate Court suffers from perversity and requires interference. The impugned judgment is thus liable to be quashed and set aside. The learned judge of the trial court has rightly decreed the suit. Hence, following order. ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:02:19 :::
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O R D E R
1. Appeal is hereby allowed with costs.
2. The judgment and order passed by the Extra Joint District Judge, Aurangabad, dated 4.12.1993 in Regular Civil Appeal No.325/1987 is hereby quashed and set aside.
3. The judgment and decree passed by the Jt.
Civil Judge J.D., Kannad dated 11.11.1987 in Regular Civil Suit No.97/1979 stands confirmed.
4. Appeal is accordingly disposed of.
( V.K. JADHAV, J. ) ...
aaa/-
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