Gangaram Rambhau Zite And Ors. vs Chindhu Dagadu Tikone Since ...
2002 Latest Caselaw 88 Bom

ORDER

R.J. Kochar, J.

1. The appellants are the original defendants in the suit filed by the original plaintiff for declaration that the suit lane in the property was the property of the plaintiff and he sought permanent injunction against the defendants restraining them from disturbing the plaintiff's right to exclusively enjoy the possession of the said small lane adjoining his house. The suit filed by the plaintiff was dismissed by the learned Joint Civil Judge, Junior Division, Pune. The plaintiff was aggrieved by the said Judgment and Order of the learned Judge, and therefore, he filed a Civil Appeal before the Additional District Judge Pune. The Lower Appellate Court allowed the Appeal and set aside the judgment and decree passed by the Civil Judge, Junior Division, Pune and granted declaration that the appellant was the owner of the suit property and the defendants and their servants and agents were perpetually restrained from causing obstruction to the plaintiff's possession of the suit property. The original defendants have preferred the present second appeal against the impugned judgment and order of the Lower Appellate Court passed on 29-11-1989. The second appeal was admitted on 8-10-1990 with the order as follows :

"Substantial question of law arises in respect the sale deeds involved and relied upon as to whether they could be sufficient to hold title in favour of the vendor in these sale deeds."

2. I have heard both the learned Advocates for their parties. They have taken me through the entire proceedings including the oral and documentary evidence.

3. Both the parties would be referred hereinafter as the plaintiff and the defendants for the sake of convenience.

4. The dispute between the parties is only in respect of a small lane which is called as "BOL" in Marathi. It is a small parallel space between the two houses from one end to the other open on both the sides. According to the plaintiff he had purchased the suit house No. 264 under a Registered Sale Deed dated 22-10-1971 along with the small lane on the Western side of the house. It was the case of the plaintiff that he had purchased the house with the small lane from one Shri Dhage and Shri Dhage in turn purchased the said property under a Registered Sale Deed dated 5-6-1968 from one Shri Hirve. According to the plaintiff, under both the Sale Deeds the small lane was included in and was the pan and parcel of the property which was purchased by him. According to him, the main entrance of the house was on its Western side and that certain steps in front of the main entrance door were in the said small lane. It was pleaded by him that the defendants were not the owners of the said lane and yet they obstructed the peaceful possession of the said lane by the plaintiff without any justification. In

view of the obstruction created by the defendants the plaintiff approached the trial Court for the reliefs set out as above.

5. The defendants filed their written statement and contested the suit. It was pleaded by the defendants that the lane was not a part and parcel of the property of the plaintiff and that it was part and parcel of the property of the defendants. The defendants therefore challenged the statement of the plaintiff that he was the owner of the small lane. The defendants did not accept the legality and veracity of the Sale Deeds under which the plaintiff had claimed his title. The defendants further submitted that the said lane was in their possession since last 40/50 years, and that the plaintiff had no right of any nature over the small lane, called "Bol" by him, and therefore, they prayed for dismissal of the suit on the basis that the claim of the plaintiff was false.

6. It is clarified that the original plaintiff had died during the pendency of the second appeal and hence the appellants were brought on record as the legal heirs of the deceased plaintiff. During the pendency of the suit the original defendant had expired and his legal heirs were brought on record, the contest in this second appeal is between the legal heirs of the original parties.

7. On the basis of pleadings the learned trial Court has framed as many as nine issues and on the basis of evidence adduced before the learned Judge was pleased to dismiss the suit.

8. The plaintiff had examined before the trial Court himself and Shri Dhage, who was the vendor of the suit house to the plaintiff and the scribe of the sale deeds. The defendant did not enter into witness box and did not lead any evidence. It appears that from the evidence of Shri Dhage, the vendor of the house to the plaintiff, the trial Court concluded that he did not say that he was in possession of the entire property including the suit lane. The learned Judge therefore discarded the evidence of the plaintiff for want of corroboration that the vendor had sold the house including the suit lane. According to the trial Court the predecessor in title i.e. Shri Dhage did not have the possession of the small lane, and therefore, the plaintiff could not contend that he had purchased the property with the suit lane from Shri Dhage. As far as the documentary evidence in the form of two Sale Deeds is concerned the learned Judge has not given much weightage to the same on the ground that both were written by one and the same scribe, who had admitted that he had written in the Sale Deeds whatever was told to him by the Vendors on both the occasions and that he did not have personal knowledge about the measurements of the suit property and that he had not verified the particulars of the said lane at the time of writing of the Sale Deeds. The trial Court has also noted that the predecessor Vendor of Shri Dhage was Shri Hirve and he also had no documents in his possession to show that he had title to the said property including the lane sold by him to Shri Dhage. The learned Judge has expressed doubt about the title of Shri Hirve of the said property. In the circumstances the learned Judge held that Shri Hirve did not and could not pass on or confer better and perfect title of the said lane on Shri Dhage and therefore, Shri Dhage in turn could not transfer a better and perfect title to the plaintiff. The learned Judge has therefore held that the plaintiff had not proved his possession and title of the said lane. The trial Court has accepted and relied on the Certified copies of the Map of the two houses produced along with

Exhibit-44/2. In the said map the lane is shown as the property belonged to the defendants and no such lane is shown as the property held by the plaintiff or his predecessors in title. The learned Judge has heavily relied on the certified copies of the maps of the two houses and has come to a conclusion that the lane is shown adjoining the suit house of the defendant and not shown in the property held by the plaintiff or his predecessors in title. The trial Court has finally concluded that the plaintiff has failed to prove his case and that the defendant had proved that the plaintiff had no right of exclusive possession and occupancy of the said lane. Similarly the learned Judge has held that even the defendant had failed to prove that the said lane was in his exclusive possession and occupation as he had failed to adduce any evidence to prove that fact.

9. The Appellate Court has reversed the aforesaid judgment and findings of the trial Court in the First Appeal filed by the original plaintiff. The Lower Appellate Court has held in favour of the plaintiff on the basis of the Sale Deeds supported by the oral evidence adduced by the plaintiff. From the recitals in the sale deeds it appeared to the Lower Appellate Court that the western side boundary belonged to the plaintiff. He accepted the case of the plaintiff that in Exh. 41, a sale deed, the lane was included in the property bearing No. 264 sold to Shri Dhage by Shri Hirve including the lane and beyond that lane the house of the original defendant was situated. The learned Judge has also relied on the certified extract of the inquiry register of Chalata No. 104 C.T.S. No. 213 property bearing Chalata No. 104 i.e. bearing House Property No. 265A and 264 recorded in the name of Shri Dhage, C.T.S. No. 213 was allotted to the said property. In column 13 of the entry the enquiry officer had declared plaintiff's title to the aforesaid property on the basis of the sale deed. It was also recorded by the Appellate Court that the property was found in the actual possession of the plaintiff as described in the sale deed which was executed by Shri Dhage. Even the entries recorded in Column 13 the property bearing CTS No. 215 is shown as the ancestral property of the plaintiff. On the basis of the sale deeds and the entries in the inquiry register the Lower Appellate Court held in favour of the plaintiff that the lane was included in the house property of the plaintiff. The learned Lower Appellate Court has also relied on the fact that the defendant has not specifically claimed that he was an owner of the disputed lane and that he had merely denied the plaintiff's allegation that the plaintiff was the owner of the suit lane. On the basis of the aforesaid evidence the Lower Appellate Court has held that the plaintiff had proved his title over the suit property described in his plaint in paragraph one. The Lower Appellate Court held that the plaintiff had proved his title over the suit property on the basis of the two sale deeds and also possession and enjoyment over the suit property. According to the learned Judge the trial Court did not appreciate the evidence properly and had committed an error in holding that the plaintiff, had failed to prove his title over the suit lane. In the circumstances the Lower Appellate Court allowed the appeal and granted the relief which was prayed for by the plaintiff.

10. I have considered the submissions made on behalf of both the learned advocates. I have also considered the oral and documentary evidence. The Second Appeal was admitted on the substantial question of law in respect of the two sale deeds as set out hereinabove. The question is whether the sale deeds are

sufficient to hold title in favour of the vendor in those sale deeds. It is no doubt that both the sale deeds are the registered documents. In both the sale deeds it is mentioned that the vendor Shri Hirve had sold the suit property with the lane on the Western side of the house to Shri Dhage and Shri Dhage had in turn sold the same property including the lane to the plaintiff. In my opinion the contention of Mrs. Agarwal is correct that mere description in the sale deeds will not conclusively prove the title of the respective vendors of the property as described in the sale deeds particularly when it related to the property of the third party. In both the sale deeds respectively Shri Hirve to Dhage and from Dhage to the plaintiff the property described includes the lane, which according to the Defendant could not be included as it was his own property. None could claim right inter se over the property of a third party. And when such third party challenges such right or title over his property, the claimants have to prove the hilt beyond doubt that they are the owners of the property. In the sale deeds no doubt the description of the lane is included but in fact the defendant is the owner of the suit property which includes the disputed lane. In this circumstance mere transaction of the sale deeds between two parties would not be sufficient to prove the title over the disputed area claimed by the third party. The plaintiff ought to have produced some more strong and reliable evidence to show that he had purchased not only the suit house from Shri Dhage but he had also purchased the disputed lane along with the said house. It is significant to note that the first vendor Shri Hirve was not examined as a witness to show that he was having a perfect title over the suit lane and that he had lawfully transferred the perfect title of the lane to Shri Dhage. This crucial evidence is totally absent. Shri Hirve's testimony could have lent credibility to the case of the plaintiff as Shri Hirve would have been put to the strict proof his claim or title over the suit lane. Shri Dhage had sold the said property to the plaintiff and both are related with each other and they are supporting each other. When the description of a property in the sale deed is disputed by a third party and when it is alleged that in the sale deed the property of the third party is also included heavy burden lies on the vendor as well as purchaser of the property to show that the description in the sale deed was perfect and that the alleged third party had no right over the disputed portion of the property. In the present case there is no such evidence to give weightage and strength to the case of the plaintiff that he had purchased the property along with the lane from Shri Dhage. In the absence of the title deeds of Shri Hirve and in the absence of any other reliable good evidence to prove that he was the owner of the lane and that he had sold it to Shri Dhage, it cannot be said that Shri Dhage had purchased the lane from Shri Hirve and that he had sold the said land to the plaintiff. It cannot be accepted that a mere description of a property in a registered sale deed is conclusive to hold that the vendor has good and perfect title to pass it over to the purchaser. Can two persons by a registered sale deed sell Taj Mahal? If not, how can the vendors respectively sell the small lane of the defendant to the plaintiff? The sale deed, though registered, shall bind the parties to it but not the third party whose property the former purported to include in the sale deed. If the third party challenges the sale deed, the vendor has to establish his clear title over the property as against the claim of the third party. The plaintiff in the present case has totally failed, as rightly held by the trial

Court, to establish his title over the small lane. Besides, the certified maps of the houses visually give clear picture that the suit lane is included in the house property of the defendant who appears to have left the said small area as some open space around his house. In such circumstances in my opinion the sale deeds though registered cannot be treated as conclusive and clinching evidence of title over the property described in the sale deeds. The whole reliance by the Lower Appellate Court on the Sale deeds without any further evidence was not proper.

11. On the other hand the defendants produced a certified copy of the maps from the record of the authorities. The map has been admitted. In the map both the houses are shown. In the portion of the house property of the defendant the lane is shown are included in the house property of the defendant. In the portion of the house property of the plaintiff no such lane appears. His house is bigger than the house of the defendant, who appears to have constructed a smaller house and has left some open space around the house as the piece of the plot appears to be of odd size. The entire lane is shown as part and parcel of the house owned by the defendant. From the map it cannot be said that there is any so called lane between two houses. Merely because the defendant has left some open space on the western side as he could not have constructed till the end of the wall in view of the odd size of the plot, it cannot be said that it was a lane between the two houses. The trial Court has rightly held that the certified copies of the maps were clinching evidence.

12. The very narrow question is whether the plaintiff can claim the ownership of the lane which was included as the portion of the suit house owned by the defendant. Since the plaintiff did not adduce any stronger evidence to corroborate the sale deeds. The description of the house property in the certified copy of the house maps prepared by the concerned authorities is the conclusive and the clinching evidence to prove and establish that the plaintiff did not own and did not possess the suit lane which was included in the area of the defendant. In my opinion it can be the open area and cannot be said to be a lane between the two houses. It is merely an open area left by the defendant around his house. The learned Appellate Court was not right in reversing the judgment of the trial Court. In my opinion mere Registered Sale Deeds are not conclusive and clinching evidence to prove the length and width of the property as described therein when the third party has questioned the description of the property wherein his property was included. These registered sale deeds are no doubt binding on the vendor and the purchaser but they cannot adversely affect the rights of the third party when the third party is disputing the description of the property in the registered sale deeds. In that event heavy burden lies on the party who is claiming that what is described in the registered sale deeds was correct and that the third party had no right to claim any portion of the described land in the sale deed.

13. In the present case the plaintiff had not adduced any strong evidence in his support, and therefore, the trial Court had rightly dismissed the suit. The trial Court had rightly relied on the certified copies of the maps from the concerned authorities to establish that the lane was forming part and parcel of the portion of the suit house property of the defendant. The impugned judgment and order of the Appellate Court therefore deserves to be quashed and set aside and the same

is set aside. The Judgment and Order of the trial Court is restored. No order as to costs. Second Appeal is therefore allowed. Certified copy is expedited.