State Of Maharashtra Through The ... vs Nathuji S/O Lotan Dhakate
2003 Latest Caselaw 313 Bom

JUDGMENT

V.M. Kanade, J.

1. Heard the learned Counsel appearing on behalf of the appellants and learned Counsel appearing on behalf of the respondent.

2. This Second Appeal has been filed by the appellants-State challenging the judgment and decree dated 6th June, 1989 passed by the 10th Additional District Judge, Nagpur in Regular Civil Appeal No. 155 of 1985, whereby the Judgment and Order dated 29th September, 1984 passed by the Third Joint Civil Judge, Senior Division, Nagpur in Regular Civil Suit No. 1121 of 1981 was set aside and the suit filed by the plaintiff was decreed.

3. Brief facts which are necessary for the purpose of deciding the Second Appeal are that the respondent original plaintiff purchased the house property bearing Municipal Corporation No. 508 situated in Ward No. 20 from one Pandurang Maroti Satpute by registered sale deed dated 6th September, 1965. The said house property consisted of the built up house and the open site on the Northern side in front of that house. It was the contention of the respondent-original plaintiff that the suit site had been in his possession even prior to 1965 as he was in possession as a tenant of one Mr. Pandurang Satpute and after purchase of the said house he was in possession as a owner of the suit property. It was the contention of the respondent-original plaintiff that the open site was not mentioned in the sale deed dated 6th September, 1965 though the entire house property was purchased by the respondent-original plaintiff from Mr. Pandurang Satpute. The respondent-original plaintiff, therefore, obtained deed of correction dated 18th July, 1976 from the legal heir of the deceased Pandurang Satpute. About five years thereafter one Babu Nathu Pethe filed an appeal before the Superintendent of Land Records, Nagpur challenging the decision of the Enquiry Officer in respect of Chalta No. 896, wherein the Enquiry Officer had held that the open site was a part and parcel of the plaintiffs house property. In the appeal, Special Superintendent of Land Records, Nagpur held that the suit site was jointly owned by the respondent-original plaintiff, Babu Nathuji Pethe and one other person.

4. The respondent-original plaintiff herein therefore preferred an appeal before the Deputy Director of Land Records, Nagpur who held that the suit site belongs to the State Government subject to the rights of public in general. The revision preferred before the Government was also dismissed. The respondent-original plaintiff, therefore, filed a suit for declaration of ownership in respect of the suit site and also for the confirmation of his possession.

5. A notice under Section 80 of the Code of Civil Procedure was given to the appellants-original defendants on 29th April, 1981 which was served on the State on 2nd May, 1981 and suit was filed for declaration of ownership and confirmation of possession.

6. The appellants-original defendants filed their written statement and the description of the built up portion of the house and open site was not disputed. The appellants-original defendants, however, denied the title of the respondent-original plaintiff in respect of the open site and well.

7. The Trial Court, after framing the issues and recording the evidence and hearing the parties, did not accept the contention of the respondent-original plaintiff and, therefore, dismissed the original plaintiffs suit for declaration and confirmation of his possession.

8. The respondent-original plaintiff filed an appeal before the District Court and the 10th Additional District Judge, Nagpur by his Judgment and Order dated 6th June, 1989 allowed the appeal and decreed the suit of the respondent-original plaintiff and declared that the plaintiff was the owner of the suit site as demarcated by letters A, B, C, D in the plaint map and as per the description which was given by para 1 of the plaint. The plaintiffs possession over the suit site "A, B, C, D" was also confirmed.

9. The Appellate Court after appreciating the documentary and oral evidence adduced by the plaintiff gave findings that from the description of the suit property as mentioned in the sale deed, it was clear that the open site which extended up to the well on the Northern side was sold by the predecessor in title Mahipatrao Telang to Bajirao and his son Dashrath Mohadikar and, thereafter, to the present respondent-original plaintiff. The Appellate Court further gave a findings that this fact was confirmed by virtue of the correction deed which was executed by the heirs of the vendor, who had executed correction deed dated 19th July, 1976. The Appellate Court after reappreciating the evidence came to the conclusion that the findings given by the Trial Court were not substantiated by the record and that the findings of fact recorded by him were perverse. The Appellate Court further set aside the conclusion of the Deputy Director of Land Records that the suit site was Government property because there was no document to show anybody's title over the same. The Appellate Court held that the documentary evidence clearly proved the plaintiffs title over the suit site and that the acts of the adjacent person fetching water from the suit well could not be construed as acts of possession of the suit site.

10. The appellants herein State of Maharashtra has preferred this Second Appeal challenging the Judgment and Order passed by the 10th Additional District Judge, Nagpur.

11. I have heard the learned Counsel appearing on behalf of the appellants-original defendants and respondent-original plaintiff at length. The learned Counsel appearing on behalf of the appellants was not in a position to point out any substantial question of law involved in the second appeal. The grounds which are mentioned in the memo of appeal do not raise a substantial question of law much less any question of law. The grounds in the memo of appeal are merely based on reappreciation of the evidence on record. It is now well settled that the High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure cannot reappreciate the evidence on record or set aside the findings of facts which are recorded by the Lower Court by substituting its own judgment in the place of the findings given by the Lower Court. After the amendment of Section 100 of the Code of Civil Procedure in 1976, the scope of interference by the High Court in a Second Appeal has become very limited. The report given by the 54th Law Commission was accepted by the Government which resulted in the amendment of Section 100 of the Code of Civil Procedure. The Law Commission was of the view that the issues involved should not merely be a question of law but a substantial question of law. In this view of the matter, it is not possible to interfere with the findings recorded by the Appellate Court by reappreciating the evidence.

12. It is a settled position in law that whenever a property is described on the basis of the measurement and on the basis of boundaries of the property and if any discrepancy is between the two, the description as given by the boundaries shall prevail. The Appellate Court has given a findings that the boundaries which are described in the sale deed clearly include the open site in which the well is situated. In view of this clear finding, it is not possible to defer with the findings given by the Appellate Court.

13. In this view of the matter, Second Appeal filed by the appellants original defendants is dismissed. Under the circumstances, there shall be no order as to costs.