Dharma S/O Tatua @ Dakru Dakhane ... vs Nathu S/O Mona Nakhate
2005 Latest Caselaw 654 Bom

JUDGMENT

S.T. Kharche, J.

1. This second appeal takes an exception to the judgment and decree passed by the learned 2nd Additional District Judge in Regular Civil Appeal No. 51 of 1982 whereby the appeal was allowed and the judgment and decree dated 22-1-1982 passed in Regular Civil Suit No. 150 of 1977 was set aside and the defendant was directed to deliver the possession of the suit land Gat No. 189 having area 1.27 acres to the plaintiff within a period of three months with a further direction to hold enquiry into future mesne profits.

2. Brief facts are as under :

The respondent/original plaintiff contended that he owned and possessed Kh. No. 174/2 and 176/1 (now Gat No. 189) admeasuring 1.27 acres and he was in cultivating possession of the said land even before and after the consolidation scheme was made applicable to village Maleghat in the year 1970. According to the plaintiff before June, 1977 the defendant was claiming ownership over the suit land and hence on 16-4-1977 he got his land measured through the surveyor of the Land Records Department (P.W.1 Vinayak) who found that the land shown in the plaint was in possession of the defendant. The plaintiff contended that the defendant forcibly obtained the possession of the said land in June, 1977 and though called upon to deliver the possession by issuing notice dated 9-7-1977, he gave false reply on 16-8-1977 claiming ownership.

3. The defendant contested the suit by filing his written statement. According to him, he had purchased the suit land out of Survey No. 176/2, 176/3 and 176/4 on 16-7-1959 having total area 0.97 acres and Kh. No. 400 area 0.22 acres, thus total land of 1.19 acres from Ganu Urkuda, Motiram Ganu and Laxman Sonu. The vendors delivered possession of the field Gat No. 189 after the purchase and since then he is in continuous peaceful possession since 16-7-1959 without any interruption and, therefore, acquired title by adverse possession.

4. The trial Court on appreciation of the evidence was of the view that the plaintiff has failed to establish his title to the suit land and the defendant has failed to establish that he has acquired title by adverse possession. Consistent with these findings, he dismissed the suit on 22-1-1982. Being aggrieved by the said judgment and decree, the plaintiff carried appeal to the District Court. The learned 2nd Additional District Judge by his judgment and decree dated 7-7-1989 allowed the appeal by setting aside the judgment and decree passed by the trial Court and directed the defendant to deliver the possession of the suit land Gat No. 189 having area 1.27 acres to the plaintiff. This judgment and decree passed by the first appellate Court is challenged in this appeal.

5. The Learned Counsel for the defendant contended that the substantial question of law which requires consideration in this appeal is whether a certificate of Consolidation Officer (Ex.46) has been duly proved in accordance with the provisions of Sections 67 and 68 of the Indian Evidence Act, 1872 and whether the certificate of the Consolidation Officer or the 7/12 extract from the revenue record can be said to be exclusive proof of title. He contended that the appellate Court has committed an error in placing reliance on these two documents, i.e. the certificate issued by the Consolidation Officer and the 7/12 extract in order to show the ownership of the plaintiff over the suit land. He contended that both these documents have not been duly proved and are inadmissible in evidence and, therefore, the impugned judgment and decree passed by the first appellate Court cannot be sustained in law and the appeal may kindly be allowed.

6. None appeared for the respondents/plaintiff though duly served.

7. This Court has given thoughtful consideration to the contentions canvassed by the Learned Counsel for the appellant and also gone through the judgments of both the Courts below. The appellate Court has observed in para 9 of its judgment as under --

I do not think that the way in which Ex. 46 is there being firstly issued by the Consolidation Officer under the Act and thereafter when it was presented for the purpose of registration and the Registrar had duly registered it. I do not think that there was any need to prove that particular documents again so as to give effect to it. Even assuming for the sake of argument that it is not proved then in that event also when the plaintiff had pressed in service in document in the form of 7/12 abstract which is at Ex.38 then certainly the entry stands in the name of plaintiff in the record of right, it has got presumptive value and then it was incumbent upon the defendant to rebut this presumption which stood in favour of the plaintiff. It is here if I say that the defendant was pleased not to lead any evidence from his side on any Court whatsoever and, therefore, when on the strength of Ex.38 that document being there showing the suit land to be recorded in his name, the title of the plaintiff certainly stands established and it can be taken to be conclusive proof of ownership so long as that document stands there effectively and not being assailed from the other side. It is therefore the discussion of the trial Court on this count appears to be improper and incorrect in neglecting the document Ex.38 and I can say that even as regards Ex.40 the approach of the trial Court was not proper. These both documents and even otherwise Ex.38 abstract of 7/12 entry on record of right is sufficient in the case at hand with the evidence in this suit to establish the title of the plaintiff and more so when the defendant did not adduce any evidence to substantiate his version about the so called title of his and further as regards as contention of his title by way of adverse possession in alternative being not there at all which was for him to discharge that burden.

8. What transpires is that the certificate issued by the Consolidation Officer (Ex.46) and 7/12 extract are public documents and are admissible in evidence as per section 74 of the Evidence Act which reads thus :

74. Public documents -- The following documents are public documents :--

(1) Documents forming the acts, or records of the acts --

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, (of any part of India or of the Commonwealth), or of a foreign country;

(2) Public records kept (in any State) of private documents.

9. In the present case, the certificate of Consolidation Officer (Ex.46) is a document which is required to be registered in accordance with the provisions of law and in fact it has been registered and this document would clearly reveal that the old survey No. 174/2 admeasuring 0.51 and 176/1 admeasuring 1.27 was consolidated and on the basis of Consolidation certificate the mutation entry was recorded in the record of rights. The 7/12 extract indicates that the entry was recorded in the name of the plaintiff as an owner. In such circumstances, it is obvious that there is no force in the contentions of the Learned Counsel for the appellant/defendant that both these documents are not admissible in evidence and have been wrongly considered by the lower appellate Court as a document of title.

10. What is relevant to note is that the defendant has contended that he has been in continuous, peaceful and uninterrupted possession and that he has acquired title to the suit land by virtue of adverse possession, but there is no iota of evidence to show that he has been in possession of the suit land adversely to the knowledge of the owner. Possession howsoever long may be, cannot become adverse unless it is shown that it was peaceful, uninterrupted with assertion of hostile title and for the statutory period of 20 years.

11. It is well settled law that adverse possession means possession of the land or interest in the land by a wrong man against the Will of the right man. adverse possession, as its words imply, must be actual possession of another's land with intention to hold it and claim it as of his own to the exclusion of the rightful owner. It must commence with the wrongful possession of the rightful owner at some particular time and must commence in wrong against right. It must be actual, open notorious and hostile under claim of right, continuous and exclusive and maintained for the statutory period.

12. In the present case, the defendant did not enter into the witness-box nor has adduced any oral or documentary evidence to show that he had purchased the said land in the year 1959. He did not produce the alleged sale-deed dated 16-7-1959 and, therefore, it is not possible to accept that the defendant has perfected his title by virtue of adverse possession. In the result, this Court finds that no substantial question of law is involved in this appeal and thus the same stands dismissed with no order as to costs.