Bombay High Court
Subhan Kacharu Patel And Ors vs Bharat Gopalrao Deshmukh on 8 December, 2009
Bench: Rajesh G. Ketkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 1332 OF 2009
WITH
CIVIL APPLICATION NO. 5916 OF 2009
1 Subhan s/o Kachru Patel,
Age 40 years, Occ. Business,
2 Mohammad Sharif s/o Kachru Patel,
Age 35 years, Occ. Labours
3
Sakinabee w/o Kacharu Patel,
Age 51 years, Occ. Household
All R/o. Plot No.B-7, Garkheda, ...Appellants
Near Hanuman Mandir, Aurangabad (Ori. Defts 1 to 3)
Versus
Bharat s/o Gopalrao Deshmukh,
Age 54 years, Occ. Agriculture,
Resident of Pohner, Tq. Parali Vaijinath ...Respondent
District Beed (Ori. Plaintiff.)
.....
Mr. K.C. Sant, advocate for the appellants
Mr. V.P. Latange, advocate for respondent
.....
CORAM: R.G. KETKAR, J.
DATED: 8TH DECEMBER, 2009
JUDGMENT:-
1 This appeal is preferred by the original defendants 1 to 3
challenging the judgment and decree dated March 26, 2009, passed
by the learned IIIrd Joint C.J.S.D. Aurangabad in Special Civil Suit No.
39 of 2000. The said suit was instituted by respondent original plaintiff
for recovery of possession of plot bearing No. B-7 admeasuring 20 ft x
30 ft. in part of land survey No.1 having part of C.T.S. 15304 situate at
Garkheda, Aurangabad, as more particularly described in para 1 of the
plaint (for short "the suit property"). By the impugned judgment and
decree, the learned trial Judge decreed the suit and directed the
appellants to handover the peaceful possession of the suit property
within two months from the date of order. The parties shall be referred
as per their original status in the trial Court. The facts giving rise for
filing of the present first appeal, are as follows:-
2 The plaintiff instituted the suit for recovery of possession of the
suit property contending, interalia, that he had purchased the suit
property by registered sale deed on September 23, 1981 from one
Gangadhar Narayan Gaikwad for a consideration of Rs.400/-. He
claims that from the date of purchase of the suit property, he is in
possession of the suit property. The plaintiff came with a case that he
has landed agricultural properties at his village Pohner. Because of
illness of the plaintiff, since the last one year, he could not come to
Aurangabad and when he came on January 14, 2008, he noticed that
the defendants are trying to encroach upon the suit property. The
plaintiff questioned them, whereupon it is alleged by the plaintiff that
the defendants threatened the plaintiff by knife saying that if he comes
again on the suit property they will kill him. The plaintiff caused to
issue notice through advocate on January 16, 2008, calling upon the
defendants to remove the encroachment and hand over the
possession to the plaintiff. Despite receipt of notice, the defendants did
not hand over the possession and on the other hand erected tin shed
over the suit property and started residing there. The plaintiff asserted
that the defendants are in illegal possession over the suit property and
consequently he instituted the suit for recovery of possession of the
suit property as also for mesne profits.
3 The defendant Nos. 1 and 2 filed written statement at Exh. 12/B
and contended that their mother i.e. defendant No.3 is the owner and
in possession of the suit property. They denied execution of the sale
deed by Gangadhar Narayan Gaikwad in favour of the plaintiff. They
denied the title of the plaintiff by saying that he is not owner and
possessor of the suit property. They specifically asserted in para 4 of
the written statement that the mother of the defendant Nos. 1 and 2 is
the owner and possessor of the suit property and consequently there
is no question of encroaching upon the suit property by threatening the
plaintiff. They further denied that they are in illegal possession of the
suit property. They filed additional say and written statement, wherein
it was asserted that the mother of defendant Nos. 1 and 2 is regularly
paying residential and service tax to the Municipal Corporation of the
City of Aurangabad and that the plaintiff did not make mother of
defendants 1 and 2, as party defendants. They reiterated that the
mother of defendant Nos. 1 and 2 is owner of the suit property. It
seems that pursuant to the order dated November 28, 2008, the
defendants 1 and 2 amended the written statement. It was asserted
that the notice dated July 12, 2002 under Section 45 of the
Maharashtra Land Revenue Code, 1966 was given to their mother
calling upon her to pay tax for the period from 1996 to 2002. The
authority gave notice only after verifying the the possession of the
mother of defendant Nos. 1 and 2. They also asserted that name of
their mother Sakinabee is mentioned in the election card given by the
Election Commission. Mother of defendants 1 and 2 is in possession
of the documents showing her possession for more than 22 years. It
was also asserted the "defendants possession is adverse to the true
owner and the plaintiff has no right to file the present suit against the
present defendants." It is relevant to note at this juncture that in the
first place, the defendant Nos. 1 and 2 did not disclose the name of the
true owner but merely averred that their possession is adverse to the
true owner. Secondly, they specifically denied the ownership of the
plaintiff and contended that the plaintiff has no right to file the present
suit against them meaning thereby that the plaintiff has no right or
interest in respect of the suit property. In short, they denied the
ownership and title of the plaintiff.
4 The defendant Nos. 1 to 3 filed amended written statement at
Exh.45/B. In para 2 of the written statement, it was asserted that
mother of defendants 1 and 2 is possessor of the land and they denied
that the plaintiff is owner and possessor of the land on the basis of the
sale deed executed by Gangadhar Narayan Gaikwad. The defendant
Nos.1 and 2 further asserted that their mother is in possession of the
suit property and they denied that the defendants tried to encroach
upon the suit property. In para 9 of the additional say and written
statement, they reiterated that mother is possessor of the suit property
since birth of the defendant Nos. 1 and 2. In para 11 of the said
written statement, the defendants asserted that they came alongwith
mother to Aurangabad in the year 1985 and since then they are
residing in the suit property. It was reiterated that their possession is
adverse to the true owner and plaintiff has no right to file the present
suit against the defendants. Once again they did not disclose the
name of true owner.
5 Defendant No.3 filed separate written statement at Exh.84/B and
further additional written statement wherein in para 8, it was asserted
that the plaintiff was aware of the possession of the defendants from
the year 1985. It is their case that the plaintiff asked the defendants to
look after and maintain the suit property, as he is not in need of the
suit property. Thus, in the written statement filed by defendant No.3 in
para 8, it was averred that the plaintiff asked the defendants to
maintain the suit property. In para 10, the defendant No.3 asserted
that she is living in the suit property with the consent of the plaintiff
from the year 1985.
6 On the basis of the pleadings of the parties, learned trial Judge
framed issues on September 12, 2008. In support of the plaintiff's
claim the plaintiff filed his affidavit dated October 4, 2008 in lieu of
examination in chief at Exh.18. He reiterated therein the contentions
raised in the plaint. The plaintiff was cross examined by the
defendants.
7 On behalf of the defendants, defendant No.2 Mohd. Sharif was
examined as DW 1. He filed affidavit dated November 28, 2008 in lieu
of examination in chief at Exh.42/C as DW 1. He reiterated that he
alongwith his brother and mother started residing in the suit property
since 1985. They were continuously occupying the suit property
without anybody's obstructions. He reiterated that the contentions
about receipt of the notice under Section 45 of the Maharashtra Land
Revenue Code, 1966, dated July 12, 2002; payment of tax to the
Municipal Corporation; name of his mother in the voters list prior to
1996 as also Identity card issued by the Election Commission. In para
5 it was asserted that they were not aware as to who is owner of the
suit property. The defendants are in possession of the suit property for
last 22 years without obstruction, peacefully and continuously. In the
cross examination, he replied that he is not aware as to whether the
plaintiff purchased the suit property from Gangadhar Gaikwad in the
year 1981. He did not make any inquiry as to who is the owner of the
suit property and also did not verify the title documents of the suit
property. In the cross examination, he further asserted that they have
purchased the suit property from the person who is dead and that he is
not aware as to when the said person died and for what consideration
they had purchased the suit property. He also admitted that he is not
aware as to where their vendor was residing and that while purchasing
the suit property they did not take search of the title deeds.
8 The defendants also examined defendant No.3 Sakinabee as
DW 2 at Exh 54. In the cross examination, she admitted that she was
not consulted before preparing the written statement. She did not
verify the title deeds of the suit property till filing of the suit property.
She was not aware about ownership of the suit property till filing of the
suit.
9 On the basis of the material on record, the learned trial Judge
came to the conclusion that the plaintiff has established his title over
the suit property and the defendants have encroached upon the suit
property. Accordingly he decreed the suit and directed the defendants
Nos.1 to 3 to handover the peaceful possession of the suit property
within two months from the date of order. He further ordered inquiry
into future mesne profits under Order XX Rule 12 of the Code of Civil
Procedure, 1908 and ordered the defendants 1 to 3 to pay costs of the
suit and to bear their own costs.
10 The appeal came up for admission before this Court and on
July, 2, 2009, this Court called for record and proceeding of the case.
Counsel for the parties agreed to argue the matter finally at admission
stage and accordingly the court ordered disposal of the appeal at
admission stage. In view of this appeal is admitted. Learned counsel
for the respondent original plaintiff waives service. By consent, the
appeal is taken up for final hearing.
11 Shri K. C. Sant, learned counsel for the defendants strenuously
contended that the learned trial Judge committed serious error in
decreeing the suit. The learned trial Judge has not properly considered
the oral as well as documentary evidence on record. The learned Trial
Judge did not give proper opportunity to defend the case and
consequently the decree passed is against the principles of natural
justice. He also submitted that the defendants are in possession of the
suit property since 1985 and suit was instituted on January 29, 2008.
The suit, according to the learned counsel, was hopelessly time
barred. He further submitted that right from 1985 onwards the
defendants are in peaceful possession of the suit property and that
they have perfected their title over the suit property by adverse
possession. The learned trial Judge committed error in holding that the
plea of defendant Nos. 1 and 2 on one hand and plea of defendant No.
3 on the other hand, is contradictory. The learned counsel for the
defendants also urged that to the knowledge of the plaintiff the
defendants are continuously in possession and therefore, the learned
trial Judge ought to have dismissed the suit.
12 On the other hand, learned counsel for the plaintiff supported
the impugned judgment and decree.
13 As set out earlier, in the written statement filed by defendant
Nos. 1 and 2, initially they pleaded that their mother i.e. defendant No.
3 is the owner of the suit property. Subsequently, they changed the
stand and pleaded that the mother is in possession of the suit
property. They asserted that they are in possession of the suit
property for more than 22 years and their possession is adverse to the
true owner and the plaintiff has no right to institute the present suit. As
observed earlier, they did not even disclose the name of the true
owner. They also denied the ownership of the plaintiff.
14 In so far as the defendant No.3 is concerned, in her separate
written statement she came out with a case that the plaintiff asked the
defendants to maintain the suit property and with the plaintiff's
consent, the defendants are living in the suit property from 1985. In
the oral evidence of the defendants they felt ignorance about
ownership of the suit property. At one stage feeble attempt was made
by D.W.1 Mohd. Sharif while deposing that they have purchased the
suit property from a person who is no more. He could not tell even the
name of the person from whom they purchased the suit property. He
was not even aware as to consideration paid for purchasing the suit
property. Considering the pleading of the defendants as well as their
evidence, it is clear that they have not established their ownership on
the basis of any title deed. In so far as the plea of adverse possession
is concerned, the defendant 1 and 2 contended that their mother is
owner, which plea was subsequently changed by contending that their
mother is in possession of the suit property. In the oral evidence, an
attempt was made to establish that they have purchased the suit
property. In so far as the defendant No.3 is concerned, she pleaded
that with the permission of the plaintiff defendants are residing in the
suit property.
15 The defendants have neither established their title on the basis
of any documents nor perfected their title by adverse possession.
Before a party can succeed in establishing title on the basis of
adverse possession, a plea to that effect must be specifically raised.
It is a cardinal principle that a person who claims adverse possession
must plead to that effect and must show on what date he came into
possession, what was the nature of his possession, whether the fact of
his adverse possession was known to the owner and what was the
period of such adverse possession. The Principle of law as to what is
necessary to constitute adverse possession is well settled and the
principle is that such possession must be "adequate in continuity, in
publicity, and in extent, to show that it is possession adverse to the
true owner. In other words, there must be a clear assertion of a hostile
title." (please see Yesu Sadhu Nimagre and others Vs. Kundalika
Babaji Nimagre and Anr, 1977 Mh.L.J. 130).
16 In the instant case, the defendants have neither pleaded nor
established that they become owners by adverse possession. I do not
find any error committed by the learned trial Judge while decreeing the
suit. The defendants have absolutely no semblance of right, title or
interest in respect of the suit property. They are rank trespassers.
There is no substance in any of the submissions advanced on behalf
of the defendants. In the result, the appeal is devoid of any substance
and deserves to be dismissed. Hence the following order;-
ORDER
The appeal is dismissed and the judgment and decree passed
by the learned trial Judge of March 26, 2009 is confirmed.
In view of dismissal of first appeal, civil application No. 5916 of
2009 does not survive and the same stands dismissed.
*****
