Bombay High Court
5B Sou. Kavita Suraj Kadam vs All on 10 December, 2012
Bench: R. M. Savant
sa-72.09&cas-233.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.72 OF 2009
WITH
CIVIL APPLICATION NO.233 OF 2009
1 Dattatray Gopal Pasalkar ]
(Deceased) through legal representatives ]
]
1A Arun Dattatray Pasalkar ]
Age : 50 years, Occu : Service ]
]
1B Anil Dattatray Pasalkar ]
Age : 45 years, Occu : Service
ig ]
]
1C Vasant Dattatray Pasalkar ]
Age : 38 years, Occu : Service ]
Nos. 1A to 1C R/o. House No.19 ]
Opp. Bhajani Math, Warachi Peth, ]
Igatpuri, Tal. Igatpuri ]
Dist. Nashik. ]
]
2 Arun Dattatray Pasalkar ]
Age : 50 years, Occu : Service ]
]
3 Anil Dattatray Pasalkar ]
Age : 45 years, Occu : Service ]
]
4 Vasant Dattatray Pasalkar ]
Age : 38 years, Occu : Service ]
Nos. 1 to 4 R/o. House No.19 ]
Opp. Bhajani Math, Warachi Peth, ]
Igatpuri, Tal. Igatpuri ]
Dist. Nashik. ]
]
5 Vijaya w/o Natha Katte, ]
since deceased through her heirs and ]
legal representatives ]
]
5A Ganesh Natha Katte ]
Age 25 years, Occ : Service ]
R/o Jay Bhavani, Co-op. Hsg. Society, ]
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Mohan Nagar Sion, Chuna Bhatti, ]
Mumbai - 400 022 ]
]
5B Sou. Kavita Suraj Kadam ]
Age 24 years, Occ : Household ]
R/o. Ramabai Colony, ]
Kalwa, District : Thane ]
]
5C Shri Natha Savaliram Katte ]
Age 60 years, Occ : Nil ]..... Appellants
R/o Jay Bhavani, Co-op. Hsg. Society, ](Orig.Respondents
Mohan Nagar Sion, Chuna Bhatti, ] No.1 to 5)
Mumbai - 400 022 ]
versus
Saraswati Jagannath Pasalkar (deceased)
Through legal representatives
]
]
]
1 Shri Prakash Jagannath Pasalkar ]
Age : 45 years, Occu : Service ]
]
2 Manoj Jagannath Pasalkar ]
Age : 42 years, Occu : Service ]
]
3 Anant Jagannath Pasalkar ]
Age : 42 years, Occu : Service ]
]
4 Vanmala D/o.Jagannath Pasalkar ]
Age : 50 years, Occu : Housewife ]
]
All R/o. House No.90, Opp. Bhajani ]
Math, Warachi Peth, Igatpuri, ]
Tal. Igatpuri, Dist. Nashik ]
]
5 Smt. Malati w/o Sharad Pasalkar ]
(Deceased) through legal representatives ]
]
5A Sharad Gopal Pasalkar ]
Age : 70 years ]
]
5B Pravin Sharad Pasalkar ]
Age : 43 years ]
]
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5C Prasram Sharad Pasalkar ]
Age : 28 years ]
]
All R/o. Shriram Apartment, ]..... Respondents
Gandhi Chowk, Warachi Peth, ](Nos.1 to 4 - Orig.
Igatpuri, Tal. Igatpuri ]Appellants. No.5 -
Dist.Nashik. ]Orig. Respondents.
Mr. A M Kulkarni for the Appellants.
Mr. Shrishailya S Deshmukh for the Respondent Nos.1 to 4.
CORAM : R. M. SAVANT, J.
DATE : 10th December 2012
ORAL JUDGMENT :
1 The above Second Appeal arises out of the judgment and order
dated 20/10/2008 passed by the learned District Judge-I. Nashik by which the
Appeal filed by the original Defendant No.1 came to be partly allowed, and the
decree of the Trial Court decreeing the suit in question by issuing the
declaration, mandatory injunction, mesne profit came to be set aside, and was
restricted to only restraining the Defendants from interfering with the
possession of the original Plaintiffs in respect of the land bearing CTS
No.180/1 shown in map Exhibit 61 including rectangular portion of land CTS
No.180/1 in which the well is situated.
2 The parties trace their lineage from common ancestor one
Gopalrao Gangaram Pasalkar. The original Plaintiffs and the Defendants are
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heirs of the daughters in law Anusayabai and Saraswatibai of the said Gopalrao
Pasalkar. The original Defendant No.2 Malatibai is the daughter in law of the
said Gopalrao Pasalkar, who has expired during the pendency of the
proceedings. The property which is the subject matter of the dispute is the self
acquired property of the said Gopalrao. By execution of the Will in respect of
the property bearing City Survey No.180 bearing House No.90 and House
No.91 ad-measuring 76 sq.yards approximately 636.11 sq.mtr, the said
Gopalrao had divided and partitioned the same equally between the three
daughters in law i.e. deceased Anusayabai, Saraswatibai and Maltibai. It
seems that the portion given to the Defendant No.2 Maltibai is first in line to
the western side of which is the portion given to Saraswatibai and 1/3 rd
portion to the western side of Saraswati's property is the 1/3 rd portion of
Anusayabai. The property described in Clause 30C of the City Survey No.180
i.e. western share along with the well situated therein and ad-measuring 50 ft
East-West x 27 ft. North-South i.e. the open space which had fallen to the share
of the Plaintiff No.1's wife Anusayabai. The revenue entries were accordingly
made in the property register in the name of Anusayabai and after the death of
Anusayabai, the property devolved upon the Plaintiffs, and their names came
to be recorded in the record of rights. It seems that the Defendants started
having disputes with the Plaintiffs and it is alleged that they had encroached
upon the share of the Plaintiffs from the western side to the extent of 3 ½ ft.
This resulted in Plaintiffs filing suit bearing Regular Civil Suit No.87 of 1992
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for restoration of the portion of their property which the Defendants had
encroached. It was the case of the Plaintiffs that the open space admeasuring
50 x 27 ft was in their possession along with the well situated therein. In the
said suit a Court Commissioner by way of City Survey Officer was appointed.
The property continued to be in possession of the Plaintiffs and they were
using it. The matter was precipitated by the Defendants on 26/9/2000 when it
was alleged that the Defendant No.1 brought stones and building material and
stacked it in the open space thereby prohibiting the Plaintiffs from accessing
their land, as it was the case of the Plaintiffs that the Defendant No.1 had
encroached upon the portion of their open space admeasuring 50 x 27 ft.. The
cause of action for filing the present suit had arising on 26/9/2000 when the
Defendants had restrained the Plaintiffs from going to the well situated in the
open space admeasuring 50 x 27 ft. The Plaintiffs therefore sought a
declaration in the suit in question that the open space along with the well
situated in Survey No.180 ;House No.90 be declared as owned by the Plaintiffs.
The Plaintiffs also prayed for removal of encroachment by removing the stones
stacked in the open space covering 50x27 ft and hand it over to the Plaintiffs.
They also prayed for damages on account of the acts of the Defendants.
3 On behalf of the Defendants, the Defendant No.1 filed her written
statement. The execution of the Will by the said Gopalrao is admitted by the
Defendant No.1. However, it was denied by the Defendant No.1 that 1/3 rd
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share of the western side admeasuring 50 x27 ft. was given to the said
Anusayabai along with the open space and the well situated therein as
contended by the Plaintiffs. It was contended by the Defendant No.1 that it
was clearly mentioned in the Will that Anusayabai would get 1/3 rd portion of
the property abutting to the road along with the well. It was the case of the
Defendant No.1 that the Plaintiffs have unnecessary raised a dispute by
wrongly describing the property showing the size of the open space as 50 ft
East-West and 27 ft. North-South by wrongly interpreting the recitals in the
Will. It was denied by the Defendant No.1 that the size of the well was 50 x 27
ft. However, it was accepted by the Defendant No.1 that the Plaintiffs are the
legal representatives and are entitled to succeed to the estate of the said
Anusayabai. The fact of the property being sought to be encroached by the
Defendant No.1 was denied. It was contended by the Defendant No.1 that City
Survey Officer had carried out the measurement and had determined the
shares of the parties to the suit showing each one of them was entitled to 1/3 rd
share in the total property which belonged to Gopalrao Pasalkar. It is accepted
by the Defendant No.1 that the portion of the property which had gone to the
share of the Plaintiffs is City Survey Nos.180/1, and that City Survey No.180/2
came to the share of the Defendant No.1, and City Survey No.180/3 had gone
to the share of the Defendant No.2, and that the maps are drawn and the
entries are made in the property register.
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4 The Defendant No.2 also filed her written statement. She denied
that the Defendant No.1 had brought stones on the open space and had
restrained the Plaintiffs from going to the well by bringing the stones at the site
causing encroachment to the extent of 50x27 sq.ft. of the open space in which
the well is situated. According to the Defendant No.2 there was no cause of
action for filing the present suit.
5 The parties went to trial. In the context of the present Second
Appeal, the relevant issues are the issues pertaining to whether the Plaintiffs
proved the title and possession; and whether the Defendants have encroached
upon the property of the Plaintiffs.
6 In assertion of their respective cases, the parties led evidence i.e.
both oral and documentary. The Trial Court on the basis of the material on
record came to a conclusion that the Plaintiffs have proved their title and
possession over the suit property. The Trial Court also recorded a finding that
the Defendants had brought the stones and stacked them towards the western
side of the House No.90 and prevented egress and ingress of the Plaintiffs in 50
x 27 ft area and made encroachment to the extent of that portion. The Trial
Court held that the suit was not barred by principles of res-judicata in view of
the earlier suit filed by the Plaintiffs. The Trial Court, therefore, decreed the
suit in so far as declaration is concerned, and directed the Defendants to
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remove the encroachment over the suit property and hand the possession to
the Plaintiffs, the Defendant Nos. 1 and 2 were also restrained from obstructing
the possession of the Plaintiffs over the suit property.
7 The Defendant No.1 aggrieved by decreeing of the suit as above,
filed an Appeal being Regular Civil Appeal No.84 of 2006. As indicated above,
the Lower Appellate Court, has partly allowed the said Appeal. The Lower
Appellate Court set aside the decree of declaration in respect of the Plaintiffs
title in respect of their 1/3rd share identified by the City Survey No.180/1,
however, granted decree of injunction restraining the Defendants from
interfering into the Plaintiffs possession in respect of the suit property
identified by City Survey No.180/1 including the rectangular portion of land in
CTS No.180/1 in which the well is situated. Since the encroachment by way of
stacking of stones had been removed after the decree was passed by the Trial
Court, the relief of mandatory injunction directing the Defendants to remove
the said encroachment did not survive, and therefore, the Lower Appellate
Court dismissed the suit in so far as the said relief is concerned. The Lower
Appellate Court, therefore by the judgment and order dated 20/10/2008 , as
indicated above, partly allowed the Appeal.
8 In so far as the decree of declaration of title issued by the Trial
Court is concerned, the Lower Appellate Court dismissed the suit of the
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Plaintiffs and set aside the decree on the ground that there was no proper
description of the property in so far as the rectangular portion surrounding the
well is concerned.
9 The substantial questions of law which arise for consideration in
the above Second Appeal are :-
(a) Whether the Appellate Court erred in dismissing the
suit for declaration of ownership when admittedly the
Defendants had accepted the 1/3rd share of Anusayabai
by virtue of one Will of late Gopalrao Pasalkar?
(b) Whether the Appellate Court erred in dismissing the
suit for declaration of ownership in view of grant of
decree for perpetual injunction of the similar portion?
10 In the light of narrow controversy which is involved, the above
Appeal is taken up for final hearing with the consent of the learned counsel for
the parties.
11 In so far as the Appellants are concerned, the learned counsel Shri
A M Kulkarni would contend that the Lower Appellate Court had erred in
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setting aside the decree of declaration of title which was in favour of the
Plaintiffs on the ground that there was no proper description of the rectangular
portion surrounding the well. The learned counsel would contend that once
the Defendants had accepted that the said Anusayabai was entitled to 1/3 rd
share as per the Will of Gopalrao Pasalkar and the said 1/3 rd share which had
come to each of the daughters in law has been divided by the City Survey
Officer by map Exhibit 61 i.e. CTS Nos. 180/1, 180/2 and 180/3, the decree of
declaration of title ought to have been sustained. The learned counsel would
contend that the Lower Appellate Court had erred in upsetting the decree of
declaration of title.
12 Per contra, it is submitted by the learned counsel appearing for the
Respondent Nos. 1 to 4 Shri Deshmukh that the decree of declaration of title
has been upset by the Lower Appellate Court in view of the fact that there was
no description of the said disputed portion of 50 x 27 ft. The learned counsel
would contend that though the Defendants do not dispute that Anusayabai was
entitled to 1/3rd share as also do not dispute the fact that the CTS No.180/1 is
of the Plaintiffs which comprises 1/3 rd share which has come to them from
Gopalrao Pasalkar, it is in view of the fact that there is no proper description of
the property which is the subject of the suit that the Lower Appellate Court has
set aside the decree in so far as declaration of title is concerned.
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13 Having heard the learned counsel for the parties, I have bestowed
by anxious consideration to the rival contentions. In so far as the present
Second Appeal is concerned, it is required to be noted that the Defendants in
their written statement have accepted the position that 1/3 rd share in the
property of Gopalrao Pasalkar was that of the Plaintiffs as the heirs of
Anusayabai. The Defendants also accepted the position that CTS No.180/1
comprises the said 1/3rd share as originally the land owned by Gopalrao
Pasalkar bore CTS No.180 was divided into three parts as per the Will of the
said Gopalrao Pasalkar and the said three parts were given number as CTS
Nos.180/1, 180/2 and 180/3. The Defendants also accepted the position that
the well in question is situated within CTS No.180/1. It is also required to be
noted that the Trial Court had issued declaration considering the aforesaid
position. However, the Lower Appellate Court as can be seen decreed the suit
in so far as the injunction is concerned and which decree the Lower Appellate
Court had made applicable pertinently to the said 1/3rd portion which is CTS
No.180/1 including the portion admeasuring 50 x 27 ft in which the well is
situated and the surrounding area. However, the Lower Appellate Court, in
my view, has misdirected itself by setting aside the decree of declaration of
title, if the Lower Appellate Court had found the Plaintiffs entitled to the
decree of injunction in their favour on the basis that the they were entitled to
1/3rd share, the said share comprises of CTS No.180/1 in which the well is
situated, then there was no reason for the Lower Appellate Court to deny the
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declaration of title to the Plaintiffs.
14 In the light of the aforesaid the finding of the Lower Appellate
Court that the Plaintiffs have not given proper description of the said area i.e.
50 x 27 ft. also cannot be accepted. Though the learned counsel for the
Appellants i.e. the original Plaintiffs sought to buttress his submission that the
finding of the Lower Appellate Court that there was no proper description of
the property was erroneous for which he sought to advert to the description in
the plaint, in my view, it is not necessary to see the description in the plaint as
the Lower Appellate Court itself had found it fit to grant the decree of
injunction which could only be against an identified portion. It is required to
be noted that the Defendants have not filed a Second Appeal challenging the
decree of injunction which has been passed by the Lower Appellate Court. In
my view, therefore, the decree of the Lower Appellate Court in so far as it sets
aside the decree of declaration of title passed by the Trial Court is required to
be set aside and in turn the Appeal is required to be allowed in so far as the
relief of declaration of title of the Plaintiffs in respect of the land bearing CTS
No.180/1 is concerned, therefore apart from the decree of injunction, the
Plaintiffs are also entitled to the decree of declaration.
15 The questions of law are accordingly answered. The decree of the
Lower Appellate Court is modified to the extent that the Plaintiffs are entitled
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to the declaration of title in respect of the land bearing CTS No.180/1
including the rectangular portion of CTS No.180/1 in which the well is
situated.
16 The suit in question is also decreed in respect of the declaration of
title to the land bearing CTS No.180/1 shown in the map Exhibit 61 including
the rectangular portion of land CTS No.180/1 in which the well is situated.
The Plaintiffs are accordingly declared as owners thereof. The Defendants
Nos.1/2 to 1/5 i.e the legal representatives of Saraswatibai Pasalkar i.e.
Prakash Jagannath Pasalkar, Manoj Jagannath Pasalkar, Anant Jagannath
Pasalkar Smt. Vanmala D/o Jagannath Pasalkar are restrained from interfering
into the Plaintiffs possession i.e. the possession of the present Appellants over
the land CTS No.180/1 shown in map Exhibit 61 including rectangular portion
of land CTS No.180/1 in which the well is situated The above Second Appeal is
accordingly allowed. Decree be drawn up accordingly.
17 In view of the above Second Appeal being allowed, the Civil
Application No.233 of 2009 which is for injunction does not survive and the
same to accordingly stand disposed of as such.
[R.M.SAVANT, J]
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