Narayan Jugalkishor Gurkha & ... vs Ramjiyawan Shiobalak Pande
2016 Latest Caselaw 7224 Bom

                                     1
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                      NAGPUR BENCH, NAGPUR




                                                     
                        Second Appeal No.252 of 2000


      1. Narayan s/o Jugalkishor Gurkha,
         Aged about 30 years,




                                                    
         Occupation - Business.

      2. Jagdish s/o Jugalkishor Gurkha,
         Aged about 28 years,
         Occupation - Business.




                                         
            Both residents of Gorakshan Plots,
                             
            Akola.                                     ... Appellants/
                                                           Ori.Plffs.
                            
            Versus


      Ramjiyawan s/o Shiobalak Pande,
      


      Aged about 75 years,
      Occupation - Business,
   



      R/o Kailash Tekdi,
      Sindhi Camp, Akola.                              ... Respondent/
                                                           Ori. Deft.





      Shri S.C. Mehadia, Advocate for Appellants.
      Shri U.N. Vyas, Advocate for Respondent.


                   Coram : R.K. Deshpande, J.

Dated : 15th December, 2016

Oral Judgment :

1. The Trial Court passed a decree in Regular Civil Suit No.105

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of 1996 on 28-1-2000. The respondent-defendant was permanently

restrained from disturbing the possession of the appellant-plaintiffs

over the suit plot, admeasuring 720 sq.ft., without following due

process of law. In Regular Civil Appeal No.55 of 2000, the lower

Appellate Court has set aside the decree passed by the Trial Court and

dismissed the suit filed by the plaintiffs on 25-9-2000. Hence, the

original plaintiffs are before this Court in this second appeal.

2.

The suit in question was a simpliciter suit for permanent

injunction restraining the defendant from disturbing the possession of

the plaintiffs over the suit plot, admeasuring 720 sq.ft. The Trial

Court records the finding that the plaintiffs have established their

ownership and possession over Nazul Plot No.12/1, area 2,400 sq.ft.,

by the registered sale-deed dated 6-11-1995. It also records the

finding that the defendant tried to obstruct the possession of the

plaintiffs, and hence a decree for permanent injunction has been

passed.

3. The lower Appellate Court records the finding that the

plaintiffs have failed to establish that they are in possession of the suit

property referable to a valid title and consequently set aside the decree

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for permanent injunction passed by the Trial Court. It has further

recorded the finding that the sale certificate dated 6-5-1987 issued by

the Chief Officer, Municipal Council, Akola, under Section 156(2) of

the Maharashtra Municipal Councils, Nagar Panchayats and Industrial

Townships Act, 1965 was not exempted from registration and it was

required to be compulsorily registered under Section 17(2)(xii) of the

Registration Act, 1908.

4.

On 25-7-2001, this Court passed an order as under :

" Heard Mr. Mehadia, learned advocate for the appellant and Mr. Dharmadhikari, learned advocate for respondent.

In view of the substantial question of law carved out in ground No. I, II, III, apart from other enumerated therein, admit.

Considering the controversy in issue and the subject matter of the suit as well as the First Appeal, it will be proper to direct the parties to the second appeal to maintain

status-quo as on today till the disposal of the second appeal.

Mr. Dharmadhikari, waives service for respondent."

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The matter was admitted on the substantial questions of law on the

ground Nos.I, II and III in the memo of appeal, and the parties were

directed to maintain status quo during the pendency of this second

appeal. The said ground Nos.I, II and III are reproduced below :

"I. Whether the sale certificate issued by the Chief Officer of

the Municipal Council u/s 156(2) of the Maharashtra

Municipalities Act, is not exempted from registration as per the provisions of Sec.17(2)(xii) of the Registration Act, 1908?"

"II. Whether the Chief Officer of the Municipal Council is a Civil Officer or not as contemplated u/s 17(2)(xii) of the

Registration Act, 1908?"

"III. Whether a challenge can be raised to the legality of the sale certificate issued by the Municipal Council by way of

defence, when the limitation for filing a civil suit challenging the legality of the said sale certificate has already expired long back?"

5. After hearing the learned counsels appearing for the parties

for quite some time, on 29-11-2016, this Court passed an order as

under :

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" Heard the learned counsels appearing for the parties.

After going through the judgments delivered by both the Courts below, it seems that the question of title of

the plaintiffs could not have been into in the absence of there being any counter-claim by the defendant. The claim

of the plaintiffs was that they derived the title and possession over the suit property from one Motilal

Kanojiya, who became the owner of 960 sq.ft. of land on the basis of the registered sale-deed dated 26-5-1986, and the sale certificate issued on 6-5-1987 in respect of

1,440 sq.ft. of land by the Chief Officer, Municipal

Council, Akola. The dispute was apparently in respect of possession over the suit property.

The substantial question of law framed at serial No.(VI) in the memo of appeal is reproduced below :

"(VI) When under Section 156(2) of the Maharashtra Municipalities Act, the sale certificate cannot be issued without delivery of the possession of the property auctioned to the auction purchaser, whether a

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presumption can be drawn under Section 114 of the

Evidence Act, that the official acts must have been done in

accordance with the provisions of law and the possession must have been delivered before delivery of the sale certificate?"

The respondent is put on notice in respect of the aforesaid substantial question of law.

Put up this matter on 2-12-2016, as part-heard."

This Court had held that the question of validity of the title of the

plaintiffs over the suit property could not have been gone into by

the lower Appellate Court in the absence of there being any

counter-claim of title by the defendant. The only question,

according to this Court, was of the possession of the suit

property.

6. The suit property consisting of 2,400 sq.ft. was owned

by three brothers - (i) Jokhan, (ii) Ramjiyawan (defendant),

(iii) Ramajore. In Regular Civil Suit No.449 of 1981 filed by

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Jokhan for partition and separate possession, a decree was

passed in which 960 sq.ft. of land from western side was allotted

to Jokhan in the year 1983. After the death of Jokhan, his legal

heirs sold this land on 28-10-1983 to one Mohan Pali, who

subsequently sold it on 26-5-1986 to one Motilal Kanojiya.

Motilal Konojiya thus became the owner of 960 sq.ft. of land,

which had fallen to the share of Jokhan by the registered

sale-deed.

7. So far as the balance land of 1,440 sq.ft. owned by

Ramjiyawan and Ramjore was concerned, it was attached in the

auction conducted by the Municipal Council, Akola, for realizing

the arrears of taxes. One Motilal Kanojiya was the highest

bidder, in whose favour the sale certificate dated 6-5-1987 was

executed by the Chief Officer of Municipal Council, Akola. Thus,

Motilal Kanojiya also became the owner of the balance land of

1,440 sq.ft. along with 960 sq.ft. of land owned by Jokhan.

8. On 24-4-1991, Motilal Kanojiya sold the entire land of

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2,400 sq.ft to Jugalkishore Rathi and Shantilal Rathi by two

separate registered sale-deeds dated 23-4-1991 of 1,200 sq.ft. of

land each. The plaintiffs purchased the entire 2,400 sq.ft. of land

from the said Rathi brothers by two separate registered

sale-deeds dated 6-11-1995. The plaintiffs claimed that they

became the owners of the suit property and were also put in

possession of it, and on the basis of it, they filed a suit for

permanent injunction restraining the defendant from obstructing

their possession over the suit property.

9. The validity of the sale certificate dated 6-5-1987 was

challenged by Ramjiyawan by filing a separate suit, viz. Regular

Civil Suit No.118 of 1997, which was dismissed in default.

However, Ramjiyawan resisted the present suit filed by the

plaintiffs on the ground that he was in continuous possession of

the suit property, irrespective of all the transactions, and the

plaintiffs were, therefore, not entitled to a relief of permanent

injunction unless they prove their valid title over the suit

property. The defendant No.1-Ramjiyawan neither did claim

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ownership nor could claim it, as the property was sold in auction

by the Municipal Council to Motilalji Kanojiya on

6-5-1987. In such circumstances, the lower Appellate Court

could not have gone into the question of validity of the title of

the plaintiffs over the suit property, and hence the finding that

the sale certificate was inadmissible in evidence for want of

registration under Section 17(2)(xii) of the Registration Act

cannot be sustained. The substantial question of law framed on

25-7-2001 are answered accordingly.

10. On the question of possession, the lower Appellate Court

holds that since the plaintiffs have failed to establish their title

over the suit property, the presumption that the title follows the

possession, would not be available. The approach adopted by

the lower Appellate Court was totally misdirected. The defendant

himself had filed M.J.C. No.58 of 1992 for passing a final decree

in Regular Civil Suit No.564 of 1985 against his brother for

partition, in which it was stated in para 5 that the structure on

the plot in question was destroyed and it was an open plot. This

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was the statement made on 23-3-1992. The Court Commissioner

appointed in the said proceedings visited the spot and submitted

his report on 3-1-1995 stating therein that there was no

construction on the plot. The said M.J.C. Was dismissed on

28-8-1995 on the ground that Ramjiyawan lost his title to the

property on the basis of the sale certificate dated 6-5-1987.

Apart from this, there is also evidence on record, which is

considered by the Trial Court, suggesting that the plaintiffs have

established their possession over the suit property. There was no

basis for the lower Appellate Court to go behind the title of the

plaintiffs without considering the factual aspect of possession.

The findings recorded by the lower Appellate Court are perverse

and it cannot be said that the plaintiffs were not entitled to the

benefit of the principle that their title follows the possession and,

therefore, the presumption under Section 114 of the Evidence

Act was required to be drawn. The substantial question of law

framed on 29-11-2016 is answered accordingly.

11. In the suit, the appeal is allowed. The judgment and

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order dated 25-9-2000 passed by the lower Appellate Court in

Regular Civil Appeal No.55 of 2000, is hereby quashed and set

aside. The decree passed by the Trial Court is restored. No

order as to costs.

12. At the request of the learned counsel for the respondent-

defendant, the order of status quo granted by this Court shall

continue to operate for a period of six weeks from today, at the

end of which, it shall stand vacated.

JUDGE.

Lanjewar