Bombay High Court
Ramesh Babulal Lahire vs Laxmibai Dattatraya Lahire And ... on 6 May, 2016
Bench: T.V. Nalawade
1 SA 3 & 4 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 3 of 2013
* Ramesh S/o. Bhaulal Lahire,
Age 50 years,
Occupation : Hotel Business,
R/o Nageshwarwadi,
Aurangabad. .. Appellant.
Versus
1)
Laxmibai W/o Dattatraya Lahire
Age 65 years,
Occupation : Household,
R/o Near Bhaji Mandi,
Taluka Paithan,
District Aurangabad.
2) The Municipal Corporation
Aurangabad
Through its Commissioner
At Aurangabad. .. Respondents.
--------
Shri. Mujtaba Gulam Mustafa, Advocate, for appellant.
Shri. P.R. Katneshwarkar, Advocate, holding for Shri.
Nitin T. Tribhuwan, Advocate, for respondent No.1.
Respondent No.2 - formal party
--------
With
Second Appeal No. 4 of 2013
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2 SA 3 & 4 of 2013
* Ramesh S/o. Bhaulal Lahire,
Age 50 years,
Occupation : Hotel Business,
R/o Nageshwarwadi,
Aurangabad. .. Appellant.
Versus
1) Laxmibai W/o Dattatraya Lahire
Age 65 years,
Occupation : Household,
R/o Near Bhaji Mandi,
Taluka Paithan,
District Aurangabad.
2)
The Municipal Corporation
Aurangabad
Through its Commissioner
At Aurangabad. .. Respondents.
--------
Shri. Mujtaba Gulam Mustafa, Advocate, for appellant.
Shri. P.R. Katneshwarkar, Advocate, holding for Shri.
Nitin T. Tribhuwan, Advocate, for respondent No.1.
---------
CORAM: T.V. NALAWADE, J.
DATE : 6th MAY 2016
JUDGMENT:
1) Second Appeal No.3/2013 is filed against the
judgment and decree of Regular Civil Appeal No.232/2004
which was pending in the District Court Aurangabad.
Second Appeal No.4/2013 is filed against the judgment
3 SA 3 & 4 of 2013
and decree of Regular Civil Appeal No.462/2012 which
was also pending in the District Court Aurangabad. Both
the appeals were filed against the judgment and decree of
Special Civil Suit No.620/1996 which was pending in the
Court of the Civil Judge Senior Division Aurangabad. The
suit filed by the present appellant for the relief of
declaration, injunction and damages was dismissed by the
trial Court. Counter claim filed by present respondent
No.1 Laxmibai was also dismissed by the trial Court. Both
the sides had filed aforesaid first appeals in the District
Court. The appeal filed by Laxmibai is allowed by the
District Court and the relief of perpetual injunction is
given in her favour. Both the sides are heard.
2) The suit was filed in respect property bearing
Survey No.85/1 which, according to the plaintiff, is given
House No.4-14-91 in the record of the Municipal
Corporation. It is the case of the plaintiff that he is owner
of the suit property and he is in possession of the suit
property.
4 SA 3 & 4 of 2013
3) It is the case of the plaintiff that in respect of
Survey No.85 there was litigation between one Anwarulla
and his sister Amina Begum. It is contended that after the
decision of the said suit, execution proceeding was filed
by Amina Begum and in that execution proceeding, the
father of the plaintiff had taken objection to the execution.
It is contended that the entire survey number was in
possession of his father and the father was cultivating the
property. On some portion the plaintiff had made
construction for residential purpose. It is contended that
his father was tenant in possession. The plaintiff had
produced hand sketch map along with the plaint to show
the location of the disputed property. It is the case of the
plaintiff that in the execution proceeding Amina Begum
could not get possession of the disputed portion.
4) It is the case of the plaintiff that in the year
1988 he made some construction and he started running
one hotel in the suit property. It is contended that he has
obtained licence for running such hotel.
5 SA 3 & 4 of 2013
5) It is the case of the plaintiff that defendant
Laxmibai is his aunt on paternal side but she has no
concerned whatsoever with the suit property. It is
contended that husband of Laxmibai is a doctor and he is
influential person. It is contended that on 14-11-1996 by
joining hands with the officers of the Municipal
Corporation, defendant No.1-Laxmibai pulled down the
construction of the plaintiff which was present over the
suit property.
6) It is the case of the plaintiff that Laxmibai
obtained one Non Agricultural order in respect of the suit
property but this N.A. order is not binding on him. It is his
case that Laxmibai is claiming ownership over the suit
property on the basis of sale deed and she is causing
obstruction to the possession and so the cause of action
has taken place for the suit. The plaintiff had claimed
relief of declaration that he is owner of Survey No.85/1
which is given CTS No.4641. It is the case of the plaintiff
that House No.4-14-91 is entered in the record of the
Municipal Corporation as number of property bears CTS
4641. As the structure of the plaintiff was pulled down
6 SA 3 & 4 of 2013
by defendant No.2, Municipal Corporation, he had claimed
compensation of Rs.1.5 lakh from the Corporation.
7) Both, Laxmibai and the Municipal Corporation
contested the suit by filing separate written statements. It
is the case of Laxmibai, defendant No.1 that she has
purchased some portion of Survey No.85 from Amina
Begum under registered sale deed dated 3-9-1975. In the
written statement Laxmibai has given description of the
property purchased from Amina Begum including the
boundaries of the portion. It is her case that the
possession was handed over by Amina Begum and since
then she is enjoying the property as owner. It is the case
of Laxmibai that after the purchase, she had fixed two
name boards on the purchased portion but by blackening
the boards the plaintiff is trying to create obstruction to
the possession.
8) It is the case of the defendant No.1 that in the
municipal record her name came to be entered as owner
and as the person in possession and such entry was made
after following due procedure on 31-6-1976. It is her case
7 SA 3 & 4 of 2013
that her name was mutated in the city survey record also
after following the procedure and these changes were
never challenged by the plaintiff. It is her case that she
had obtained Non Agricultural use permission from the
authority and she has paid the charges for the same. It is
her case that in the year 1983 she had applied for
construction permission to the local body and such
permission was granted to her and the commencement
certificate was also issued in her favour. It is her case
that by spending Rs.50,000/- she had made construction of
wall of length of 135 feet, height of 10 feet and width of
13 inches. It is her case that she had started making
construction of the building and for the basement and she
had taken piles for making construction and caps on piles
and for that she had spent amount of Rs.one lakh.
9) It is the case of the defendant No.1 Laxmibai
that she was making construction for creation of shopping
complex and lodging & boarding. It is contended that
when the construction was going on, her husband became
seriously ill and she was required to shift him to Pune for
operation and then the construction was stopped.
8 SA 3 & 4 of 2013
10) The defendant No.1 denied that the plaintiff is
her relative. It is her case that the plaintiff is trying to
misuse the circumstance that husband of the defendant is
not in a position to take action and she is a lady. It is her
case that by creating false record the plaintiff is trying to
grab her property. It is her case that the plaintiff is trying
to trespass on her property and so her possession needs to
be protected by issuing order of injunction. For that she
had filed counter claim.
11) Defendant No.2, Municipal Corporation
contended that when its officers came to know that the
plaintiff was making construction illegally, they followed
the procedure by issuing notice under section 478(2) of
the Bombay Provincial Municipal Corporations Act and
then they pulled down the illegal construction. It is the
case of the Corporation that the plaintiff had refused to
accept the notice but he was present on the spot when the
action was taken. Panchanama was also made on 14-11-
1996. It is the case of the Corporation that statutory
notice as required under section 487 of the aforesaid Act
was not issued against the Corporation and so the suit is
9 SA 3 & 4 of 2013
not tenable.
12) On the basis of the aforesaid pleadings, issues
were framed. Both the sides gave evidence. The trial
Court had dismissed the suit by holding that the plaintiff
was not in possession and he was not the owner. The trial
Court had dismissed the counter claim by holding that no
court fees was paid on the counter claim. However, it was
also held that the defendant No.1 failed to prove her
possession as she was residing at Paithan.
13) The first appellate Court considered the
circumstance like application was filed for permission to
deposit Court fees by the defendant No.1 in the trial Court
and the court fees was also deposited. No order was made
by the trial Court on that application when the trial Court
gave the aforesaid finding. The first appellate Court
considered the circumstance that there was no
construction of the plaintiff over the suit property on the
date of the suit. The first appellate Court considered some
vital admissions given by the plaintiff and some record
which is in favour of the defendant No.1. In view of the
10 SA 3 & 4 of 2013
record and the admissions, the first appellate Court has
held that the defendant No.1 is the owner of the property.
The circumstance that in previous litigation objection was
taken by the father of the plaintiff and it was rejected on
merit is considered by the first appellate Court and relief
of injunction is given in favour of the defendant No.1 of
the present suit.
14) This Court admitted the appeals on 20-2-2013
on the following substantial question of law :-
"Whether the Courts below erred and recorded
perverse finding that the Appellant-Plaintiff is
not in settled possession ?"
15) From the pleadings in the plaint and the hand
sketch map annexed to the plaint, it can be said that the
plaintiff wanted to prove that he is owner of entire area of
Survey No.85/1. In the plaint he contended that his father
was tenant of entire area of Survey No.85. There was no
specific pleading as to when and who had put his father in
possession. There was no specific pleading as to how his
11 SA 3 & 4 of 2013
father or the plaintiff had become the owner of the suit
property. If his father was initially tenant, there is nothing
with the plaintiff to prove his title over the suit property.
Learned counsel for the plaintiff submitted that at least
injunction can be given in favour of the plaintiff as he had
made construction over the suit property, he was running
a hotel and his possession was settled possession.
16) It is not disputed that in the execution
proceeding filed by Amina Begum for getting possession
of one-third portion of Survey No.85, Bhaulal, father of the
plaintiff, had raised objection and that objection was
rejected on merit and that decision given by the Civil
Court has become final. There is record, which is
discussed at appropriate place, showing that on the basis
of the decree, name of Amina Begum was entered in the
revenue record and she was also shown in possession of
the area which was allotted to her in the partition suit.
The same area is sold by Amina Begum to defendant No.1.
Name of defendant No.1 is also shown in the assessment
record as the person in possession and her name was
mutated in the city survey record on the basis of the sale
12 SA 3 & 4 of 2013
deed executed in her favour by Amina Begum. In view of
these circumstances, burden was heavy on the plaintiff to
prove that he was in settled possession of the entire area
of Survey No.85/1 to which separate city survey number is
given.
17) Only during oral evidence, the plaintiff came
with a case that Anwarulla had given Survey No.85 in
possession of the father of the plaintiff for cultivation
purpose. There is no record of that nature also with the
plaintiff. On the other hand there is decision of the civil
Court by which such objection taken by the father of the
plaintiff was rejected.
18) The plaintiff has admitted in the cross
examination that Amina Begum had one-third share in
Survey No.85. He has admitted that the suit was decreed
and Survey No.85 was divided and area of 753 square
meter was allotted to the share of Amina Begum. Though
he tried to avoid to admit that possession of one-third
portion of the survey was given to Amina Begum in
execution proceeding, there is record like assessment
13 SA 3 & 4 of 2013
record and city survey record in that regard. He admitted
that area of 753 square meters was allotted to the share of
Amina Begum and this area was given No.4641/1 in city
survey record.
19) The plaintiff has not disputed that there is
pacca construction like construction of wall and
construction of piles with caps on the suit property. In the
evidence plaintiff had opportunity to explain the
construction. No particulars could be given by the plaintiff
as to who made the construction for him and as to who
had prepared the plan for the same. Admittedly, the
plaintiff had never obtained permission of local body for
making construction on the suit property. He also admits
that he had never applied to the authority for conversion
of the land to non agricultural purpose.
20) The plaintiff has tried to rely on the following
record :-
(i) House tax receipt in respect of House No.4-14-91
issued in July 1994. This receipt shows that it was issued
in favour of Shivlal, brother of the plaintiff. This Exhibit
14 SA 3 & 4 of 2013
130, assessment receipt, cannot help the plaintiff to prove
that he is owner. On the other hand it can be said that
other heirs of Bhaulal ought to have joined with the
plaintiff to claim relief of declaration of ownership.
(ii) Property Card of city survey No.4641. This document
shows that entire area of city survey No.4641 was 2912
square meters and then area of 753 square meters was
reduced from this area. There is mention on this
document showing that in view of the decision of Regular
Civil suit No.51/56 filed by Amina Begum this area was
allotted to her share. Names of legal representatives of
Bhaulal like plaintiff, Shivlal, Prakash, Pandurang and
others were also entered in this document.
(iii) Notice given by the Corporation dated 8-11-1996
(Exhibit 160). This record shows that on city survey
No.4641/1 temporary construction like shed was put up by
the plaintiff and the Corporation had taken action in that
regard.
15 SA 3 & 4 of 2013
21) The plaintiff has examined one witness to show
that he was running a hotel in the past on the suit
property. This evidence can be of no help. There was no
such construction and it cannot be said that the plaintiff
was in settled possession. Further, the assessment record
is in favour of Shivlal and not in favour of the plaintiff. It
cannot be said that it was the area in possession of the
plaintiff. The plaintiff obtained licence for his hotel that
too in the year 1994. This Court holds that this record
cannot be used in the present matter as that record shows
that it was in respect of city survey No.4641 for which
different house number is given by the local body.
22) The defendant No.1 had given evidence in
rebuttal and she has given evidence for cause of action in
respect of her counter claim. She has examined one Ashok
Kumar, Consulting Engineer to prove that the architect /
engineer was appointed to prepare the plan of
construction. Evidence is given by this witness that he
prepared the design of piles and caps. The plan prepared
by this witness is proved at Exhibit 180. One witness
Bansaram Wade, meson, is examined by the defendant
16 SA 3 & 4 of 2013
No.1 to prove that he had made construction of wall of
155 feet in length, 10 to 11 feet in height and width of 13
inches. There is also voluminous record created in the
Corporation about construction permission and in view of
that record there is no reason to discard the evidence of
these two witnesses of the defendant No.1. The Courts
below have believed these witnesses.
23) In support of her claim Laxmibai, defendant
No.1 has relied on the following record :-
(i) Sale deed executed by Amina Begum on 3-9-1975,
Exhibit 184. Description of the portion which was
belonging to Amina Begum in the past, which was handed
over to defendant No.1, is given in the sale deed and the
same portion is mentioned in the written statement by the
defendant No.1.
(ii) Exhibit 185, assessment record of local body of
house No.2-6-75/2 in the name of defendant No.1
Laxmibai.
17 SA 3 & 4 of 2013
(iii) Assessment record at Exhibit 186 which was in
favour of Amina Begum dated 4-11-1971. This record
shows that two Chalta numbers 74/1 and 74/2 were given
to this property.
(iv) Property Card of city survey No.4641/1 at Exhibit
187. It was prepared in the year 1982 and the name of
Laxmibai, defendant No.1 was entered on the basis of sale
deed.
(v) Construction plan dated 19-7-1983 approved by the
town planning authority of the local body in favour of
Laxmibai.
(vi) Public notice published in news paper by Laxmibai
before purchasing the suit property, Exhibit 189.
(vii) N.A. order dated 21-12-1995 issued in favour of
defendant No.1 and it is in respect of area of 753 square
meters.
18 SA 3 & 4 of 2013
(viii) Exhibit 193 record of construction permission of the
year 1983 like application, permission given by the
Municipal Corporation.
(ix) Exhibit 196 copy of complaint given against the
adjacent owner by Laxmibai in the year 1985 that he was
causing nuisance.
24) The aforesaid voluminous record is consistent
with the case of defendant No.1. It shows that she was in
possession and the plaintiff was trying to grab the
property by making trespass on it. The trial Court gave
finding that defendant No.1 was residing at Paithan along
with her family. But that does not mean that she was not
in possession of the suit property. Some record was
confronted with the plaintiff but the plaintiff has given
evasive answers in that regard. It is already observed that
for the relief of declaration suit ought to have been filed
by all the successors of Bhaulal if it was the property
received from Bhaulal. The opportunity was lost by
defendant No.1 to prove the correspondence which was
between Shivlal and the husband of the defendant No.1.
19 SA 3 & 4 of 2013
This record could have thrown more light on the nature of
relationship between the two families. It is clear that
Shivlal has kept himself away from the Court and the
appellant wants to grab the property by creating such
litigation.
25) The discussion made above shows that only
with a view to grab the property of the defendant No.1,
plaintiff did some illegal act. In view of the above
discussion it is difficult to accept the contention that the
plaintiff was in settled possession. This Court holds that
the relief of injunction also could not have been given in
favour of the plaintiff.
26) The learned counsel for the appellant, plaintiff
has placed reliance on following reported cases :-
(1) 2011 (6) ALL MR 681 (Krishna Hari Vaingankar v.
Tukaram Bhiva Vaingankar).
(2) 2010 (6) ALL MR 852 (Maroti Jairam Kadam v.
Mahadu Govind Kadam).
(3) 2011 (2) Mah L R 431 (SC) (Mrutunjoy Sett v.
Jadunath Basak).
20 SA 3 & 4 of 2013
(4) 2014 (1) ALL MR 41 (Azeem Jagania v. Behram
Tejani).
(5) AIR 2004 SC 4609 (Rame Gowda v. M. Varadappa
Naidu).
(6) 2012 (5) ALL MR 462 (SC) (Union of India v. Ibrahim
Uddin).
(7) AIR 1975 SC 1674 (Puran Singh v. The State of
Punjab).
The facts and circumstance of each and every case are
always different.
27) In view of the above, this Court holds that no
error is committed by the first appellate Court in giving
relief of injunction in favour of the defendant No.1 and
refusing the relief in favour of the plaintiff.
28) In the result, both the appeals stand dismissed.
Learned counsel for the appellant seeks continuation of
the stay to the injunction decree. It is refused.
Sd/-
(T.V. NALAWADE, J. )
rsl
