Bombay High Court
1. Bhujanga Abba Patil And Others vs 1. Dnyanu Ramchandra Powar S/D 1A. ... on 26 October, 2016
Bench: R.D. Dhanuka
ppn 1 sa-209.94 (j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.209 OF 1994
1. Bhujanga Abba Patil (since deceased) )
through his legal heirs )
A. Smt. Bayanabai Bhujanga Patil )
Age about 70 years, Occu : Household. )
B. Smt. Indubai Bapu Nirukhe )
Age about 53 years, married daughter, )
Occu : Household. )
Nos.1A & 1B residing at Aadur,
ig )
Tal.Karveer, District Kolhapur. )
C. Sou. Anandi Dinkar Patil )
Age about 52 years, Occu : Household. )
married daughter, residing at Mhalunge, )
Tal.Karveer, District Kolhapur. )
D. Shri Bajirao Bhujanga Patil )
Age about 55 years, Occu : Agri. )
Residing at Aadur, Tal.Karveer, )
District Kolhapur. )
2. Antu Kondiba Charankar )
Age 65 years. )
3. Dattatraya Ganpati Parit )
Age 55 years. )
4. Sindhu Mahaku Dhangar )
Age 70 years )
All agriculturists, residents of Aadur, )
Tal.Karveer, District Kolhapur. ) .. Appellants
(original plaintiffs)
VERSUS
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1. Dnyanu Ramchandra Powar (since deceased) )
through his legal heirs and representatives )
1A. Muktabai Bh.Dnyanu Powar )
Age 70 years. )
1B. Shivaji Dnyanu Powar )
Age 25 years. )
Both residents of Adur, Tal.Karveer, Dist.Kolhapur)
1C. Sou.Shalutabi Bhagwan Satpute )
Age 40 years, Household. )
residing at Koge, Tal.Karveer, Dist. Kolhapur)
1D. Dhondubai @Sharada Eknath Bhosale )
Age 40 yeas, Household,
residing at Sangrul, Tal.Karveer, Dist.Kolhapur.)
2. Sadu Krishna Powar (since deceased) )
through his legal heirs and representatives )
2A.Bhima Sadu Powar )
Age 53 years, Occu: Agriculturists. )
2B. Bandu Sadu Powar )
Age 43 years, Occu: Agriculturists. )
Both residents of Aadur, Tal.Karveer, Dist.Kolhapur)
3. Dattu Krishna Powar )
Age 65 years. )
4. Ramu Hari Powar )
Age 70 years. )
5. Vithal Ramchandra Powar )
Age 78 years. )
6. Tukaram Ramchandra Powar )
Age 60 years. )
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7. Ashok Ramchandra Powar )
Age 45 years. )
8. Smt.Chandabai Bh.Dadu Powar )
Age 58 years. )
All agriculturists, residents of Aadur, )
Tal.Karveer, Dist.Kolhapur. ) .. Respondents
(original defendants)
----
Mr.Kiran Pawar i/by Mr.B.R. Patil for the appellants.
Mr.N.J. Patil for the respondents.
----
CORAM : R.D. DHANUKA, J.
RESERVED ON
ig : 13th October 2016
PRONOUNCED ON : 26th October 2016
Judgment :-
. By this petition filed under Section 100 of the Code of Civil
Procedure, 1908, the appellants now through legal heirs and
representatives (original plaintiffs) have impugned the judgment and
decree dated 29th July 1993 passed by the learned 4th Additional District
Judge, Kolhapur allowing the Regular Civil Appeal No.277 of 1987 filed
by the respondents (original defendants) and dismissing the cross-
objection filed by the appellants. The first appellate Court has set aside
the judgment and decree dated 16th October 1987 passed by the learned
IInd Joint Civil Judge, Junior Division, Kolhapur in Regular Civil Suit
No.217 of 1979 filed by the original plaintiffs inter alia praying for
injunction and for possession which was decreed by the learned trial
Judge. The parties in this judgment are described as per their original
status in the proceedings before the learned trial Judge. Some of the
relevant facts for the purpose of deciding this second appeal are as
under :-
ppn 4 sa-209.94 (j).doc
2. It was the case of the plaintiffs that the suit field bearing
Revision Survey No.24/1 admeasuring 4 acres 9 gunthas plus khara 11
ares assessed at Rs.19.81 now block no.61 situated at Village Aadur,
Tal.Karveer, Dist.Kolhapur is owned and was in use and occupation of
the plaintiffs. The said field was purchased by the plaintiffs from
Mahadev Dattatray Chavan by registered sale deed on 27 th May 1964
and since then the plaintiffs were in use and occupation of the said field.
3. It was the case of the plaintiffs that adjoining to the said field
owned by the plaintiffs on the western
ig side, there is field of the
defendants bearing Revision Survey No.24/1 now block no.30. It was
the case of the plaintiffs that the field of the plaintiffs and field of the
defendants were from original Revision Survey No.24.
4. It is the case of the plaintiffs that the field of the defendants
was admeasuring 6 acres 29 gunthas which was situated towards western
side of the suit property. Before the year 1959, Hissa measurement took
place at village Aadur and the suit property was numbered as revision
Survey no.24 Hissa No.2. It was the case of the plaintiffs that under the
wrong description of the property mentioned in the sale deed of the
defendants, the defendants encroached upon the suit property which
belonged to and was purchased by the plaintiffs.
5. It was the case of the plaintiffs that the defendants gave
threat to the plaintiffs on 1st March 1979. The plaintiffs were constrained
to file the suit for perpetual injunction against the defendants inter alia
praying for injunction restraining the defendants from resorting to high
handed action. The plaintiffs made an application for amendment in the
ppn 5 sa-209.94 (j).doc
plaint. It was averred that the plaintiffs' suit field block no.61 was
inclusive of north-south bandh running between the field of the plaintiffs
and the defendants. In the survey map, it has been shown that the
defendants had encroached to the extent of 45 ares in the field of the
plaintiffs. It was alleged in the plaint that the encroachment had been
made by the defendants some time in the month of January 1976. The
plaintiffs thus prayed for possession of the encroached portion from the
defendants and also prayed for future mesne profits from the date of
filing of the suit.
6.
The defendant nos.1, 6 and 7 filed written statement
resisting the said suit. The said written statement was adopted by the
defendant nos.2 to 5 and 8 by filing purshis. The defendants had also
filed an additional written statement.
7. The learned trial Judge framed seven issues. The plaintiffs
examined Dattatraya Ganapati Parit, plaintiff no.3 and also examined
Surveyor Mahadev Dhage. The defendants examined Tukaram
Ramchandra Power, defendant no.6 and one Yeshwant Dattoba Chavan.
8. The learned trial Judge passed a judgment and decree dated
16th October 1987 and decreed the said suit filed by the plaintiffs and
directed the defendants to hand over the possession of 45 ares to the
plaintiffs as shown in the sketch with red pencil shade and marked as
C. D. F. E.
9. Being aggrieved by the said judgment and decree dated 16th
October 1987 passed by the learned trial Judge, the defendant nos.1 to 8
ppn 6 sa-209.94 (j).doc
filed Regular Civil Appeal (277 of 1987) in the Court of learned District
Judge, Kolhapur at Kolhapur. The original plaintiffs filed a cross-
objection in the said appeal. The learned 4 th Additional District Judge,
Kolhapur framed eight points for determination and allowed the said
Regular Civil Appeal (277 of 1987) filed by the defendant nos.1 to 8 with
costs and dismissed the cross-objection filed by the plaintiffs. By the
said judgment and decree dated 29th July 1993, the first appellate Court
has set aside the judgment and decree passed by the learned trial Judge
on 16th October 1987 in Regular Civil Suit No.217 of 1979. This
judgment and decree dated 29th July 1993 passed by the first appellate
Court is impugned by the plaintiffs in this second appeal filed under
Section 100 of the Code of Civil Procedure, 1908. The original plaintiff
no.1 expired during the pendency of this second appeal and thus his legal
heirs and representatives brought on record.
10. The first appellate Court while admitting this second appeal
formulated a substantial question of law as under :-
"The question as to whether the boundaries or the area mentioned
in a sale deed is to prevail will have to be conclusively resolved."
11. Mr.Pawar, learned counsel appearing for the original
plaintiffs invited my attention to the averments made in the plaint, copy
of the Kabjepatti Panchnama, mutation entry and various portions of the
oral evidence led through various witnesses of both the parties. He
submits that initially the plaintiffs had filed a suit simplicitor for
perpetual injunction but the plaint was subsequently amended. The
plaintiffs had applied for removal of encroachment against the
defendants. It is submitted by the learned counsel for the plaintiffs that
ppn 7 sa-209.94 (j).doc
larger plot forming part of original block no.24 jointly belonged to
Yeshwant Dattoba Chavan and his step brother Mahadev Dattatray
Chavan. There was a compromise decree in the said dispute filed by
the said two brothers.
12. The T.I.L.R., Kolhapur was appointed to divide the property
between the said two brothers. The said T.I.L.R. after taking measurement
of the property had divided the said plot bearing original Gat no.24 into
two parts which were specifically shown as Gat No.24/1 and 24/2. 6 acres
and 20 gunthas land was given to the said Yeshwant Dattoba Chavan and
4 acres and 30 gunthas land was given to his step brother Mahadev
Dattatray Chavan who transferred the said land coming to his share vide
a sale deed in favour of the defendants. It is submitted that in the sale
deed executed by the said Mahadev Dattatray Chavan in favour of the
defendants, the area of the land was clearly mentioned as 6 acres and 20
gunthas. In support of this submission, learned counsel for the plaintiffs
invited my attention to the Kabjepatti prepared in the year 1957. It is
submitted by the learned counsel for the plaintiffs that the defendants,
however, encroached upon the portion of the land which was purchased
by the plaintiffs from the brother of the said Mahadev Dattatray Chavan.
The encroachment was noticed sometime in the year 1976. The plaintiffs
had accordingly filed a suit initially for perpetual injunction and later
applied for removal of the encroachment by the defendants.
13. Learned counsel for the plaintiffs invited my attention to the
issues framed by the learned trial Judge and also various findings
rendered in the judgment and decree passed by the learned trial Judge on
16th October 1987. He submits that the learned trial Judge has recorded a
ppn 8 sa-209.94 (j).doc
finding that on the date of suit, plaintiffs were in possession of Revision
Survey No.24/2 excepting 45 ares. The learned trial Judge held that it
was not correct that the defendants made encroachment of 45 ares in
January 1976. However, their possession was unlawful.
14. In so far as the issue as to whether the plaintiffs were
entitled to decree for perpetual injunction, the learned trial Judge held
that the said issue did not arise. The learned trial Judge held that the
plaintiffs were entitled to decree for possession of encroachment portion
against the defendants. The learned trial judge rejected the claim for
mesne profit against the defendants. The learned trial Judge noticed that
the defendants had made encroachment only to the extent of 45 ares
land of the plaintiffs. The plaintiffs had also filed a suit bearing No.327
of 1976 against the defendants inter alia praying for injunction from
disturbing the use and occupation of the plaintiffs in respect of the land
bearing Revision Survey No.24/2 admeasuring 4 acres 20 gunthas. The
said suit was withdrawn by the plaintiffs.
15. It is submitted by the learned counsel for the plaintiffs that
the first appellate Court has erroneously held that the boundaries
mentioned in the sale deed executed by the erstwhile owner in favour of
the defendants would prevail the measurement mentioned therein. He
submits that since the measurement of the land as 6 acreas 20 gunthas
was specifically mentioned in the sale deed as the title conferred upon
the defendants in the specific portion of the land, the boundaries
mentioned in the sale deed would not prevail. He submits that T.I.L.R.
after dividing the property physically had given specific area of the land
admeasuring 6 acres 20 gunthas to the erstwhile owner Mahadev
ppn 9 sa-209.94 (j).doc
Dattatray Chavan. The said erstwhile owner had subsequently sold the
area to the defendants. He submits that the first appellate Court relied
upon various judgments while holding that the boundaries mentioned
in the sale deed would prevail over the measurement mentioned in the
sale deed erroneously. He submits that none of those judgments were
applicable to the facts of this case in view of the fact that the area of suit
plot was clearly mentioned in the sale deed. He submits that the false
description of the boundaries in the sale deed thus would not prevail over
the exact measurement mentioned in the sale deed. He submits that
even otherwise the western boundaries mentioned in the sale deed of the
defendants does not indicate that the land was sold right upto the
footpath.
16. It is submitted by the learned counsel for the plaintiffs that
vendor of the suit property who executed sale deed in favour of the
defendants in his evidence clearly admitted that he had sold the land
admeasuring 6 acres 20 gunthas to the defendants. He submits that since
the suit filed by the plaintiffs was based on title, Article 65 of the
Limitation Act was applicable. The suit filed by the plaintiffs was thus
within the time prescribed therein. He submits that the plaintiffs can
file a suit any time for removal of encroachment based on title. The
defendants have to prove that their title in respect of encroached portion
was hostile to the title of the plaintiffs.
17. It is submitted that the plaintiffs had proved their title in
respect of the entire property which was sold in favour of the plaintiffs
by erstwhile owner including the encroached portion which was illegally
occupied by the defendants. Learned counsel for the plaintiffs placed
ppn 10 sa-209.94 (j).doc
reliance on the judgment of the Supreme Court in the case of Indira Vs.
Arumugam & Anr., reported in (1998) 1 SCC 614 and in particular
paragraph 4 in support of his submission that since the plaintiffs had
filed a suit based on their title for possession and since the plaintiffs
had established their title in respect of the suit property including the
encroached portion and since the defendants had failed to prove their
adverse possession for prescriptive period, the plaintiffs cannot be non-
suited on the ground of limitation.
18. Learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in the case of P.T. Munichikkanna
Reddy & Ors. Vs.Revamma & Ors., reported in 2007 (6) Mh.L.J. 336
(SC) and in particular paragraphs 33, 34, 57 and 58 and would submit
that once the plaintiffs had proved their title in respect of the suit
property, the onus of proof would be on the defendants to prove claims
of their title by adverse possession. He submits that the defendants have
failed to prove that adverse possession was in continuity, in publicly
and that their possession became adverse to the title of the plaintiffs
which they failed to prove.
19. It is lastly submitted that the first appellate Court
erroneously rejected the cross-objection filed by the plaintiffs and that
the impugned judgment and decree passed by the first appellate Court
allowing the appeal filed by the defendants is perverse and contrary to
the law and thus deserves to be set aside.
20. Mr.Patil, learned counsel appearing for the defendants, on
the other hand, submits that admittedly the suit filed by the plaintiffs was
ppn 11 sa-209.94 (j).doc
based on the plea of encroachment. He submits that the sale deed
executed by the erstwhile owner in favour of the plaintiffs was much
after the possession of the suit property handed over to the defendants
by the erstwhile owner of the said portion of the land and thus there was
no question of the defendants encroaching upon any part of the suit
property as alleged by the plaintiffs. He submits that the suit filed by
the plaintiffs on the basis of the alleged encroachment of the portion of
the land by the defendants itself was thus not maintainable and was thus
rightly dismissed by the first appellate Court. He submits that owner of
the suit property had admitted in his evidence that the defendants were
placed in possession of the land admeasuring 7 acres 32 gunthas which
was inclusive of the land admeasuring 45 ares which was alleged to be
the encroached portion according to the plaintiffs. He submits that
admittedly the plaintiffs had purchased the suit property only in the year
1964.
21. It is submitted by the learned counsel for the defendants that
the original plaintiffs and the original defendants were tenants prior to
1953 in respect of the land bearing Gat No.24 and were cultivating the
said land together. The original defendants had purchased the property
under the sale deed executed in the year 1953 admeasuring 6 acres 20
gunthas from the erstwhile owner of the suit property. He submits that in
the said sale deed, the erstwhile owner had admitted that he had put the
original defendants in possession of 7 acres 32 gunthas as shown in the
boundaries described in the sale deed.
22. It is submitted by the learned counsel for the defendants that
since the defendants were in possession of the area i.e. 45 ares claimed
ppn 12 sa-209.94 (j).doc
to be owned by the plaintiffs since prior to the date of the execution of
the sale deed in favour of the plaintiffs by the erstwhile owner, the
remedy of the plaintiffs would not be for removal of the alleged
encroachment against the defendants but was against their vendor who
had alleged to have given possession of lessor area and not the actual
area sold in their favour.
23. Learned counsel for the defendants invited my attention to
the findings recorded by the first appellate Court and in particular
paragraph 11 of the judgment and decree dated 29th July 1993 and
submits that the first appellate Court has rightly rendered a finding that
the defendants were in possession of Gat No.30 including the read
portion C D F E i.e. the alleged encroached portion since 1953. He
submits that the first appellate Court has rightly considered the deposition
of the vendor in so far as the issue of boundaries of the plot mentioned
therein is concerned and has rightly rendered a finding that the evidence
on record clearly showed that since the defendants had purchased the
portion of the land bearing Revision Survey No.24 from Yeshwant
Dattoba Chavan, they were in peaceful possession of that portion of
Revision Survey No.24 with the specific boundaries. It is held that the
plaintiffs were never in possession of the land which was shown as
encroached land by the defendants admeasuring 45 ares and the same
was in possession of the defendants since beginning i.e. the date when
they had purchased the land from Yeshwant Dattoba Chavan on 26 th
May 1953.
24. Learned counsel for the defendants also placed reliance on
paragraphs 21 and 22 of the impugned judgment and decree in which it is
ppn 13 sa-209.94 (j).doc
held that since the plaintiffs were never in possession of the alleged
encroached land of 45 ares and since the defendants were in possession
of the land since beginning as it was part of the land purchased by them
from Yeshwant Dattoba Chavan, it could not be said that they had
made encroachment in respect of the said land. The first appellate Court
has also held that the plaintiffs had no right in the land shown in red
portion of the map exhibit-89 and were thus not entitled for perpetual
injunction against the defendants.
25. Learned counsel for the original plaintiffs in rejoinder
invited my attention to the evidence of Yeshwant Dattoba Chavan,
erstwhile owner of the plot bearing Revision Survey No.24. He submits
that in his examination-in-chief, the said Yeshwant Dattoba Chavan
had admitted that out of the said plot, he had sold 6 acres 20 gunthas to
the defendants and in respect thereof, there was the sale deed executed.
The said witness also referred to the suit bearing no.49 of 1953 filed by
his step brother Mahadev Dattatray Chavan and others for partition. The
said land was also included in the said suit for partition. The partition
was effected through Collector. In his cross-examination, he had admitted
that there was a compromise between the said Yeshwant Dattoba
Chavan and the said Mahadev Dattatray Chavan and others. 6 acres 20
gunthas were to be kept with Yeshwant Dattoba Chavan and 4 acres
19 gunthas were given to Mahadev Dattatray Chavan. The said
compromise had taken place in the year 1954. In his cross-examination,
he had also admitted that at the time of sale of 6 acres 20 gunthas in
favour of the defendants, its assessment was also mentioned.
ppn 14 sa-209.94 (j).doc
26. It is submitted by the learned counsel for the plaintiffs that it
was thus clear beyond reasonable doubt that the evidence of erstwhile
owner from whom the defendants claimed title in respect of the suit
property had clearly admitted in his evidence that he was given 6 acres
20 gunthas under the said compromise decree in a partition suit bearing
no.49 of 1953 and his step brother through whom the plaintiffs were
claiming right, title and interest was given the land admeasuring 4 acres
19 gunthas. He submits that the first appellate Court has rendered a
finding in favour of the defendants that erstwhile owner of the suit
property had sold larger area in favour of the defendants is ex facie
perverse. He submits that since the said erstwhile owner Yeshwant
Dattoba Chavan himself had been granted the land 6 acres 20 gunthas,
he could not have handed over the possession of the larger area than
what was allotted to him under the said compromise decree passed in the
partition suit.
27. Learned counsel for the plaintiffs invited my attention to
Kabjepatti which was prepared when the partition of the property was
effected by T.I.L.R. pursuant to the compromise decree passed in suit
bearing no.49 of 1953 and also placed reliance on the mutation entry
carried out after such physical partition of the said property. He submits
that the learned trial Judge has rightly placed reliance on such document
to which my attention is invited by the learned counsel for the plaintiffs
and would submit that it was rightly held by the learned trial Judge after
considering the oral and documentary evidence that the erstwhile owner
of the land got possession of 4 acres 30 gunthas which was given by him
to the defendants. He submits that the first appellate Court has not
ppn 15 sa-209.94 (j).doc
considered the oral and documentary evidence in right perspective and
thus the said judgment and decree of the first appellate Court deserves to
be set aside.
REASONS AND CONCLUSIONS :-
28. A perusal of the plaint filed by the plaintiffs indicates that it
was the case of the plaintiffs that the defendants had encroached upon
the portion of the land admeasuring 45 ares in the month of January 1976
which encroachment was shown in the measurement map. There is no
dispute that the original plot was bearing Survey No.24. It was the case
of the defendants themselves that upto 1953, the plaintiffs and the
defendants were jointly cultivating the land bearing original Survey
No.24. The defendants purchased western portion of the said land from
Yeshwant Dattoba Chavan vide a registered sale deed. It was the case
of the defendants that when the said property was purchased by the
defendants, the said portion was not measured. In his oral evidence,
one of the defendants i.e. Tukaram Ramchandra Power deposed that he
was in possession of the land upto footpath and since the date of
possession, he continued to be in possession of that portion of land.
29. In the evidence, the said witness relied upon the compromise
deed entered into between Yeshwant Dattoba Chavan and his step brother
Mahadev Dattatray Chavan. As per the Darkhast, the said property was
partitioned and was given the revised Survey Nos.24/1 and 24/2. In that
Darkhast, a map was drawn. In his cross-examination, the said witness
had admitted that in the sale deed, it was stated that the defendants had
purchased the land of 6 acres 20 gunthas and in 7x12 extract, they had
ppn 16 sa-209.94 (j).doc
not been shown to be in possession of 7 acres 32 gunthas. He admitted
that in 7x12 extract of 1954-55 to 1956-57, they had been shown in
possession of 6 acres 20 gunthas and the plaintiffs were shown in
possession of 4 acres 29 gunthas.
30. The said witness further admitted that the Survey No.24/1
was converted into Block No.30 and the said block was admeasuring 6
acres 29 gunthas whereas, Survey No.24/2 was formed into Block No.61
admeasuring 4 acres 30 gunthas. He did not make any complaint
anywhere that though he was alleged to be in possession of 7 acres 32
gunthas he had been shown to have been occupied the land admeasuring
6 acres 30 gunthas. He further admitted in his cross-examination that
the erstwhile owner had sold 6 acres 20 gunthas to the defendants on
26th May 1953 vide the said sale deed and they became owner through
Yeshwant Dattoba Chavan.
31. A perusal of the evidence of the said Yeshwant Dattoba
Chavan who was examined as a witness by the defendants and who
was the erstwhile owner of the land admeasuring 6 acres 20 gunthas
which were sold in favour of the defendants clearly indicates that the
said witness admitted in his evidence that the contents of the sale deed
executed in favour of the defendants were correct. He admitted that
under the said sale deed, he had sold to the defendants the land comprises
of 6 acres 20 gunthas. He also referred to the partition suit bearing no.49
of 1953 filed by his step brother Mahadev Dattatray Chavan and
others inter alia praying for partition. He also admitted that the land
bearing original Survey No.24 was also the subject matter of the said
suit.
ppn 17 sa-209.94 (j).doc
32. The said erstwhile owner admitted that there was a
compromise between him and his step brother Mahadev Dattatray
Chavan and others. The land admeasuring 6 acres 20 gunthas was
allotted to him out of Survey No.24 and the land admeasuring 4 acres
19 gunthas was allotted to his step brother Mahadev Dattatray Chavan
and others. It is thus clear beyond reasonable doubt that on physical
partition of the suit property carried out through T.I.L.R. pursuant to the
compromise decree passed in the suit bearing no.49 of 1953, Yeshwant
Dattoba Chavan was allotted the land admeasuring 6 acres 20 gunthas
whereas, his step brother Mahadev Dattatray Chavan and others were
allotted the land admeasuring 4 acres 19 gunthas and were also handed
over the possession of their respective portion of the land.
33. It is also not in disupte that the said area was also mentioned
in Kabjepatti and based thereon, the name of the respective owners were
recorded in the 7x12 extract which also showed their possession of the
respective area allotted to them under the said compromise decree passed
in partition suit. In my view, since the erstwhile owner through whom
the defendant were claiming right, title and interest had admittedly been
given the land admeasuring 6 acres 20 gunthas and was handed over
possession of that specific area under the partition deed which partition
was carried out by metes and bounds by the T.I.L.R., he could not have
handed over possession of the land admeasuring 7 acres 32 gunthas to
the defendants. The witness examined by the defendants also admitted
that the names of the defendants were shown in the 7x12 extract only in
respect of the 6 acres 20 gunthas and not the area falsely claimed by
the defendants in the suit. He did not make any grievance alleging that
ppn 18 sa-209.94 (j).doc
though he was in possession of the larger area, his name was wrongly
shown in the 7x12 extract only in respect of the land admeasuring 6
acres 20 gunthas.
34. A perusal of the order passed by the learned trial Judge
indicates that the learned trial Judge has framed seven issues. After
considering the oral and documentary evidence led by the parties, the
learned trial Judge has held that the defendants did not dispute that they
had purchased the plot bearing Revision Survey No.24/2 admeasuring 6
acres 29 gunthas as was clear from the sale deed being exhibit-97
executed between the defendants and the erstwhile owner. The defendants
however claimed to be in possession of 7 acres 32 gunthas since the date
of purchase in 1953. The learned trial Judge has rendered a finding that
the defendants had failed to produce any document to indicate that they
were cultivating 7 acres 32 gunthas since 1953. The 7x12 extract
produced by the defendants also indicated that they were in use and
occupation of 6 acres 29 gunthas from 1974-75 till 1978-79. It was the
case of the plaintiffs that the defendants were in possession of encroached
portion since 1953 as claimed by the defendants.
35. Learned trial Judge also considered the report submitted by
the Surveyor who was appointed to make survey bearing Revision Survey
Nos.24/1 and 24/2. The Surveyor Mr.Mahadev was examined as PW1.
After considering the surveryor's report, the learned trial Judge has
rendered a finding that the defendants had made encroachment in the land
bearing Revision Survey No.24/2 belonging to the plaintiffs to the extent
of 45 ares as shown in the sketch in red pencil shade and marked CD F E.
ppn 19 sa-209.94 (j).doc
36. Learned trial Judge accordingly held that the plaintiffs had
proved their possession of land bearing Revision Survey No.24/2 except
45 ares. Learned trial Judge held that it was not correct that the
defendants made encroachment of 45 ares in January 1976. However,
their possession was unlawful.
37. A perusal of the judgment and decree of the first appellate
Court indicates that the learned trial Judge has formulated eight points
for determination. The first appellate Court after considering the
evidence of erstwhile owner Yeshwant Dattoba Chavan of
ig Revision
Survey No.24/1 i.e. Gat No.30 and Revision Survey No.24/1 i.e. Gat
No.61 has held that the intention of the said Yeshwant Dattoba Chavan
was to sell the land to the defendants upto footpath. It is held that the
said evidence clearly showed that the said erstwhile owner had sold the
portion of his land not of particular area admeasuring 6 acres 20 gunthas
but had sold particular area having the particular boundaries.
38. The first appellate Court has held that evidence of Tukaram
Ramchandra Power (DW-1), Yeshwant Dattoba Chavan (DW-2) indicated
that the defendants were in possession of portion of the land of the
original Revision Survey No.24 having those boundaries which were
enumerated in the sale deed. The first appellate Court accordingly held
that boundaries described in the sale deed would prevail over the
measurement written in it. In my view, the finding rendered by the first
appellate Court to the extent that the said erstwhile owner Yeshwant
Dattoba Chavan had sold the portion of the land not of particular area
admeasuring 6 acres 20 gunthas but had sold particular area having the
ppn 20 sa-209.94 (j).doc
particular boundaries is ex facie perverse and is contrary to the
admissions made by the said Yeshwant Dattoba Chavan and also the
evidence of Tukaram Ramchandra Power.
39. The said Yeshwant Dattoba Chavan had categorically
admitted in his examination-in-chief itself that he had sold 6 acres 20
gunthas to the defendants out of Survey No.24. The said erstwhile owner
also admitted in his evidence that there was a compromise between him
and Mahadev Dattatray Chavan and others. 6 acres 20 gunthas were
allotted to the said Yeshwant Dattoba Chavan whereas, the land
admeasuring 4 acres 19 gunthas were given to Mahadev Dattatray
Chavan. Tukaram Ramchandra Power (DW-1) examined by the
defendants also in his cross-examination admitted that in the 7x12
extract, he had not been shown to be in possession of 7 acres 32 gunthas.
He admitted that in 7x12 extract of Survey No.24/1, the land of 6 acres
20 gunthas was shown and in respect of Survey No.24/2, the land of 4
acres 29 gunthas was shown. He did not make any complaint to any
authority contending that though he was in possession of 7 acres 32
gunthas, his name was shown in the 7x12 extract occupying less than of
7 acres 32 gunthas.
40. In my view, the findings thus rendered by the first appellate
Court are totally overlooking and contrary to the deposition made by
witnesses examined by the defendants and more particularly erstwhile
owner of the said property who was the best witness to prove the area
of the land sold to the defendants and the area in respect of which
possession was handed over to the defendants. In my view, similarly the
ppn 21 sa-209.94 (j).doc
finding of the first appellate Court that the possession of the portion of
the land shown in red colour by letters C D F E in the map Exhibit-89
was in possession of the defendants as owner since beginning or that
the plaintiffs were never in possession of the said portion admeasuring
45 ares is ex facie perverse and contrary to the documentary as well as
oral evidence on record.
41. In my view, since the erstwhile owner Yeshwant Dattoba
Chavan himself was allotted the land admeasuring 6 acres 20 gunthas
while effecting partition of the property bearing original Survey No.24
through T.I.L.R. which documents were placed on record and were duly
proved, the said Yeshwant Dattoba Chavan could not have alienated the
land more than what was allotted to him in partition or could not have
handed over the possession of the land more than what was allotted to
him. The finding of the first appellate Court, in my view, is totally
contrary to the admitted and proved evidence on record and thus deserves
to be set aside.
42. In so far as the view taken by the first appellate Court that
the boundaries mentioned in the sale deed in this case would prevail
over the measurement shown in the sale deed is concerned, in my view,
the said observation made by the first appellate Court is also totally
perverse. The erstwhile owner of the said property himself admitted in
the examination-in-chief and also in the cross-examination that he had
sold the land admeasuring 6 acres 20 gunthas to the defendants vide a
sale deed which was duly registered, the boundaries of the plot described
in the sale deed showing the larger area, if any, was of no significance.
ppn 22 sa-209.94 (j).doc
43. In my view, since the area of the plot agreed to be sold to
the defendants by the erstwhile owner was clearly mentioned in the sale
deed which was duly admitted and confirmed by the erstwhile owner of
the said land himself and also admitted and confirmed by the witnesses
examined by the defendants, reference to the boundaries of the plot
mentioned in the sale deed as conclusive by the first appellate Court is
totally perverse and illegal. In my view, only if the area of the plot
would not have been mentioned clearly in the sale deed, in that event, the
boundaries mentioned in the sale deed would be of some relevance and
not otherwise. The learned counsel for the plaintiffs is right in his
submission that since specific area of the land was sold by the erstwhile
owner to the defendants which was specifically mentioned in the sale
deed, the finding/observation of the first appellate Court that the
boundaries would prevail is ex facie perverse and the said submission
deserves acceptance.
44. The Madras High Court in the case of Dina Malar
Publications, A Tamil Daily, Reptd., by its Partner, R.K.
Krishnamoorthy Vs. The Tiruchirapalli Municipality, Reptd., by its
Executive Authority, The Commr., reported in (1983) 2 MLJ 340
(Madras) has held that in case of doubtful or varying extents in the
documents of title relating to the property, boundaries should be preferred
to the extent. It is held that this principle can be applied only to a case
where there is an element of doubt with reference to the extent of the
area sold. In my view, since the area of the land sold to the defendants
was absolutely clear in the sale deed itself which was duly proved by the
documentary as well as the oral evidence, the question of the boundaries
ppn 23 sa-209.94 (j).doc
prevailing over the area of the land mentioned in the sale deed did not
arise. In my view, the principles laid down by the Madras High Court in
the case of Dina Malar Publications, A Tamil Daily, Reptd., by its
Partner, R.K. Krishnamoorthy squarely apply to the facts of this case.
I am respectfully agreement with the views expressed by the Madras
High Court.
45. Supreme Court in the case of P.T. Munichikkanna Reddy
& Ors. (supra) has held that the pleas on title and adverse possession are
mutually inconsistent and the latter does not begin to operate until the
former is renounced. It is held that once a party proves its title, the onus of
proof would be on the other party to prove claims of title by adverse
possession. It is held that adverse possession is a right which comes into
play not just because someone loses his right to reclaim the property out
of continuous and willful neglect but also on account of possessor's
positive intent to dispossess. It is held that it is thus important to take
into account before stripping somebody of his lawful title, whether there
is an adverse possessor worthy and exhibiting more urgent and genuine
desire to dispossess and step into the shoes of the paper-owner of the
property. In my view, the judgment of the Supreme Court in the case of
P.T. Munichikkanna Reddy & Ors. (supra) squarely applies to the facts
of this case. In my view, the defendants miserably failed to prove their
adverse possession in respect of the suit property.
46. Supreme Court in the case of Indira Vs. Arumugam &
Anr. (supra) has held that in a suit for possession of immovable property
based on title, initial burden is on the plaintiffs to prove his title. Once
the title is established on the basis of relevant documents and other
ppn 24 sa-209.94 (j).doc
evidence, unless the defendant proves adverse possession for the
prescriptive period, the plaintiff cannot be non-suited. In my view, in this
case, title of the plaintiffs in respect of 45 ares land was not disputed by
the defendants. The plaintiffs had even otherwise proved their title in
respect of the entire land of 4 acres 19 gunthas which includes the said
45 ares plot of land. The onus was thus on the defendants to prove that
they were in adverse possession of the land for prescriptive period which
was adverse to the title of the plaintiffs. The principles laid down by the
Supreme Court in the case of Indira Vs. Arumugam & Anr. (supra)
squarely apply to the facts of this case. I am respectfully bound by the
said judgment.
47. In so far as the substantial question of law framed by this
Court while admitting the second appeal is concerned, for the reasons
recorded aforesaid, in my view, the boundaries or the area mentioned in
the sale deed entered into between the defendants and the erstwhile owner
of the said property would not prevail over the area mentioned in the
sale deed in view of the exact area of property sold having been clearly
mentioned in the sale deed. The said substantial question of law is
answered accordingly.
48. In my view, since the first appellate Court had not dealt with
and considered the oral and documentary evidence led by the parties in
the right perspective and has on the other hand decided ex facie contrary
to the documents and oral evidence and has rendered various findings
which are ex facie perverse, such perverse findings can be interferred
with by this Court by exercising powers under Section 100 of the Code
of Civil Procedure, 1908.
ppn 25 sa-209.94 (j).doc
49. I therefore pass the following order :-
(i) The impugned judgment and decree dated 29th July 1993 passed by
the 4th Additional District Judge, Kolhapur allowing the Regular
Civil Appeal No.277 of 1987 is set aside;
(ii) Civil Appeal No.277 of 1987 filed by the original defendants is
dismissed;
(iii) The cross-objection filed by the original plaintiffs is allowed;
(iv) The judgment and decree dated 16 th October 1987 passed by the
learned IInd Joint Civil Judge, Junior Division, Kolhapur in Regular
Civil Suit No.217 of 1979 is upheld;
(v) Second Appeal No.209 of 1994 is allowed in aforesaid terms;
(vi) There shall be no order as to costs.
R.D. DHANUKA, J.
