Parvatibai Tanu Shivgan (Since ... vs Shri Dhondu Sakharam Gurav
2016 Latest Caselaw 5202 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                     
                         SECOND APPEAL NO.473 OF 2015

                                     WITH
                       CIVIL APPLICATION NO.1006 OF 2015




                                                    
                                       IN
                        SECOND APPEAL NO.473 OF 2015




                                                
      Parvatibai Tanu Shivgan,                  )
                           th
      since deceased (on 6 January, 2015)       )
      Through her heirs & legal representatives )
                                    
      1(a) Sou.Ratnaprabha Shantaram Parbote)
           Age 51 years, Occ : Agriculturist / )
                                   
           Household,R/o At Post Kasheli       )
           Post Sathare Bomb,                  )
           District Ratnagiri.                 )
          

      1(b) Prabhakar Tanu Shivgan,               )
           Age 55 years, Occ : Service           )
       



           R/o Wadala Katrak Road,               )
           Kashabe Sangh - 2, Wadala Market      )
           Mumbai - 400 032.                     )

      1(c) Arun Tanu Shivgan                     )





           Age 44 years, Occ : Agriculturist,    )

      1(d) Pramod Tanu Shivgan,                  )
           Age 41 years, Occ : Agriculturist     )
           Nos.1(c) & 1(d) R/o Nanji,            )





           Tal. & District : Ratnagiri.          )

      1(e) Sarita Sadanand Gawde                 )
           Age Adult, Occ : Household            )
           R/o, Wadala Hatrak Road               )
           Kashbe Sangh - 2, Wadala Market       )
           Mumbai - 400 032.                     )         ...Appellants


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                                                                     sa473-15

                ....Versus....




                                                                              
    Shri Dhondu Sakharam Gurav                  )
    Age 55 years, Occ : Service,                )
    R/o. At Post Nanji, Guravwadi,              )




                                                      
    District : Ratnagiri.                       )           ...Respondent


    Mr.Surel Shah for the Appellants.




                                                     
    Mr.Vaibhav Ugle for the Respondent.

                           CORAM         : R.D. DHANUKA, J.

RESERVED ON : 30TH AUGUST, 2016

PRONOUNCED ON : 7TH SEPTEMBER, 2016

JUDGMENT :-

1. By this appeal filed under section 100 of the Code of Civil

Procedure, 1908, the appellants (original plaintiffs) have impugned

the order and judgment dated 17th November, 2014 passed by the

learned Principal District Judge, Ratnagiri, dismissing Regular Civil

Appeal No.39 of 2009 filed by the appellants, by which the appellants

have impugned the rejection of part of the relief by the learned trial

Judge in the suit for perpetual injunction or in the alternate for

possession of the part of the suit property filed by the appellants is

concerned.

2. For the sake of convenience, the parties described in this

judgment are described as they were described in the proceedings

before the learned trial Judge.

3. By consent of parties, the second appeal was heard finally

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at the admission stage by formulating substantial question of law on

30th August, 2016. Some of the relevant facts for the purpose of

deciding this second appeal are as under :

4. The area of 33 acres out of the suit property bearing Gat

No.1026 admeasuring 1-H 52-R known as "Bhokar" situated at village

Khanu, Taluka and District Ratnagiri is the subject matter of this

appeal. The suit property bearing Gat No.1026 was purchased by the

husband of the plaintiff no.1 Tanu Babu Shivgan, father of the

plaintiff no.2 and the defendant nos.2 to 5, who had purchased the

suit property from Govind Dhondabarao Salvi and Ramchandra

Dhondabarao Salvi under a registered sale deed dated 25 th

November, 1971.

5. It was the case of the plaintiffs that the predecessor in title

of the suit property Tanu Babu Shivgan planted Alphonso mango

plants and developed Alphonso mango garden on the said plot which

were bearing fruits. Some time in the year 2001- 2002, the defendant

no.2 behind the back of the said Tanu Babu Shivgan entered his

name in the cultivation column of mutation record without giving any

notice to the plaintiffs. Residential Nayab Tehsildar, Ratnagiri allowed

the said application field by the defendant no.1. The plaintiffs

preferred an appeal before the Sub-Divisional Officer, Ratnagiri, who

by his order dated 4th November, 2013 was pleased to set aside the

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order passed by the Residential Nayab Tehsildar, Ratnagiri and

directed to strike off the name of the defendant no.1 entered in the

cultivation column of the revenue record to the extent of 33-R. The

defendant no.1 preferred R.T.S. Appeal No.9 of 2004 before the

Additional Collector. The Additional Collector allowed the said appeal

filed by the respondent no.1 and restored the order passed by the

Residential Nayab Tehsildar, Ratnagiri by setting aside the order

passed by the Sub-Divisional Officer, Ratnagiri. It was the case of the

plaintiffs that the said order passed by the Additional Collector was

void and illegal, as the same was passed without conducting any

proper enquiry as to the actual cultivation contemplated under the

provisions of the Maharashtra Land Revenue Code.

6. It was the case of the plaintiffs that the plaintiffs apprehend

interference with their possession over the suit property by the

defendant no.1. The plaintiffs accordingly filed a suit (Regular Civil

Suit No.145 of 2005) on 27th April, 2005 inter-alia praying for

injunction against the defendant no.1 from disturbing their

possession over the entire property and in the alternative in case it

was found that the defendant was in possession of the portion of the

larger property, the defendant no.1 shall be directed by a mandatory

order and injunction to hand over possession of their portion of larger

property to the plaintiffs. The defendant no.1 appeared and contested

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the said suit on various grounds. The defendant no.1 in the written

statement did not dispute the title of the plaintiffs in respect of the suit

property.

7. Learned Second Joint Civil Judge, Junior Division,

Ratnagiri framed six issues. Both the parties led oral as well as

documentary evidence before the learned trial Judge. By a judgment

and decree dated 3rd February, 2009, the leaned Second Joint Civil

Judge, Junior Division, Ratnagiri was pleased to pass a partial decree

in the said suit and granted an injunction against the defendant no.1

from disturbing the possession of the plaintiffs except 33-R of land

out of the larger Gat No.1026. The defendant no.1 claimed to be in

possession of the said 33-R of land out of the larger Gat No.1026.

8. Being aggrieved by the said judgment and decree date 3rd

February, 2009, passed by the learned trial Judge, the plaintiffs

impugned part of the said order which was in respect of 33-R of land

is concerned by filing an appeal (Regular Civil Appeal No.39 of 2009)

before the learned Principal District Judge, Ratnagiri. By an order and

judgment dated 17th November, 2014, passed by the learned

Principal District Judge, Ratnagiri, the said Regular Civil Appeal

No.39 of 2009 filed by the plaintiffs came to be dismissed. Being

aggrieved by the said order and judgment dated 17th November, 2014

passed by the learned Principal District Judge, Ratnagiri, the plaintiffs

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have filed this second appeal under section 100 of the Code of Civil

Procedure, 1908.

9. This Court has formulated the following substantial

questions of law :-

(i). Whether in view of the findings of Courts below that

the appellants are owners of the suit property and that the respondent no.1 is in permissive possession of the suit property. Could both the

Courts below have refused to alternate relief sought by the appellants for recovery of possession of the

suit property ?

(ii). Whether in view of categorical finding of the Courts

below that the respondent no.1 was in permissive possession of the suit property could the Courts below have refused to grant prayer for possession

of the suit property especially after categorically

holding that the respondent no.1 has not pleaded any adverse possession ?

(iii). Whether the Appellate Court was justified in holding

that the appellants have not filed appropriate suit without appreciating the fact that the appellants had in fact sought possession of the suit property from the respondents ?

(iv). Whether the appellate Court could have refused to grant decree for possession on the ground that detailed description of the suit land sought to be recovered from the respondent no.1 has not been given in the plaint without appreciating the fact that

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owner is in possession of the respondent no.1 to the extent of 33 Ares has not been disputed by any of

the parties to the litigation and thus property being

identifiable could have been handed over to the appellants ?"

10. Mr.Shah, learned counsel appearing for the plaintiffs

invited my attention to the copy of the plaint, oral evidence led by the

parties and the findings rendered by the learned trial Judge. He

submits that the learned trial Judge erroneously rejected the relief of

injunction as well as possession insofar as the portion of the land

admeasuring 33-R out of the larger property is concerned. He

submits that though the defendant no.1 had neither claimed title nor

claimed adverse possession and had admitted the title of the plaintiffs

in the said portion of the suit property, the learned trial Judge refused

to grant relief of injunction and in the alternate for possession in

respect of the said portion of the larger property.

11. Learned counsel for the plaintiffs invited my attention to

the findings recorded by the appellate Court and would submit that

though the appellate Court has rendered the finding that the

defendant no.1 was in permissive possession of 33-R i.e. portion of

the suit land and had neither pleaded nor proved adverse possession

in respect of the said portion of the suit property, the appellate Court

has dismissed the appeal filed by the plaintiffs. He submits that since

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the defendant no.1 had failed to prove any right, title or interest of any

nature whatsoever in the said portion of 33-R and title of the plaintiffs

was undisputed, the learned trial Judge ought to have passed a

decree for possession in respect of 33-R against the defendant no.1.

12. It is submitted by the learned counsel that the defendant

no.1 came to be in possession of 33-R out of the larger property and

thus he was fully aware of the reliefs claimed by the plaintiffs against

him and thus two Courts below could not have refused to grant relief

for handing over possession of the said property to the plaintiffs on

the ground that the property in possession of the defendant no.1 was

not properly described in the plaint.

13. Learned counsel for the plaintiffs placed reliance on the

judgment of the Supreme Court in case of Maria Margarida

Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria (Dead)

through L.Rs., 2012(4) Bom.C.R. 75 and in particular paragraphs 81

and 101. He submits that since the two Courts below have rendered

a finding of fact that the defendant no.1 was though in possession of

the property had neither claimed any title in respect of the suit

property nor had claimed adverse possession, the Courts ought not

to have granted any protection to the defendant. Paragraph 101 of

the judgment of the Supreme Court in case of Maria Margarida

Sequeria Fernandes & Ors. (supra) reads under :-

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"101. Principles of law which emerge in this case are crystallized as under :-

1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously.

Even by long possession of years or decades such person would not acquire any right or interest in the said property.

2. Caretaker, watchman or servant can never

acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

3. The Courts are not justified in protecting the possession of a caretaker, servant or any person

who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or

license agreement in his favour.

5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in

such property irrespective of his long stay or possession."

14. Learned counsel for the defendant no.1 on the other hand

submits that the findings recorded by the two Courts below in favour

of the defendant no.1 are not perverse and being concurrent findings

of fact, cannot be interfered with by this Court in this second appeal

filed under section 100 of the Code of Civil Procedure, 1908. He

submits that the plaintiffs had prayed for possession as and by way

of alternate relief and thus the learned trial Judge was justified in

refusing to grant alternate relief also in the facts and circumstances of

this case.

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15. It is submitted by the learned counsel that his client has

been in established possession for last several decades and had

planted Alphonso mango trees on the suit plot and if any decree of

possession is granted by this Court at this stage, his client would be

seriously prejudiced.

16. A perusal of the order passed by the two Courts below and

also the records produced by the learned counsel for the plaintiffs

clearly indicates that it was not the plea of the defendant no.1 that he

had claimed any ownership or tenancy rights in respect of the suit

property. He had also not claimed adverse possession in respect of

the suit property. His case was that he had been in possession of the

suit property for last several decades and had planted various

Alphonso mango trees on the suit plot and thus cannot be

dispossessed by the plaintiffs.

17. A perusal of the impugned judgment and decree passed

by the learned trial Judge and by the appellate Court clearly indicates

that both the Courts have rendered a finding of fact that during the

cross examination of the defendant no.1, he had admitted that neither

he was in possession of 33-R portion of the suit land as a tenant nor

he claimed adverse possession over the said portion of the suit land.

The finding is also rendered that the defendant no.1 was in

permissive possession of the said 33-R portion of the suit land. It is

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held by both the Courts below that the plaintiffs had proved their title

in respect of the suit property, whereas the defendant no.1 had failed

to plead and prove adverse possession of the suit property. It is not in

dispute that the defendant no.1 has not challenged various findings of

fact recorded by the two Courts below by filing any cross-objection in

this Court. Various findings of fact rendered aforesaid have thus

attained finality and are binding on the defendant no.1.

18. The Supreme Court in case of Maria Margarida Sequeria

Fernandes & Ors. (supra) has held that merely because the person

is allowed to stay in the premises gratuitously, even by long

possession of years or decades such person would not acquire any

right, title or interest to the said property. It is held that such person

can never acquire interest in the property irrespective of his long

possession and was to give possession forthwith on demand by the

owner of the suit property. It is held that the Courts are not justified in

protecting the possession of a caretaker, servant or any person who

was allowed to live in the premises for some time either as a friend,

relative, caretaker or as a servant. Such persons holds property of

the principal only on behalf of the principal and does not acquire any

right, title or interest of any nature whatsoever in the suit property.

19. In my view, the conclusion drawn by two Courts below is

contrary to the clear finding that possession of the defendant no.1

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was permissive possession and no right, title or interest of any nature

whatsoever was either claimed or proved by the defendant no.1 in

the suit property and is contrary to the principles laid down by the

Supreme Court in case of Maria Margarida Sequeria Fernandes &

Ors. (supra).

20. In my view, since the defendant no.1 had not claimed any

right, title or interest of any nature whatsoever in the suit property,

including adverse possession in respect of the suit property or

tenancy and his possession having been found as permissive

possession, the Courts below ought to have directed him to hand

over possession of the suit land to the plaintiffs, who were admittedly

the owners of the suit land. The Courts below could not have

protected the defendant no.1 merely on the basis of his permissive

possession though it was for substantial period. The period of

possession of a person without any right, title or interest which was

not adverse to the interest of the owner, could not be protected by

two Courts below.

21. In my view, the judgments of two Courts below being

contrary to law and inconsistent with the findings recorded by two

Courts below, deserves to be set aside. The judgment of the

Supreme Court in case of Maria Margarida Sequeria Fernandes &

Ors. (supra) squarely applies to the facts of this case. I am

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respectfully bound by the said judgment.

22. Insofar as substantial questions of law (i) to (iv) are

concerned, the same are answered in negative.

23. I therefore, pass the following order :-

a). The impugned order and judgment dated 17th November,

2014 passed by the learned Principal District Judge, Ratnagiri is set

aside. Regular Civil Appeal No.39 of 2009 is allowed.

b). The judgment and decree dated 3rd February, 2009

passed by the learned trial Judge insofar as rejection of prayer for

possession of 33-R of land is concerned, is set aside. Regular Civil

Suit No.145 of 2005 is decreed, as prayed.

    c).          No order as to costs.
            

    d).          In view of disposal of the second appeal, Civil Application
         

No.1006 of 2015 does not survive and is accordingly disposed of.

(R.D. DHANUKA, J.)