Bombay High Court
Namdeo Mahadeo Patil vs Kasabai W/O. Krishna @ Kisan Patil ... on 19 September, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.830 OF 2015
WITH
CIVIL APPLICATION NO.1759 OF 2015
IN
SECOND APPEAL NO.830 OF 2015
Namdeo Mahadeo Patil )
Age about 67 years, Occupation )
Agriculture, Residing at Navekhed,
ig )
Taluka Walwa, District Sangli ) ...Appellant
..Ori.Defendant
....Versus....
1). Kasabai w/o Krishna @ Kisan Patil )
Age about 72 years, Occupation )
Agriculture & Household )
2). Nandini Krishna @ Kisan Patil )
After marriage :-
Nandini Bhanudas Patil )
Age about 37 years, Occupation )
Household, Residing at Kavthe-Piran )
Taluka Miraj, District Sangli )
3). Minakshi Krishna @ Kisan Patil )
Age about 33 years, Occupation )
Agriculture & Household, )
Nos.1 and 3 are Residing at )
Navekhed, Taluka Walwa, )
District Sangli. )
4). Shrimati Shivaji Patil )
Age about 47 years, Occupation )
Agriculture & Household, )
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Residing at Kapushed, )
Taluka Walwa, District Sangli ) ...Respondents
...Ori.Plaintiffs
Mr.S.G. Deshmukh i/b Mr.Ramdas Shelke for the Appellant.
Mr.Bhushan Walimbe for the Respondent Nos.1 to 4.
CORAM : R.D. DHANUKA, J.
DATE : 19TH SEPTEMBER, 2016.
ORAL JUDGMENT :-
1. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908 the appellant (original defendant) has impugned the
order and judgment dated 16th September, 2015, passed by the
learned District Judge - II, Islampur, dismissing part of the appeal
filed by the appellant herein by which the appellant had impugned the
judgment and decree dated 22nd November, 2013, passed by the
learned Joint Civil Judge, Junior Division, Islampur directing the
appellant herein to hand over possession of the suit land to the
respondents herein (original plaintiffs) within two months from the
date of the said order and also restraining the appellant from causing
obstruction and interference in the peaceful possession and
enjoyment of the plaintiffs over the suit properties. No cross-objection
has been filed by the respondents (original plaintiffs). The parties in
this judgment are referred as they were referred to in the proceedings
before the learned trial Judge. Some of the relevant facts for the
purpose of deciding this second appeal are as under :
2. The suit properties is lands Gat no.781 admeasuring 0-H
17-R, Gat no.784 admeasuring 0-H 10-R, Pot Kharab 0-H 2-R, Gat
no.1199 admeasuring 0-H 33-R, Gat no.1195 admeasuring 0-H 36-R,
Gat no.1656 admeasuring 0-H 02-R, Gat no.1670/1 admeasuring 0-H
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04-R, situated at District Sangli, Taluka Walva with the right to take
water from the Water Irrigation Scheme and situated at village
Junekhed, Taluka Walva, District Sangli and house bearing Gram
Panchayat Property No.59. The suit properties were originally owned
and possessed by Krishna Hari Patil, predecessor of the plaintiffs.
The said Krishna Hari Patil was the husband of the plaintiff no.1 and
was the father of the plaintiff nos.2 to 4. He died on 28 th November,
1977.
3. It was the case of the plaintiffs that after the demise of said
Krishna Hari Patil, the defendant who was looking after the said lands
on behalf of the said Krishna Hari Patil got his name mutated in the
suit properties vide mutation entry no.8209 in collusion with the
Revenue Authorities. The defendant however, was never in
possession of the suit properties.
4. It is the case of the plaintiffs that since in the year 1983,
the defendant threatened the plaintiffs that he will steal the sugarcane
crop cultivated in the suit land, the plaintiffs filed a civil suit (Regular
Civil Suit No.441 of 1984) against the defendant for perpetual
injunction. The learned trial Judge granted interim injunction in the
said Regular Civil Suit No.441 of 1984 in favour of the plaintiffs. The
defendant challenged the said order by filing Misc. Civil Application
No.231 of 1989. The said Misc. Civil Application came to be
dismissed on 16th January, 1992. The said Regular Civil Suit No.441
of 1984 was subsequently decided and disposed of on merits on 24th
February, 1994. The learned trial Judge granted permanent injunction
in the said suit against the defendant. The defendant herein filed an
appeal (Regular Civil Appeal No.205 of 1994). By an order passed by
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the first appellate Court, the said appeal filed by the defendant came
to be allowed and the judgment and order of the learned trial Judge
came to be reversed. The first appellate Court held that the plaintiffs
were not in possession of the suit properties. The second appeal filed
by the plaintiffs against the said order and judgment came to be
dismissed by this Court.
5. It was the case of the plaintiffs that taking advantage of the
decision in Regular Civil Appeal No.205 of 1994, passed by the first
appellate Court, the defendant forcibly dispossessed the plaintiffs
from the suit properties in the month of February, 1995. The plaintiffs
accordingly filed a suit (Regular Civil Suit No.731 of 2000) against the
defendant inter-alia praying for possession of the suit properties and
for other reliefs.
6. The defendant filed a written statement in the said suit
and contended that he had developed the suit lands. He disputed that
the plaintiffs were ever in possession of the suit properties. It was the
case of the defendant that during the life of the said Krishna Hari
Patil, he had allowed the defendant to cultivate the suit lands as his
representative and since then he was in possession of the suit lands.
He disputed that he had taken possession of the suit lands from the
plaintiffs in the month of February, 1995. The defendant also placed
reliance on the Will alleged to have been executed by the said
Krishna Hari Patil and also claimed adverse possession in respect of
the suit properties.
7. The learned trial Judge framed about 15 issues. The
plaintiffs examined four witnesses and produced various documents.
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None of the plaintiffs did not enter the witness box. The defendant
examined himself and two more witnesses.
8. By a judgment and decree dated 22nd November, 2013,
the learned Joint Civil Judge, Junior Division, Islampur partly decreed
the said suit filed by the plaintiffs and directed the defendant to hand
over possession of the suit lands to the plaintiffs within two months
from the date of the said suit and passed an order of injunction
restraining him from causing obstruction and interference in the
peaceful possession and enjoyment of the plaintiffs over the suit
properties. The learned trial Judge directed an enquiry for mesne-
profits under Order 20 Rule 12 of the Code of Civil Procedure, 1908.
Being aggrieved by the said order and decree dated 22 nd November,
2013, the defendant filed an appeal (Regular Civil Appeal No.9 of
2014) before the learned District Judge, Islampur. The plaintiffs did
not file any cross-objection. By an order and judgment dated 16 th
September, 2015, the learned District Judge - II, Islampur partly
allowed the said appeal filed by the defendant and has set aside part
of the decree passed by the learned trial Judge i.e. the relief insofar
as an injunction restraining the defendant from interfering with the
peaceful possession and enjoyment of the plaintiffs over the suit
properties is concerned. The first appellate Court did not set aside the
decree insofar as handing over possession of the suit properties by
the defendant to the plaintiffs is concerned.
9. Mr.Deshmukh, learned counsel appearing for the appellant
invited my attention to an order passed by the first appellate Court in
Regular Civil Appeal No.205 of 1994, which was filed by the
defendant herein and more particularly paragraph 22, in which the
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first appellate Court had rendered a finding that since prior to filing of
the earlier suit filed by the plaintiffs, the defendant was in actual and
physical possession and was enjoying the suit lands by cultivating the
same. He submits that the said order passed by the first appellate
Court rendering such finding had attained finality in view of the fact
that this Court had dismissed the second appeal filed by the plaintiffs.
He submits that the plaintiffs thus could not have alleged that the
defendant had dispossessed the plaintiffs in the month of February,
1995.
10. It is submitted by the learned counsel for the defendant
that since the first appellate Court in the appeal filed by the defendant
had rendered a finding that the plaintiffs were not in possession of the
suit properties since prior to filing of the said suit in the year 1984 for
injunction, a suit for recovery of possession filed by the plaintiffs in
the year 1996 was bared by law of limitation.
11. The next submission of the learned counsel for the
defendant is that admittedly the plaintiffs did not enter the witness box
to prove their case, including their plea of title and ownership in
respect of the suit properties. He submits that the constituted attorney
of the plaintiffs could have been examined only to prove the facts
which were personally to the knowledge of the constituted attorney
and thus his evidence could not have been considered as evidence
on behalf of the plaintiffs. He submits that the evidence of the
constituted attorney has been considered by the learned trial Judge
as well as by the first appellate Court. He submits that the entire
order passed by the learned trial Judge directing the defendant to
hand over possession of the suit properties to the plaintiffs and
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upheld by the first appellate Court is totally perverse and contrary to
law.
12. Learned counsel for the defendant invited my attention to
paragraph 39 of the order passed by the first appellate Court and
would submit that the application for amendment to the plaint made
by the plaintiffs was rejected by the learned trial Court. The plaintiffs
had withdrawn their writ petition filed in this court on 29 th October,
2013. He submits that the learned trial Judge thus could not have
rendered any finding of title and ownership of the plaintiffs of the suit
lands and the suit house, in the impugned judgment and decree.
13. Learned counsel submits that the plea of adverse
possession taken by the defendant before the learned trial Judge was
subsequently given up by the defendant.
14. Mr.Walimbe, learned counsel appearing for the
respondents (original plaintiffs) invited my attention to various findings
of fact recorded by the learned trial Judge as well as by the first
appellate Court and would submit that since the findings of fact are
not perverse, this Court cannot interfere with such findings of fact in
this appeal filed under section 100 of the Code of Civil Procedure,
1908.
15. Insofar as the submission of the learned counsel for the
defendant that the suit was barred by law of limitation or that the
learned trial Judge could not have applied Article 65 in the facts and
circumstances of this case is concerned, it is submitted that it was the
case of the plaintiffs before the learned trial Judge that the defendant
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had dispossessed them from the suit properties in the month of
February, 1995 and the plaintiffs had thus filed a suit for recovery of
possession within the time prescribed. The suit was already filed in
the year 1996. He submits that the question of limitation is a mixed
question of fact and law. The learned trial Judge has rightly
considered the pleadings and the evidence and has rendered a
finding of fact that the suit was filed within the time prescribed under
the Limitation Act. He submits that the first appellate Court has
independently considered this issue and has rejected the plea of
limitation raised by the defendant.
16.
Insofar as the submission of the learned counsel for the
defendant that the application for amendment of the plaint by which
the plaintiffs wanted to claim their title came to be rejected and the
plaintiffs having withdrawn the writ petition, the learned trial Judge
could not have determined the issue of title in the impugned judgment
and decree is concerned, he submits that the learned trial Judge has
rejected the application for amendment on the ground that the
amendment was not necessitated. He submits that the title of the
original owner and after the demise of the original owner, the title of
the plaintiffs was not disputed by the defendant. He submits that the
suit was not for determination of title but was for recovery of
possession.
17. Insofar as the submission of the learned counsel for the
defendant that the evidence of the constituted attorney could not
have been considered as conclusive is concerned, it is submitted by
the learned counsel for the plaintiffs that since there was no dispute
in respect of the title and ownership of the plaintiffs in the suit
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properties and since the defendant did not prove any right, title and
interest of any nature whatsoever in the suit properties, none of the
plaintiffs were required to enter into witness box to prove the title. The
plaintiffs had still examined three witnesses. The learned trial Judge
had rightly considered the documentary as well as oral evidence led
by the plaintiffs and the same cannot be faulted with.
18. Learned counsel for the plaintiffs submits that the
defendant could neither produce any alleged Will for consideration of
the learned trial Court nor could prove his alleged adverse
possession in respect of the suit properties. He submits that the plea
of the defendant for adverse possession itself was contrary to his
plea that the suit properties were bequeathed under the alleged Will
by the predecessor of the plaintiffs. The case of the defendant was
that he was in permissive possession of the suit properties granted by
the predecessor of the plaintiffs for taking care of the suit properties.
He submits that since the defendant had failed to prove any right,
title or interest of any nature whatsoever in the suit properties, the
learned trial Judge rightly passed a decree in favour of the plaintiffs
and rightly directed the defendant to hand over peaceful, vacant and
exclusive possession of the suit properties to the plaintiffs.
19. Learned counsel for the plaintiffs submits that the learned
trial Judge as well as first appellate Court have dealt with the issue of
power of attorney raised by the defendant in detail in the impugned
orders passed by the two Courts below and have rendered a
concurrent findings of fact which cannot be interfered with by this
Court under section 100 of the Code of Civil Procedure, 1908.
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20. Mr.Deshmukh, learned counsel for the defendant
reiterated his submission insofar as the issue of limitation and
evidence of the constituted attorney of the plaintiffs led by the
plaintiffs and submits that various substantial questions of law having
arisen in this second appeal, the second appeal be decided in favour
of the defendant.
REASONS AND CONCLUSIONS :
21. It is not in dispute that the plaintiffs had filed a suit
(Regular Civil Suit No.441 of 1984) against the defendant inter-alia
praying for perpetual injunction. The said suit was decreed in favour
of the plaintiffs. The defendant had impugned the said decree by filing
an appeal (Regular Civil Appeal No.205 of 1994) before the
Additional District Judge, Sangli. There is no dispute that the said
appeal filed by the defendant came to be allowed by an order and
judgment 21st February, 1995. In the said judgment, the first appellate
Court held that since prior to filing of the suit, the defendant was in
actual and physical possession and was enjoying the suit lands by
cultivating it. The second appeal against the said order and judgment
delivered by the first appellate Court came to be dismissed.
22. It was the case of the plaintiffs that in the month of
February, 1995, the defendant however, dispossessed the plaintiffs.
The defendant had disputed the said averment made by the plaintiffs.
The trial Court had framed specific issue as to whether the
possession of the defendant over the suit properties was
unauthorized and illegal. The trial Court also framed an issue as to
whether the plaintiffs had proved that they were dispossessed from
the suit properties in the year 1995-1996. The trial Court after
considering the oral and documentary evidence has held that the
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plaintiffs were dispossessed from the suit properties by the
defendant in the year 1995-1996 and also held that the possession of
the defendant over the suit properties was unauthorized and illegal. A
perusal of the order and judgment rendered by the first appellate
Court indicates that the first appellate Court also formulated seven
points for determination. Insofar as the issue of possession is
concerned, the appellate Court has rendered a finding that the
plaintiffs had proved that they were dispossessed from the suit lands
by the defendant in the month of February, 1995.
23. In my view, the finding rendered by the learned trial Judge
that the defendant had dispossessed the plaintiffs in the month of
February, 1995 is based on oral and documentary evidence led by
the plaintiffs and the findings of the first appellate Court confirming
the same is not perverse and thus this Court cannot interfere with
such findings of fact in this appeal filed under section 100 of the Code
of Civil Procedure, 1908.
24. Insofar as the the submission of the learned counsel for
the defendant that the suit filed by the plaintiffs was barred by law of
limitation is concerned, the learned trial Judge has framed the issue
on limitation. The learned trial Judge has held that the learned
Additional District & Sessions Judge had rendered a finding in the
year 1995 in the earlier round of litigation between the parties that the
plaintiff was not in possession of the suit property. The present suit
had been filed by the plaintiffs in the year 2000. The learned trial
Judge considered that as per the contentions of the defendant
himself that he was inducted into possession of the suit property on
the premise of consent or permission of the deceased Krishna Hari
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Patil, which was later on continued on the basis of the Will executed
by him in favour of the defendant. In the earlier suit filed by the
plaintiffs, the defendant had not claimed that he was in possession
over the suit land hostile to the knowledge of the real owner of the
land. Such plea of adverse possession was taken by the defendant
for the first time in the present suit. The learned trial Judge held that
even if the possession of the defendant was accepted then also it
was permissive possession and not constructive possession of the
plaintiffs.
25. The learned trial Court held that as per the plaintiffs, the
defendant claimed title on the basis of adverse possession in the
month of February, 1995 and even if the suit is considered to have
been filed on the basis of the pleadings of the earlier possession, and
subsequent dispossession, then also the plaintiffs will get the benefit
under section 14 of the Limitation Act. The learned trial Judge
accordingly held that the suit filed by the plaintiffs was well within
time.
26. A perusal of the order and judgment delivered by the
appellate Court indicates that the appellate Court has considered the
issue of limitation and has rendered a finding that the cause of action
in respect of the suit land arose in February, 1995 after the decision
of the appeal and in respect of the suit house arose in February,
1996. The appellate Court has rendered a finding that the plaintiffs
were dispossessed by the defendant forcibly in February, 1995 and
the suit was filed within time prescribed under the Limitation Act. In
my view, the findings rendered by the two Courts below are
concurrent findings of fact which are based on the documentary and
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oral evidence led by both the parties and not being perverse thus
cannot be interfered with by this Court under section 100 of the Code
of Civil Procedure.
27. Insofar as the submission of the learned counsel for the
defendant that the application for amendment of the plaint for
claiming the ownership on the basis of the title was rejected by the
learned trial Court and the writ petition filed by the plaintiffs was
withdrawn, the learned trial Judge could not have decided the issue
of title is concerned, a perusal of the record indicates that the
defendant had not disputed the title of the plaintiffs
ig in the suit
property. The defendant had either claimed adverse possession or
claimed possession on the basis of the alleged Will. It was also the
case of the defendant that the defendant was cultivating the land
under a permissive user and granted by the predecessor of the
plaintiffs. In my view, since there was no dispute in respect of the title
and ownership in the suit property of the plaintiffs or their
predecessors, though the plaintiffs had withdrawn the writ petition,
whether the learned trial Court could have adjudicated upon the title
of the plaintiffs or not is of no significance.
28. Insofar as the submission of the learned counsel for the
defendant that the plaintiffs themselves not having entered the
witness box, the learned trial Court could not have relied upon the
evidence led by the constituted attorney of the plaintiffs is concerned,
in my view, since there was no dispute in respect of the title and the
defendant having claimed adverse possession and claimed the
alleged rights under the alleged Will, alleged to have been executed
by the predecessor of the plaintiffs and since the defendant failed to
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prove both these allegations before the learned trial Judge, the
plaintiffs were not required to enter the witness box and to prove their
case. Be that as it may, the plaintiffs have examined three witnesses
in support of their case. There is thus no substance in this submission
of the learned counsel for the defendant .
29. I therefore, pass the following order :-
a). Second Appeal No.830 of 2015 is dismissed.
b). In view of dismissal of the second appeal, Civil Application
No.1759 of 2015 does not survive and is accordingly disposed of. No
order as to costs.
(R.D. DHANUKA, J.)
