Sudhakar S/O Suryabhan Mankar vs Nanaji S/O Deorao Thakre And 3 ...
2017 Latest Caselaw 4000 Bom

 cra73.14.J.odt                      1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


             CIVIL REVISION APPLICATION NO.73 OF 2014



          Sudhakar s/o Suryabhan Mankar,
          Aged about 59 years,
          Occ: Agriculturist, R/o Inzala,
          Tah. Ghatanji, Dist. Yavatmal. ....... APPLICANT

                               ...V E R S U S...

 1]       Nanaji s/o Dorao Thakre since dead
          through his LR's

 1(i)     Smt. Shashikala Nanaji Thakre,
          Aged about 63 years, R/o Inzala,
          Tah. Ghatanji, Dist. Yavatmal.

 1(ii) Sanjay s/o Nanaji Thakre,
       Aged about 39 years, R/o Inzala,
       Tah. Ghatanji, Dist. Yavatmal.

 1(iii) Smt. Neetatai Arun Hiverkar,
        Aged about 43 years, R/o Nilzai,
        Tah. Warora, Dist. Chandrapur.

 1(iv) Sau. Sunita Gajanan Chwardol,
       Aged about 41 years, R/o Dabha,
       Tq. Jhari, Dist. Yavatmal.

 1(v) Sau. Vanita Anjutai Vasantrao Bhong,
      Aged about 36 years, R/o Patel Layout,
      Sai Nagar, Pandharkawda, 
      Tq. Pandharkwada, Dist. Yavatmal.

 2]       Vasantrao s/o Deorao Thakre,
          Aged 61 years, Occ: Agriculturist.




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 3]       Achyutrao s/o Deorao Thakre,
          Aged 58 years, Occ: Agriculturist.

 4]       Babarao s/o Deorao Thakre,
          Aged 51 years, Occ: Agriculturist

          All above R/o Inzala, Tah. Ghatanji,
          Dist. Yavatmal.                           ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri Vinay Dahat, Advocate for Applicant.
          Shri R.S. Nagpure, Advocate for Respondent Nos.1 to 4.
 -------------------------------------------------------------------------------------------


 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

 DATE:               th
                   5    JULY, 2017.


 ORAL JUDGMENT



 1]               The suit filed by the petitioner herein, for possession

under Section 6 of the Specific Relief Act, 1963 came to be

dismissed by the Court of Joint Civil Judge, Junior Division,

Ghatanji, vide its judgment and order dated 28.03.2014.

Being aggrieved thereby, the petitioner has approached this Court.

2] Brief facts of the revision are as follows:

The petitioner claims to be the owner of the land

bearing Gat No.29 admeasuring 1.21 HR situated at Zatala, Tah.

Ghatanji. According to him, the said land was gifted to him by the

Bhudan Yagna Mandal, Nagpur on 23.09.2001. Since then he was

in possession of the said land and cultivating it. On 01.08.2005

the said land was again allotted to him by the said Mandal as per

Patta No.340. It is the case of petitioner that, in order to ascertain

the boundaries of the said suit, he tendered an application in

Taluka Inspector of Land Records Office, Ghatanji. When the

notices were issued to respondents, respondents tried to encroach

on the said land. The petitioner brought the said fact to the

knowledge of President of Tanta Mukti. On 14.01.2010, when the

petitioner again went to the suit land for carrying out

measurement, respondents obstructed him claiming that they

were the owners of the suit land and their father has never gifted

the said land to the Bhudan Yagna Mandal. As per the petitioner,

on that very day the respondents forcibly dispossed him from the

suit land. He immediately complained about the same to the

President of Tanta Mukti. However, the President told him not to

file any report and assured to settle the dispute. Hence, petitioner

did not file any report. However on 03.04.2010, the President of

Tanta Mukti, expressed his inability to settle the dispute.

Hence, petitioner filed suit before the Trial Court under Section 6

of Specific Relief Act, claiming possession of the suit land.

3] The suit came to be resisted by the respondents vide

their written statement at Exh.10, contending inter alia that the

entire Survey No.29 was their ancestral property owned by their

grand father who has partitioned it amongst his three sons, Achut,

Babanrao and Deorao and the entry thereof was taken in mutation

record on 25.06.1980. Thereafter, on 25.09.2005 their father

Deorao executed a will-deed in favour of respondent Nos.1 and 3

bequeathing half share each in the entire Gat No.29, including the

suit land, to respondent Nos.1 and 3. It was submitted that

petitioner is not a landless person and hence, there was no

question to award him any land under the Bhudan Yagna Act. It is

further submitted that father of the petitioner has partitioned his

ancestral land and out of the said land, four acres came to the

share of the petitioner, which he sold to one Raju Jadhav.

Hence, the claim of the petitioner that he has become owner and

purchaser of the suit land, on the basis of the gift of the said land

given to him by Bhudan Yagna Mandal, Nagpur is false and hence,

his suit deserves to be dismissed with compensatory costs.

4] On these respective pleadings of the parties, the Trial

Court framed necessary issues for its consideration at Exh.13.

In support of his case petitioner examined himself and produced

the Certificate issued by Bhudan Yagna Mandal, Nagpur (Exh.20)

and 7/12 extract of the suit land (Exh.22). As against it, on behalf

of the respondents, respondent No.1 examined himself and also

led the evidence of two more witnesses to prove the will-deed and

the mutation entry.

5] On appreciation of this oral and documentary

evidence produced on record by both the parties, learned Trial

Court was pleased to hold that the petitioner has failed to prove

his actual and physical possession over the suit land. Hence, his

suit for possession under Section 6 of the Specific Relief Act was

not maintainable and accordingly dismissed it.

6] While challenging this judgment and order of the

Trial Court, the submission of the learned counsel for the

petitioner is that the petitioner has not only produced on record

the certificate issued by Bhudan Yagna Mandal, Nagpur proving

that the suit land was allotted and gifted to him in the year 2005,

but he has also produced on record the 7/12 extract of the suit

land to show that his name is appearing in the possession column

of the said land since the year 2005-2006. According to learned

counsel for petitioner, both these documents were more than

sufficient on record to prove the possession of the petitioner,

coupled with his oral evidence. It is submitted that the aspect of

possession was the only important issue to be considered by the

Trial Court and that aspect was sufficiently and adequately proved

by the petitioner. The Trial Court has therefore, committed an

error in dismissing the petitioner's suit.

7] Per contra, learned counsel for respondents has

supported the impugned judgment and order of the Trial Court,

by pointing out the various reasons given in the judgment.

According to him, the petitioner has not come before the Court

with clean hand and clear facts. Even the boundaries of the suit

land are not tallying with the description given in the gift deed.

In such circumstances, except for the entry of his name in the

7/12 extract, as there was no evidence at all to prove the physical

and actual possession of the petitioner over the suit land, the Trial

Court has rightly dismissed the suit.

8] In the light of these submissions advanced by the

learned counsel for both the parties and having regard to the

scope of controversy involved in the suit filed under Section 6 of

the Specific Relief Act, the only issue which can arise for my

consideration is whether the petitioner was in possession of the

suit land on 14.01.2010 and he was forcibly dispossessed there

from by the respondents?

9] Needless to state that, this being a suit under Section

6 of the Specific Relief Act, forcibly dispossession of the plaintiff

from the suit land is the gravamen and the essential issue.

In order to prove forcibly dispossession, the petitioner has to

prove that he was actually put in possession of the suit land and

thus he was in prior possession of the suit land. In this respect, no

doubt the petitioner has produced on record the certificate issued

by Bhudan Yagna Mandal, Nagpur Exh.20 to show that the suit

land was gifted to him by the said Mandal. He has also produced

on record 7/12 extract of the suit land to show that his name was

entered on the basis of this certificate from 2005-2006 in

possession column. However, that cannot be sufficient since no

possession receipt executed by Bhudan Yagna Mandal proving that

petitioner was actually putting physical possession of the suit land

is produced on record. Moreover the entries in 7/12 extract of the

suit land goes to show that the suit land was barren or

uncultivated, even after the name of the petitioner appeared in

the 7/12 extract of the land for continuous period from

2005-2006 till 2010. The entry of 'padit' or uncultivated is

appearing in the 7/12 extract of the suit land. If at all the

petitioner was landless and therefore, this land was allotted to

him, then it is expected that he should be cultivating the same.

However, as admitted by petitioner himself, he was cultivating the

land of his brother Dilip, which is situated at village Pimpal.

Hence, the Trial Court has rightly held that plaintiff has failed to

prove his possession over the suit land.

10] It is pertinent to note that except for the name of his

entry in 7/12 extract and his oral testimony petitioner has not

lead evidence of any adjacent occupant or any other witness like

Circle Inspector to prove that he was in actual possession of the

suit land. He has also not examined any witness, not even the

President of Tanta Mukti to prove that on this particular day he

was forcibly dispossessed from the suit land. The evidence of the

President of Tanta Mukti, as observed by the Trial Court was

important and essential on this aspect as the suit is filed after

three months from the alleged dispossession and there is no

complaint filed during that period. If according to petitioner, on

the assurance given by the President of Tanta Mukti that he will

settled the dispute, petitioner remained silent, then the evidence

of the President of Tanta Mukti was necessary to that effect.

However, no such evidence is adduced on record.

11] Apart from these aspects of the case, which go to

show that plaintiff failed to prove his actual possession and

forcibly dispossession from the suit land, there are other aspects of

the case also, which are rightly considered by the Trial Court,

namely, according to petitioner, the land was first allotted to him

in the year 2001, and thereafter the same land was allotted to him

in the year 2001. However, petitioner has not produced on record

the certificate of the allotment of the land in the year 2001. In the

pherphar or 7/12 extract of the land also his name is not

appearing from the year 2001 onwards, but it is appearing for the

first time in the year 2005-2006. According to the pleadings in the

plaint petitioner has stated that the same land was allotted to him

in the year 2005. However in evidence before the Court, he has

stated that the different land was allotted to him in the year 2005.

Further the evidence on record shows that the southern side of the

land of the respondent was given to Bhudan Yagna Mandal,

Nagpur. However, as per the petitioner northern side of the land

was given to said Mandal. Thus, the Trial Court has rightly held

that the four boundaries mentioned by the petitioner during

cross-examination do not match or tally with four boundaries of

the suit land mentioned in Exh.20.

12] Thus, the petitioner is not consistent and there is

variance in his pleading and in his evidence. He has also not

adduced any evidence to prove his actual and physical possession

in the suit land prior to the alleged dispossession and there is also

no evidence to show that on that particular date i.e. within six

months prior to filing of the suit he was forcibly dispossessed from

the suit land by the respondents. Hence, the Trial Court has

rightly dismissed his suit.

13] After all the proceedings under Section 6 of the

Specific Relief Act are summary in nature, which do not

contemplate inquiry in the title. What is essential for plaintiff to

prove is only the prior permission and forcibly dispossession.

Hence, even assuming that by producing the certificate issued by

Bhudan Yagna Mandal, petitioner has attempted to prove his title,

as he failed to prove his prior possession and forcible

dispossession, his remedy was not under Section 6 of the Specific

Relief Act. He can still file a suit on the basis of the title to get

possession, but so far as suit under Section 6 of the Specific Relief

Act is concerned, it has to be held that the Trial Court has, after

properly appreciating the entire evidence on record, rightly

dismissed the same. The revision therefore, no holds merit.

Hence, stands dismissed.

JUDGE

NSN