State Of Maharashtra Thr.The ... vs Divakar Domaji Dahikar And 5 ...
2017 Latest Caselaw 4311 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 218 of 2003


 The State of Maharashtra,
 through the Collector,
 Gadchiroli.                                 .....         Appellant.
                                                      Org. Defendant



                                   Versus


 1.     Diwakar son of Domaji Dahikar,
        since dead, through his legal
        heirs :

 1-A Kishor Diwakar Dahikar,
     aged about 53 years,

 1-B Jayant Diwakar Dahikar,
     aged about 47 years,

        both residents of Desaiganj,
        Tq. Desaiganj,
        Distt. Gadchiroli.

 2.     Prabhakar son of Domaji
        Dahikar,
        since dead, through his
        legal heirs :

        Santosh Prabhakar Dahikar,
        since dead, through his
        legal heirs:




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 2-A Smt. Madhuri Santosh Dahikar,
     aged about 49 years,

 2-B Ku. Nikita Santosh Dahikar,
     aged about 23 years,

 2-C Kaustubh Santosh Dahikar,
     aged 18 years,

        all residents of Gadchiroli.

 3.     Vikash Prabhakar Dahikar,
        aged 33 years,
        resident of Kannamwar Ward,
        Desaiganj,
        Tq. Desaiganj,
        Distt. Gadchiroli.

 4.     Atul Prabhakar Dahikar,
        aged 30 years,
        resident of Kannamwar Ward,
        Desaiganj,
        Tq. Desaiganj, Distt. Gadchiroli.

 5.     Komal Prabhakar Dahikar,
        aged 68 years,
        resident of Kannamwar Ward,
        Desaiganj, Tq. Desaiganj,
        Distt. Gadchiroli.

 6.     Smt. Shobha widow of
        Sudhakar Dahikar,
        aged about 44 years,
        occupation - Household,
        resident of Desaiganj [Wadsa],
        Tq. Desaiganj,
        Distt. Gadchiroli.                   .....        Respondents.
                                                          Org. Plffs.




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                               *****
 Ms. Tajwar Khan, Asstt. Govt. Pleader for the appellant-State.

 Mr. R. L. Khapre, Adv., for the respondents.

                                        *****


                                   CORAM :         A.S. CHANDURKAR, J.

                                   Date       :      11th July, 2017

 ORAL JUDGMENT:

01. The following substantial questions of law were framed while

admitting the Second Appeal:-

"[i] Whether the plaintiff was entitled to claim that he was in possession of area of 3500 sq. feet in addition to the area leased to him under the lease-deed exh.27?

[ii] Whether the plaintiff was entitled to an injunction restraining the defendants from removal of the encroachment of 3500 sq. feet which he was claiming?

[iii] Whether the provisions of Sections 91 and 92 of the Evidence Act are applicable in the facts and circumstances of the case?"

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02. The facts giving rise to these substantial questions of law

are that it is the case of the respondents who are the original plaintiffs

that their father - Domaji was in Government service and was granted

a lease by the C.P. & Berar Government with regard to Plot No.7. This

registered Lease-Deed dated 18th March, 1949 was for consideration

of Rs. 225/-. It is the further case of the plaintiffs that though the area

of Plot No.7 was shown as 6,000 sq. ft., it was actually measuring

9,500 sq.ft. After the death of Domaji on 7th December, 1988, Plot

No.7 was partitioned between his three sons. One Mohammad Gani

had sought to disturb right of way of the plaintiffs and hence the

plaintiffs had filed a civil suit against him for permanent injunction.

This suit was decreed. Thereafter, on 20th January, 1997, the Naib

Tahsildar issued notice to the son of plaintiff no.2 to vacate the excess

area of 3500 sq.ft., that was in their possession. Hence, on 27th

January, 1997, suit was filed for declaration that the plaintiffs were

lessees of Plot No.7 along with a superstructure constructed thereon

which was described in the plaint map.

03. In the Written Statement filed on behalf of the present

appellant, it was pleaded that what was leased out to the plaintiffs was

only 6,000 sq.ft. land and that the excess area had been encroached.

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The possession of the plaintiffs was also denied.

04. After considering the evidence on record, the trial Court

decreed the suit and declared the plaintiffs to be the owners of Plot

No.7 as per the plaint map at Exh.45. The defendant was restrained

from obstructing the the peaceful possession of the plaintiffs.

In the appeal preferred by the present appellant, the

appellate Court while holding that the plaintiffs had not proved their

alternate case of adverse possession dismissed the appeal. Hence this

Second Appeal.

05. Ms. Khan, learned Asstt. Govt. Pleader for the appellant,

submitted that the Lease-Deed at Exh.27 was very specific in nature

and only the area admeasuring 100 feet X 60 feet had been leased out.

The plaintiffs had no right to continue in occupation of excess area of

3500 sq.ft. According to her, both the Courts committed an error by

giving much importance to the admissions of the witness examined by

the defendant while decreeing the suit. She submitted that the

plaintiffs ought to succeed on the strength of their own case and not

the weakness of the defendant's stand. She referred to the evidence

of the plaintiffs to urge that entitlement to 3500 sq.ft had not been

proved. She placed reliance on the following decisions in that regard:-

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[a] State of Madhya Pradesh Vs. Nomi Singh & another [ (2015) 14 SCC 450],

[b] State of Madhya Pradesh Vs. Ushadevi [ (2015) 8 SCC 672], and

[c] Rangammal Vs. Kuppuswami & another [ (2011) 12 SCC 220],

06. Shri R. L. Khapre, learned counsel for the respondents,

supported the impugned judgments. According to him, on

consideration of the map along with the Lease-Deed at Exh.27, it was

clear that on the Southern side of Plot No. 7, Plot No.8 was situated.

The defendant could not prove any open space between plot nos. 7

and 8. Even if it was assumed that the area described as 6,000 sq.ft.,

was erroneous, the boundaries as mentioned in the Lease-Deed ought

to prevail. In that regard, he referred to the judgments of the

Honourable Supreme Court in [1] Sheodhyan Singh & others Vs.

Musammat Sanichara Kuer & others [AIR 1963 SC 1879] and [2]

Subhaga & others Vs. Shobha & others [ (2006) 5 SCC 466]. He

then submitted that on the basis of the Lease-Deed itself, the plaintiffs

had been put in possession and the earlier suit filed by them was also

decreed. According to him, the plaintiffs were entitled to continue in

possession on the strength of the Lease-Deed dated 18th March, 1949

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with regard to the entire land.

07. I have heard the learned counsel for the parties at length

and I have given due consideration to the respective submissions.

08. On behalf of the plaintiffs, the plaintiff no.1 was examined

below Exh.26. He produced the original Lease-Deed at Exh.27. He

deposed that the actual area in possession of the plaintiffs was 9500

sq.ft., and not 6,000 sq. ft. as mentioned in the Lease-Deed. He further

referred to the earlier civil suit filed against one Mohammad Gani that

was decreed. In his cross-examination, he denied the suggestion that

the disputed area of 3500 sq.ft was vacant till 1997. The plaintiffs

examined two more witnesses.

09. The defendant examined the In-charge Tahsildar at Exh.48.

He deposed that between Plot No.7, which was allotted to the plaintiffs

and Plot No.8, there was open Government site. In his cross-

examination, he stated that this open site was not shown in the

maintenance map. The open space was also not mentioned in the

Lease-Deed. He further stated that there was no record with his office

to indicate open space between plot no. 7 and 8.

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10. The Lease-Deed at Exh.27 mentions area of 100 ft. X 60 ft.

being leased out to the plaintiffs. The boundaries have been

mentioned in the Schedule to the Lease-Deed. On the Southern

boundary Plot No. 8 has been shown, while on the East and West sides,

open spaces have been shown. It is well-settled that where there is a

dispute between the area of the property which is identified by its

boundaries, the boundaries should prevail. Reference in that regard

can be made to the decisions in Sheodhyan Singh & others and

Subhaga and others [supra]. If on the basis of this legal position, the

evidence on record is scrutinized, it can be seen that as per the lease-

deed Plot No.8 is shown on the Southern side of Plot No.7 which was

leased out. If the Lease-Deed could mention open space on the East

and West sides of the leased property, normally the same would have

been mentioned if there was any open space on the Southern side of

Plot No.7. The witness examined by the defendants has in clear terms

admitted that there was no record with his office to indicate existence

of any open space between plot nos. 7 and 8. Thus, from the

aforesaid, if the boundaries as mentioned in the lease-deed are taken

into consideration, then the area of Plot No.7 upto its southern

boundary abutting Plot No.8 was leased out to the plaintiffs. This

finding recorded by both the Courts by preferring boundaries over the

area mentioned in the lease-deed does not call for any interference.

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11. Though it was urged on behalf of the appellant that the

plaintiffs cannot succeed on the basis of the weakness of the

defendant's case, on perusal of the lease-deed, its Schedule and the

other evidence on record, it cannot be said that the plaintiffs have

failed in proving their case. The admissions given by the witness

examined by the defendant, in fact, corroborate the case of the

plaintiffs as pleaded. Hence, the reliance placed by the learned

counsel for the appellant on the decisions in [a] State of Madhya

Pradesh, [b] State of Madhya Pradesh Vs. Ushadevi, and [c]

Rangammal, [supra] cannot further its case.

12. In so far as the aspect of perfection of title by adverse

possession is concerned, the appellate Court in para 18 of its judgment

has rightly held that the plaintiffs have not proved their hostile title

and possession to the knowledge of the defendant. As the plaintiffs

had pleaded to have come in possession on the basis of the lease-

deed, the plea of adverse possession was not accepted. This finding

recorded by the appellate Court does not call for interference.

13. Thus, on consideration of the entire evidence on record, it

will have to be held that the plaintiffs have succeeded in proving that

they were put in possession of Plot No.7 that was admeasuring 100 ft.

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X 95 ft. Their possession of the entire area would, therefore, be as

lessees in terms of the Lease-Deed dated 18th March, 1949 [Exh.27].

14. Hence, for aforesaid reasons, the substantial questions of

law as framed at Sr. Nos. (I) and (ii) are answered in favour of the

plaintiffs. Substantial question of law at Sr. No. (iii) is answered against

the appellant in view of the evidence on record. The Second Appeal is,

therefore, dismissed with no order as to costs.

Judge

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