Bombay High Court
Alka Jagannath Khairnar vs Devilal Ramlal Jaiswal & Another on 5 June, 2017
Bench: V.K. Jadhav
1 SECOND APPEAL No153.1994.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.153 OF 1994
Alka W/o Jagannath Khairnar,
Age. 41 years, Occu. Household,
R/o. Vita, Tq. Kannad, Dist. Aurangabad,
presently residing at Samarth Nagar,
Kannad, Dist. Aurangabad. ...APPELLANT
(Orig. Plaintiff)
Versus
1. Devilal S/o Ramlal Jaiswal (Died)
Deceased through legal representatives
1(a) Traymbak S/o. Devilal Jayaswal (Son)
Age. 45 years, Occu. Trader,
R/o. Samarathnagar, At Post Kannad,
Dist. Aurangabad.
1(b) Rajendra S/o Devilal Jayaswal (Son)
Age. 35 years, Occu. Trader,
R/o. Snehnagar, House of Shri. Bhalerao,
At Post Kannad, Dist. Aurangabad.
1(c) Ramu S/o Devilal Jayaswal,
Age. 30 years, Occu. Trader,
R/o. Samarathnagar, At Post Kannad,
Dist. Aurangabad.
1(d) Shilabai W/o Devilal Jayaswal (Wife)
Age. 65 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad. (Deleted).
1(e) Mrs. Sharda Jayaswal (Daughter)
Age. 30 years, Occu.Household work,
R/o. Panvadod, Tal. Sillod,
Dist. Aurangabad.
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2 SECOND APPEAL No153.1994.odt
1(f) Lakshmi D/o. Devilal Jayaswal (Daughter)
Age. 42 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad.
1(g) Koku (Kokila) D/o Devilal Jayaswal (Daughter)
Age. 34 years, Occu. Household work,
R/o. Hasta, Tal. Kannad,
Dist. Aurangabad.
2. Kachrulal S/o Chhbulal Jaiswal,
Age. 49 years, Occu. Trader,
R/o. Samarth Nagar, Kannad,
Dist. Aurangabad. ...Respondents
(Orig. Defendants)
...
Mr P.R Patil Advocate for appellant.
Respondents - served absent.
...
CORAM : V.K. JADHAV, JJ.
...
Reserved on : May 3, 2017
Pronounced on : June 5, 2017
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and order passed
by the Extra Joint District Judge, Aurangabad, dated
4.12.1993 in Regular Civil Appeal No.325/1987, the
original plaintiff has preferred this second appeal.
2. Brief facts, giving rise to this second appeal, are as
follows :-
a] One Sandulal s/o Mohanlal was the owner of the
3 SECOND APPEAL No153.1994.odt
land Survey No.6, admeasuring 3 Acres 24 Gunthas
situated within the municipal limits of Kannad. On
17.11.1962, said Sandulal had obtained permission for
converting the said land into non-agriculture land and
accordingly converted the said land into plots and sold it
to the various persons. In the year 1969, one
Ratnaprabhabai w/o Bhagwantrao Ghadage had
purchased the plot measuring East-West 45 Feet and
South-North 30 Feet from the said Sandulal for a
valuable consideration of Rs.500/- and obtained
possession of the plot, however, registered sale deed of
the said plot came to be executed in her favour by
vendor Sandulal on 12.7.1971. It is further case of the
appellant-plaintiff that said Ratnaprabhabai had sold
the said plot to the appellant-plaintiff under registered
sale deed dated 21.6.1973 for a valuable consideration of
Rs.1,000/- and possession of the said plot was delivered
on the day of execution of the sale deed. Thus, the
appellant-plaintiff remained in possession of the said
plot since the date of execution of the sale deed till
15.7.1979. It is further case of the appellant-plaintiff
that towards southern side of the suit plot, Municipality
4 SECOND APPEAL No153.1994.odt
Kannad has constructed a new road East-West in
direction and as such the plot of respondent-defendant
no.1 situated towards southern side of the suit plot
came to be acquired for construction of the said road
and as such, no such plot belonging to the respondent-
defendant no.1 remained in existence. However, the
respondent-defendants by taking advantage of the fact
that the appellant-plaintiff is a woman, made
encroachment on the suit plot and further started tying
the cattle by constructing a temporary cattle-shed in the
suit plot on 15.7.1979. The appellant-plaintiff has
therefore, constrained to institute a RCS No.97/1979 for
removal of the encroachment as well as for recovery of
the possession of the suit plot.
b] Respondents-original defendants strongly resisted
the said suit by filing written statement at Exh.14. The
respondents-defendants have denied the ownership and
possession of the said Ratnaprabha Gadge over the suit
plot and also denied the sale deed dated 12.7.1971
executed in favour of said Ratnaprabha by Sandulal.
According to the respondents-defendants, said Sandulal
5 SECOND APPEAL No153.1994.odt
Jaiswal had sold the plot measuring 45 x 30 feet for a
valuable consideration of Rs.700/- under the registered
sale deed dated 9.8.1967 in favour of the respondent-
defendant no.1 and there are lanes towards East-West
and southern side of the said plot and a plot of vendor
Sandulal towards northern side which he had
subsequently sold to one Shyamrao Kale. According to
the respondents-defendants, respondent-defendant no.1
is in possession of the said plot as a owner thereof from
the date of execution of the said sale deed and he is
enjoying said property by making temporary
construction over it. According to the respondents-
defendants, towards southern side of the said plot,
Municipality Kannad had constructed 40 feet of road
and only 8 feet space of the aforesaid plot belonging to
the respondents-defendants came to be acquired for the
said road. The sale deed dated 12.7.1971 allegedly
executed in favour of Ratnaprabhabai Ghadge is bogus
and false sale deed. Same was executed in collusion
with Sandulal Mohanlal. The appellant-plaintiff was not
in possession of any property as an owner. It has been
contended that husband of appellant-plaintiff is a
6 SECOND APPEAL No153.1994.odt
Government Servant and he tried to dispossess the
respondent-defendant no.1 from the said plot.
Respondent-defendant no.1 is in possession of the said
plot since the date of execution of the said sale deed and
respondent-defendant no.1 has made construction of
the cattle-shed over the said plot and using the said
cattle-shed for tying the cattles. According to
respondents-defendants the suit is false and same is
liable to be dismissed.
c] On the basis of the rival pleadings of the parties to
the suit, the learned Judge of the Trial Court has
framed issues and both the parties to the suit lead oral
and documentary evidence in support of their rival
contentions.
d] The learned Jt. Civil Judge, J.D., Kannad by its
judgment and decree dated 11.11.1987 decreed the suit
of the appellant-plaintiff and thereby permitted the
appellant-plaintiff to recover the possession of the suit
plot and further directed the defendants to remove all
construction over the suit plot within a period of one
7 SECOND APPEAL No153.1994.odt
month and hand over the vacant possession of the suit
plot to the appellant-plaintiff.
e] Being aggrieved by the same, the respondent-
original defendants have preferred Regular Civil Appeal
No.325/1987 and the learned extra Jt. District Judge,
Aurangabad by impugned judgment and order dated
29.11.1993/4.12.1993 allowed the appeal and thereby
set side the judgment and decree passed by the Trial
Court. The learned Extra Jt. District Judge had
dismissed the suit. Hence, this second appeal.
3. The appellant-original plaintiff claims that, ground
nos.A to G of the appeal memo involves substantial
question of law. The same are as follows :-
A. Whether learned appellate Court was
wrong in observing that the appellant has
not produced certified copy of sale deed of
Shamrao Kale on record. Whether non-
consideration of this material document has
resulted into miscarriage of justice?
B. Whether the learned appellate Court was
wrong in refusing to look into the original
documents produced by the Municipal
Council showing that complete plot owned
by respondent no.1- Devilal is acquired for
the purposes of road ?
8 SECOND APPEAL No153.1994.odt
C. Whether certified copy of public records like
records maintained by Municipal Council in
its due course of business, can be
discarded on the ground that the person
producing it may not have personal
knowledge of these documents ?
D. Whether certified copies of public records
are admissible in evidence unless proved
otherwise ?
E. Whether the learned appellate Court has
failed to frame proper points for its
determination ?
F. Whether the learned appellate Court's
misinterpretation regarding boundaries of
the plot has resulted ultimately into
miscarriage of justice ?
G. Whether the Court is permitted to invent a
new case for the parties and decide a case
on the basis of hypothesis and a case
which is not made out in the pleadings
itself ?
4. The learned counsel for the appellant submits that
respondent-defendant No.1 Devilal had purchased the
plot admeasuring 45x30 feet and as per the contention
of respondent-defendant no.1 Devilal, towards northern
side of his plot, there is a plot of Shyamrao Kale. Said
Shyamrao Kale had purchased the plot from Sandulal
under the registered sale deed dated 14.10.1967. The
lower Appellate Court has incorrectly observed that the
9 SECOND APPEAL No153.1994.odt
sale deed executed in favour of Shyamrao Kale is not
produced on record. However, the said sale deed was
produced on record. As per four boundaries of the said
plot purchased by Shamrao Kale, towards southern
side, the land sold to Bhagwantrao Talathi is shown.
Admittedly, Ratnaprabhabai (Vendor of the appellant-
plaintiff) is wife of said Bhagwantrao Talathi. The
appellant-plaintiff has proved registered sale deed
exh.48 dated 12.7.1971 executed in favour of
Ratnaprabhabai by the original owner Sandulal.
Respondent specifically mentioned in the said sale deed
exh.48 that suit plot was sold two years back and
possession of the suit plot was handed over to
Ratnaprabhabai at that time, though sale deed came to
be executed on 12.7.1971. The learned counsel for the
appellant-original plaintiff submits that in the notice
published by the Chief Officer, Municipal Council,
Kannad in respect of an application submitted by the
said Shyamrao Kale seeking permission for construction
over the portion of his plot, it has been specifically
mentioned that towards southern side of the said plot,
plot of Bhagwantrao Ghadge is situated. The learned
10 SECOND APPEAL No153.1994.odt
Judge of the lower Appellate Court has considered the
date of sale deed executed in favour of Ratnaprabhabai
Exh.48 and ignored the recitals of the said sale deed
that said plot was sold to Ratnaprabhabai (wife of
Bhagwantrao Ghadge) two years prior to the execution
of the sale deed. Consequently, the lower appellate
Court has erroneously observed that Municipal Council
or Shyamrao Kale could have not imagined on 12.4.1968
that in the year 1969, Bhagwantrao Ghadge was going
to enter into an agreement of sale in the name of his
wife with original owner Sandulal and sale deed
regarding same would be executed in the year 1971.
5. The learned counsel submits that, even nobody
had imagined that there would be a dispute about the
boundaries in the year 1979. Respondent-defendant
no.1 Devilal if had any grievance, he would have
immediately objected the description of the boundaries
in respect of the construction permission sought by said
Shyamrao Kale. In the year 1978, Municipal Council
Kannad had constructed a 40 feet wide road and as
such, the plot owned by the appellant-original plaintiff,
11 SECOND APPEAL No153.1994.odt
respondent-defendant Devilal and others came to be
affected. Learned counsel submits that respondent-
defendant no.1 Devilal's plot came to be fully acquired
for the purpose of the road. The Lower Appellate Court
has erroneously given reference to the provisions of the
Land Acquisition Act and observed that the record
about the acquisition of the land for the purpose of the
construction of the road in terms of the provisions of
section 4,6 etc of the Land Acquisition Act ought to have
been produced before the Trial Court. Learned counsel
submits that in terms of the provisions of section 126
(2) of the Maharashtra Regional Town Planning Act,
1966, it is permissible to acquire the land by private
negotiations. The same is also evident from the
documents produced by the appellant-original plaintiff
alongwith civil application No.5406/1994 before this
Court in the Second Appeal. This Court while granting
Rule directed that, said civil application be heard
alongwith the second appeal. Thus, the observations
made by the lower appellate Court are unwarranted and
perverse. On perusal of certified copies of the
documents submitted alongwith civil application
12 SECOND APPEAL No153.1994.odt
No.5406/1994, it is clear that the plot of respondent-
defendant no.1 Devilal was entirely acquired for the
purpose of 40 feet wide road. Respondents-original
defendants by taking undue advantage of the fact that
the appellant-original plaintiff was residing at the village
and not at Kannad, encroached upon the suit plot and
further raised a false plea that sale deed in favour of the
appellant-original plaintiff is bogus document. It is
pertinent to note that, respondent-defendants have not
made any counter claim seeking declaration to that
extent. The learned Judge of the Trial Court has rightly
decreed the suit, however, the lower appellate Court
invented a new case for the parties and decided the
appeal on the basis of hypothesis and a case which is
not made out in the pleadings. Thus, the impugned
judgment and order passed by the Lower Appellate
Court is liable to be quashed and set aside by
confirming the judgment and decree passed by the trial
Court.
6. Though respondents duly served, none appears for
them.
13 SECOND APPEAL No153.1994.odt
7. According to the appellant-original plaintiff, one
Ratnaprabhabai had purchased the suit plot from the
original owner Sandulal in the year 1969, however,
registered sale deed in respect of the suit plot came to
be executed on 12.7.1971. The sale deed executed in
favour of Ratnaprabhabai by the original owner
Sandulal is duly proved by the appellant-plaintiff and
the same is marked at Exh.48. It is the contention of
the appellant-plaintiff that, said Ratnaprabhabai sold
the suit plot in her favour under the registered sale deed
for a valuable consideration on 21.6.1973. The
appellant-plaintiff has duly proved the sale deed
executed by Ratnaprabhabai in her favour and the same
is marked at Exh.49. Undisputedly, said Sandulal was
the original owner of the suit plot.
8. It is the contention of the respondents-defendants
that, on 9.8.1967 respondent-defendant no.1 had
purchased two plots from the said Sandulal.
Respondent-defendant has duly proved said sale deeds
those are marked at Exh.102 and 103 respectively. So
far as property sold under registered sale deed exh.103
14 SECOND APPEAL No153.1994.odt
is concerned, the same is not in dispute. Sale deed
Exh.102 is in respect of the plot admeasuring 45 x 30
feet.
On careful perusal of the sale deed Exh.48 and
Exh.102, it appears that, original owner Sandulal sold
the plots to the appellant-plaintiff and respondent-
defendant no.1 as per the boundaries as detailed in the
said respective sale deeds. Boundaries as detailed in
the sale deed Exh.48 and 102 respectively are
reproduced herein below :-
Sale deed Exh.48 - Executed by original owner
Sandulal in favour of Ratnaprabhabai (vendor of
appellant-original plaintiff)
East :- Lane
West :- Lane
South :-Plot of respondent-defendant No.1 Devilal.
North :- Plot of Shri Shyamrao Kale.
Sale deed Exh.102:- Plot sold by the original
owner Sandulal in favour of respondent-defendant No.1
Devilal.
East :- Lane
West :- Lane
South :- Lane
North :- Vendor's (Sandulal's) own land.
15 SECOND APPEAL No153.1994.odt
It thus appears that, original owner Sandulal
when sold the plot to respondent-defendant no.1 Devilal
under the registered sale deed Exh.102 in the year 1967,
towards northern side of the said plot, the remaining
land of the vendor i.e. (Sandulal) has been mentioned.
In the year 1971, when the original owner Sandulal sold
the suit plot under the registered sale deed exh.48 in
favour of Ratnaprabhabai, as per the boundaries shown
in the sale instance exh.48, towards southern side plot
of respondent-defendant no.1 Devilal is shown and
towards northern side plot of Shyamrao Kale is shown.
As per the boundaries shown in the sale deed Exh.102,
it is clear that, to the southern side there is a lane/road
and as such, abutting said land, plot of respondent-
defendant no.1 Devilal is situated. The respondent-
defendant no.1 Devilal in paragraph no.4 of his cross-
examination also admitted that there was no any plot in
between his plot and lane/road which is to the south of
the said plot. He has also admitted in the same
paragraph that, presently road has been prepared on
the said old lane. In the sale deed exh.102, towards
northern side, land of vendor Sandulal is shown and as
16 SECOND APPEAL No153.1994.odt
per the boundaries shown in the sale deed Exh.48,
towards southern side plot of respondent-defendant no.1
Devilal is shown and towards northern side plot of
Shyamrao Kale is shown. Undisputedly, vendor
Sandulal sold the plot to said Shyamrao Kale.
Respondent-defendant no.1 Devilal in paragraph no.5 of
his cross-examination has also admitted that to the
north of the suit plot, there is a constructed house of
Shyamrao Kale which is built according to the
permission granted by the Municipal Council.
9. Sale deed executed in favour of Shyamrao Kale by
the original owner Sandulal was placed on record before
the trial court alongwith list Exh.38. None of the
parties disputed said transaction and as such, trial
court ought to have exhibited said sale deed. The lower
appellate court on the other hand has erroneously
observed that sale deed executed in favour of Shyamrao
Kale was not placed on record.
10. The appellant-original plaintiff has examined
witness No.5 Gautam Jain, who is in service of
17 SECOND APPEAL No153.1994.odt
Municipality, Kannad since 1969. He has deposed
before the Court as per the record of the Municipality
Kannad brought by him before the Court. The
document pertaining to permission for construction of
the house granted by the Municipality Kannad in favour
of Shyamrao Kale for construction of house on his plot
and also the copy of proclamation inviting objections,
came to be duly proved through this witness and those
are marked at Exh.86 and 85 respectively. In the
proclamation exh.85, boundaries have been shown and
towards the southern side of the plot of Shyamrao Kale,
plot of Bhagwantrao is shown. Bhagwantrao is the
husband of said Ratnaprabhabai and as per exh.48 sale
deed came to be executed in favour of Ratnaprabhabai
i.e. wife of Bhagwantrao. Even, on perusal of the sale
deed executed in favour of Shyamrao produced on
record alongwith list of the document exh.38, it appears
that towards southern side of the plot sold to Shyamrao
Kale, plot of Bhagwantrao is shown. The lower appellate
Court has not considered all these documents for the
reason that original owner Sandulal sold the suit plot to
Ratnaprabhabai in the year 1971 and, as such, there is
18 SECOND APPEAL No153.1994.odt
no question of mentioning the plot of Bhagwantrao (suit
plot) in the boundaries as shown in the sale deed
executed in favour of Shyamrao Kale in the year 1967
and similarly in the said proclamation published by the
Municipality Kannad in the year 1968. On careful
perusal of the contents of the sale deed Exh.48, it is
clear that though the sale deed was executed in the year
1971 in favour of Ratnaprabhabai, possession of the plot
was already handed over prior to two years to
Ratnaprabhabai by accepting consideration. The exact
date of delivery of possession is not mentioned in the
sale deed exh.48, however, inference could be drawn
that said plot since sold to Bhagwantrao, who happened
to be the husband of Ratnaprabhabai, in the sale deed
executed in favour of Shyamrao Kale as well as in the
proclamation issued by the Municipality Kannad,
towards southern side of the plot of Shyamrao Kale, suit
plot was shown.
11. The appellant-original plaintiff has examined
employee of Municipality Kannad Gautam Jain. He has
deposed that Municipality Kannad had constructed a
19 SECOND APPEAL No153.1994.odt
road which joins Samaj Mandir and new Bus stand and
towards north side of the said road, there is a plot of the
appellant-original plaintiff. He has further deposed that
Government has sanctioned compensation to those
persons who are affected by the construction of the said
road. He has brought with him original file in that
respect. In the said file, there is list of the persons to
whom compensation was to be paid. Said list is
produced before the Court and marked at Exh.88. On
perusal of the said list Exh.88, it appears that, entire
plot of respondent-defendant no.1 Devilal came to be
acquired for the purpose of construction of the said road
and so far as suit plot is concerned, the only portion
measuring 8 feet from the suit plot came to be acquired
for construction of the said road.
12. The appellant-original plaintiff has also filed civil
application bearing no.5406/1994 for production of the
additional evidence. By order dated 25.3.1996 this
Court has granted Rule and further directed that civil
application be heard alongwith second appeal. Certified
copies of the public documents are produced on record
20 SECOND APPEAL No153.1994.odt
alongwith said civil application. The Chief Officer, Nagar
Parishad, Kannad has issued a certificate dated
28.9.1994 mentioning therein that entire plot of the
respondent-defendant no.1 Devilal measuring 45x30 feet
total admeasuring 1350 square feet came to be acquired
for the construction of the road 40feet in width in the
direction of Samaj Mandir to S.T.Sand and the
compensation amount of Rs.8,154.90/- also sanctioned
for acquisition of the said plot. Similarly, map of the
road showing the plot portion affected is also placed on
record alongwith said civil application. At serial No.4 of
this map, name of respondent-defendant no.1 Devilal is
clearly shown and his whole plot admeasuring 30x45
feet shown to have been acquired for the purpose of the
development of the road. Said map is maintained by the
Municipality Kannad and it is also prepared by the
Architecture of the Municipal Council. It is also signed
by the Chief Officer of the Municipal Council. It is a
public document. Even though, the appellant-plaintiff
has examined witness Mr. Gautam Jain, and though
this witness has brought entire file of the Municipal
Council, Kannad before the Court, the aforesaid
21 SECOND APPEAL No153.1994.odt
documents were not produced before the Court. No
doubt, this has been resulted into miscarriage of justice.
All these documents are the public documents and
within the knowledge of the respondents. These
documents are material documents in determination of
the issues raised by the parties. In view of this, I accept
the documents submitted alongwith aforesaid civil
application as an additional evidence before this Court
for the just disposal of the appeal.
13. In view of the above, it is clear that towards
northern side of the plot of respondent-defendant no.1
Devilal, suit plot is situated and the plot of Shyamrao
Kale is situated towards northern side of the suit plot.
There is no plot in between the southern side lane and
the plot possessed by respondent-defendant no.1 Devilal
prior to the construction of the said road by the
Municipality Kannad. The learned Judge of the Trial
Court has, therefore, rightly decreed the suit of the
plaintiff in terms of the prayer clauses with the specific
observations that the plot owned and possessed by
respondent-defendant no.1 Devilal came to be acquired
22 SECOND APPEAL No153.1994.odt
by the Municipality Kannad for the construction of the
road and said plot was other than the suit plot. The
lower appellate Court has however recorded the finding
which is contrary to the record. The Lower Appellate
Court has erroneously held that the plot sold to
Ratnaprabhabai and by Ratnaprabhabai to the
appellant-original plaintiff is not in existence and as
such, there is no question of encroachment made by the
respondent-original defendants on the plot as alleged in
the plaint. Respondent-defendant no.1 Devilal has
simply denied the execution of the sale deed of the suit
plot in favour of Ratnaprabhabai by the original owner
Sandulal. It is not the case of respondent-defendant
no.1 that plot owned by him, has been sold by the
original owner Sandulal to Ratnaprabhabai. The Lower
Appellate Court has invented a new case for the parties
which is not made out in the pleadings. Thus, the
judgment and order passed by the Lower Appellate
Court suffers from perversity and requires interference.
The impugned judgment is thus liable to be quashed
and set aside. The learned judge of the trial court has
rightly decreed the suit. Hence, following order.
23 SECOND APPEAL No153.1994.odt
O R D E R
1. Appeal is hereby allowed with costs.
2. The judgment and order passed by the Extra
Joint District Judge, Aurangabad, dated
4.12.1993 in Regular Civil Appeal No.325/1987
is hereby quashed and set aside.
3. The judgment and decree passed by the Jt.
Civil Judge J.D., Kannad dated 11.11.1987 in
Regular Civil Suit No.97/1979 stands
confirmed.
4. Appeal is accordingly disposed of.
( V.K. JADHAV, J. )
...
aaa/-
