Bombay High Court

Shaikh Rafikuddin Shaikh ... vs Shaikh Khalil Shaikh Jainuddin ... on 27 March, 2017

Bench: S.P. Deshmukh

                                    1                      SA-784.16.odt


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

                   SECOND APPEAL NO. 784 OF 2016
                                 WITH
                  CIVIL APPLICATION NO. 14644 of 2016

 1.       Shaikh Rafikuddin s/o Shaikh Jainuddin,
          Age 56 years, occup. labourer
          r/o Zaker Hussain Colony,
          Sillod, Dist. Aurangabad

 2.       Shaikh Salimuddin s/o Shaikh Jainuddin,
          Age 52 years, occup. and r/o as above .. Appellants/
                                                 orig.Defendants
                     versus

 1.       Shaikh Khalil s/o Shaikh Jainuddin,
          age 60 years, occup. Pensioner,
          r/o Dr. Zaker Hussain Colony,
          Sillod, Dist. Aurangabad

 2.       Sugrabee w/o Shaikh Jainuddin,
          age 80 years, occup. Nil,
          r/o Bilal Nagar, Sillod,
          Aurangabad

 3.       Rashidbee w/o Shaikh Bilal,
          age 30 years, occup. Household,
          r/o Borgaon Bazar, Tq. Sillod,
          Dist. Aurangabad

 4.       Saberabee w/o Shaikh Khalil,
          age 32 years, occup. Household,
          r/o Deulghat, Tq. Deulghat,
          Dist. Aurangabad

 5.    Sabiyabee w/o Shaikh Khalil,
       age 25 years, occup. Household,
       r/o Borgaon Bazar, Tq. Sillod,     .. Respondents/
       Dist. Aurangabad                     orig. Plaintiffs
                ------
 Mr. A. A. Khan, Advocate for appellants
 Mr. R. V. Gore, Advocate for respondent no. 1




::: Uploaded on - 18/04/2017                ::: Downloaded on - 27/08/2017 21:10:36 :::
                                            2                      SA-784.16.odt


                                  CORAM :      SUNIL P. DESHMUKH, J.

                                  DATE :       27th March, 2017

 ORAL JUDGMENT :


 1.       Heard learned counsel for the parties.

2. The second appeal purports to take exception to the

decree passed by trial court [civil judge, junior division,

Sillod] in regular civil suit no. 104 of 1988 on 01-12-2010

declaring the respondents - original plaintiffs to be lawful

owners of suit property and directing appellants-original

defendants to vacate possession of three rooms and clamping

injunction against them from causing obstruction to plaintiffs'

possession over open space. Matter was carried by

defendants in appeal bearing regular civil appeal no. 18 of

2011 which the appellate court [District Judge-4 Aurangabad]

dismissed on 20-08-2015. [Parties hereinafter are referred to

by their status in the suit].

3. The disputed property is a land plot having dimensions

55 ft. x 40 ft. situated at Sillod. Said plot has been purchased

by plaintiffs from its original owner Haji Gulam Gilani under a

registered sale deed in 1978. While sale deed is executed in

favour of plaintiffs, it referred to plot no. 46. Subsequently,

under a deed of correction dated 12-10-1988, number of the

3 SA-784.16.odt

property was corrected and the vendor admitted the same to

be plot no.47 and not plot no. 46 as had been shown to have

been sold under the registered sale deed referred to above.

4. The defendants who are the brothers of plaintiff no. 1

were given three rooms for temporary residence. While

subsequently construction was intended by plaintiff, the

defendants purported to object to the same. In the

circumstances aforesaid suit ensued.

5. Defendants no. 1 and 2 had filed their written

statement. Defendant no. 1 has averred that it is in fact

defendant no. 1 who has purchased suit property and had

constructed rooms thereon. It is their case that actual

consideration of ` 200/- was paid by defendant no.1.

6. During the trial, defendant no. 1 expired and his legal

heirs were brought on record.

7. The trial court had framed necessary issues about

ownership of plaintiffs and about as to whether the

defendants proved that defendant no. 1 had purchased suit

plot and about obstruction by defendants to plaintiffs'

possession over the property. The trial court had considered

the factual position on appreciation of evidence as had been

4 SA-784.16.odt

adduced and found the plaintiffs to be owners of suit property

and that defendant no. 1 had failed to show that it is

defendant no. 1 who had in fact purchased the property. The

obstruction was held to be proved and in the circumstances

decree of declaration of ownership with injunction restraining

defendants from disturbing plaintiffs' possession was passed.

8. As stated earlier, the matter was carried in appeal by

the defendants. The appellate court as well framed the points

for determination as were the issues before the trial curt and

found the plaintiffs to be the owners and that the defendants

had failed to show that defendant no. 1 had purchased suit

property nor could they prove that defendant no. 1 had

constructed rooms over suit property. The appellate court has

in paragraphs no. 14 to 18 of its judgment observed as

under;

'' 14. The defendants stated that defendant no. 1 purchased that property from out of his earnings. D.W. 1 Shaikh Rafiquddin in his cross-examination stated that the plaintiff is elder than him. His father retired from the post of Police Jamadar on 01-10-1975. Before working at Sillod, his father was working at Ambad, Aurangabad etc. When, suit plot was purchased, he was 18 years old and plaintiff was 23 years old. On the date of execution of sale deed, he was not present there. He does not know who were other

5 SA-784.16.odt

witnesses present at the time of that transaction. Thus, he had no personal knowledge that who had paid amount of consideration to the vendor. He admitted that in the sale - deed name of the plaintiff is mentioned as purchaser-owner of that property. Since beginning, name of plaintiff was recorded in Grmapanchayat and Municipal record. The electric connection of suit property was also obtained in the name of plaintiff. The plaintiff is paying it's bill. Plaintiff is paying house property tax. He volunteered that his father used to pay amount for said payment, but, he does not know on which date and how much amount was paid by his father. Thus, he has no personal knowledge about that also. He personally never went to deposit amount of tax. He admitted that the receipts of tax are in possession of plaintiff. He has stated that Plot No. 46 and 47 are different. After retaining Plot No.46, correction was made in sale- deed. This version of this witness is totally contrary to the plaintiffs case. There is absolutely no evidence about it. Plaintiff has come out with a case that while executing sale-deed only mistake was happened in mentioning the plot number. The plot sold to him and put in his possession was one and the same. Only on paper that mistake was got corrected.

15. This witness further stated that he does not know in which year his father had made construction on the suit plot. From where construction material was brought also does not known to him. He has no receipts of building material purchase. He does not know whether building construction permission was obtained from local authority or not. He does not know how many period was spent in completing the construction. He claimed that one Babubhai meson had made construction of that house.

6 SA-784.16.odt

16. In this case, defendant no. 3 did not file his written statement. But, he has filed affidavit in lieu of evidence and claimed that his father purchased that plot from previous owner Gulam Jilani. Thereafter, his father had constructed that house consisting of five rooms from his earning. In cross-examination, it has come on record that he has no knowledge about following things :-

                  A.       Who was previous owner of that plot.
                  B.       At the time of purchase, he was not present there. He

claims that his father had purchased that plot in lieu of Rs.5000/-. But, in his presence that amount was not paid by his father.

C. When his father made construction of that house. D. Whether building permission was obtained or not.

17. D. W. 3 Syed Babu Syed Lal claims that he is meson by profession. He claims that construction of that house was done by him before about 21 years ago prior to his deposition. In cross- examination, he has stated that he has no knowledge as to from whom that plot was purchased, what is area of that plot, whether building permission was obtained or not, in which year construction was done, from where building material was purchased. No written agreement took place between him and owner of that house. Thus, except his bare words, there is absolutely no evidence to show that he has made construction of that house. He admitted that defendant no. 2 Shaikh Rafiquiddin had brought him to give that deposition in Court and defendant no. 2 has borne expenses of bringing him in the Court. It shows that he is tutored witness of defendants. From this evidence, it is duly established that there is absolutely no evidence with defendants to prove that income of deceased

7 SA-784.16.odt

defendant Shaikh Jainoddin. They have also no evidence to prove that Shaikh Jainoddin had purchased that from his income and then made construction of said house on that plot from his income. Only to falsely claim ownership over the suit property, they have raised this false defence.

18. On the other hand, plaintiff had proved that suit plot was purchased by him. It's sale-deed is standing in his name His name is appearing in record of rights as owner and possessor of that plot. He is paying municipal taxes. The electric connection is also standing in his name. Therefore, there is no merit in the defense of the defendants that there was joint family of deceased defendant no 1 Shaikh Jainoddin and his sons and for that family, Shaikh Jainoddin purchased the suit plot and made construction of house from his own earning and therefore, ownership right of that house was conferred on defendants. ''

9. Learned counsel for the defendants submits that as a

matter of fact there is a written document executed between

father of the plaintiff no.1, i.e. defendant no. 1 and the

original vendor, however, the same has not been taken into

account although that has been placed on record.

10. Countering aforesaid, learned counsel for plaintiffs

points out that neither there is pleading to that effect nor the

document has been exhibited nor it is a case that document

could have been read in evidence as it is an unregistered

document. He submits that the document is not even

8 SA-784.16.odt

notarized, further pointing out that consideration amount