Smt.Bharti Devi W/O Kishore Kumar ... vs Smt.Anusayabai W/O Namdeorao ...
2017 Latest Caselaw 270 Bom

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


                         SECOND APPEAL NO. 324 OF 2003


            Smt. Bharti Devi w/o Kishor Kumar Maheshwari,
            aged about 45 years, R/o. 16, Ashwini Kunj,
            Chitnya Nagar, Nari Road, Nagpur......          APPELLANT
                                                          Org.Deft.

                                  ...VERSUS...

         Smt. Anusayabai w/o Namdeorao Wahane,
         aged about 58 years, R/o. Anathastram,
         Near Sahyog Nagar, Nari Road,
         Nagpur                                   ......                     RESPONDENT
                                                                            Org.Plff.
 -------------------------------------------------------------------------------------------
 Smt. U.A.Patil, counsel for appellant.
 Shri  C.S.Dhore, counsel for Respondent 
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

st DATE : 1 MARCH, 2017 .

ORAL JUDGMENT

1] The trial Court passed a decree in Regular Civil

Suit No. 758 of 1996 on 30.03.2001. The operative portion of

the order is reproduced below.

                           "i.    Suit is decree with cost.

                           ii.    Defendant shall handover possession of suit plot

no. 134 situated at mouza Nari on Khasara No. 141-1, 145-3, 146 shown in schedule of property attached with Exh.1, within a month.

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                           iii.    Defendant   is   permanently   restrained   from

alienating/ transferring suit plot to third person.

iv. Separate enquiry under Order 20, Rule 1 and 2 of C.P.C is allowed.

v. Decree be drawn accordingly".

The lower appellate Court has dismissed the appeal. Hence,

the original defendant is before this Court.

2] It is not in dispute that the suit property consist of

Plot NO. 134, which was owned by the society. The plaintiff

claimed to have purchased this plot from the society by

registered sale deed dated 23.08.1988 and the suit was filed

for removal encroachment by the defendant on this plot. It

was the stand taken by the defendant that he has purchased

the suit property on 02.02.1990 from one Shri Khandekar,

who became the owner on the basis of agreement of

development entered into between the society and Shri

Khandekar. The trial Court rejected the claim of the

defendant that Plot No. 134 and Plot No. 16 are one and the

same. There is no evidence brought to the notice of this

Court to assail such finding.

          3]               This matter was admitted on 08.04.2004, on the




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substantial questions of law framed at Sr. Nos. 1 and 2 in the

memo of appeal, which are reproduced below.

"[1] Whether the judgment and decree passed by the Courts below which is under challenge in this appeal directing the appellant to handover the possession of plot in dispute to the respondent is propossed valid when the earlier judgment and decree about declaration, possession and ownership and title is already passed by the 4 th Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No. 1242/91, dated 03.10.1996 in favour of the appellant with regard to the same property?

[2] Whether the suit of respondent for possession and permanent injunction was maintainable without seeking any declaration about the validity of the sale deed, which is in favour of the appellant and whether the lower Courts can pass the decree of possession without setting aside the sale-deed which is already in existence in favour of the appellant".

4] Regular Civil Suit No. 1242 of 1991, decided on

03.10.1996 pertains to Plot No.16, whereas the suit in

question pertains to Plot No. 134. In view of the concurrent

findings of fact recorded by both the Courts below that the

defendant has failed to establish that both the plots are one

and the same, the question of decision rendered in Regular

Civil Suit No. 1242 of 1991 is of no consequence and has no

bearing on the controversy involved in the present second

appeal. The substantial question of law framed at Sr.No.[1]

does not at all arise in the present matter.

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           5]              So   far   as   the   substantial   question   of   law   at

Sr.No.[2] is concerned, in the absence of any sale deed in

favour of the defendant in respect of Plot No. 134, which was

the subject matter of the suit in question, this question also

does not call for any consideration.

In the result, the second appeal is dismissed.

No order as to costs.

JUDGE

Rvjalit