Smt Kokila Babarao Raut & 3 Others vs Dhanrajh Shamraoji Dhomne
2017 Latest Caselaw 732 Bom

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

                    Second Appeal No.7 of 2004


  1. Smt. Kokila wd/o Babarao Raut,
     Aged about 54 years,
     R/o Kopra, (Chanki), Tq. Seloo,
     Distt. Wardha.

  2. Gajanan s/o Babarao Raut,
     Aged about 38 years,
     through Power of Attorney,
     i.e. Appellant No.3,
     R/o Satoda, Tq. & Distt. Wardha.

  3. Sanjay Babarao Raut,
     Aged 34 years,
     R/o Kopra, (Chanki), 
     Tq. Seloo, District Wardha.

  4. Sau. Archana w/o Vinodrao Salawe,
     Aged about 30 years,
     R/o Sonegaon (Station),
     Tq. Hinganghat,
     District Wardha.

        (Appellants no.1 to 4 are L.Rs. of
        Original plaintiff).                     ... Appellants

        Versus

  Dhanraj s/o Shamraoji Dhomne,
  through :

  (i)      Kusumbai wd/o Dhanraj Dhomne,
           Aged about 62 years,




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           Occupation - Household.

  (ii)     Ashok s/o Dhanraj Dhomne,
           Aged about 45 years,
           Occupation - Cultivator.

  (iii)    Kishor s/o Dhanraj Dhomne,
           R/o Bhaji Bazar Tarkheda,
           Near Kala Maroti,
           Taluka & Dist. Amravati.

  (iv)     Sheela w/o Ramchandra Bhoge,
           Aged about 43 years,
           Occupation - Household,
           R/o Hanuman Nagar, 
           Malipura, Amravati,
           Tah. and Dist. Amravati.

  (v)      Vidya w/o Dhanraj Kale,
           Aged about 42 years,
           Occupation - Household,
           R/o Kholapuri Gate,
           Malipura, Amravati,
           Tah. and Dist. Amravati.

           Respondent Nos.(i), (ii), (iv) and (v)
           R/o Kopra (Chanki), Tah. Seloo,
           Dist. Wardha.                          ... Respondents



  Shri   Prasad   Dharaskar,   Advocate,   holding   for   Shri   Anand 
  Parchure, Advocate for Appellants.


                Coram : R.K. Deshpande, J.

th Dated : 15 March, 2017

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Oral Judgment :

1. The Trial Court passed a decree in Regular Civil Suit

No.141 of 1994 on 29-4-1999, whereby the defendant is directed

to remove the encroachment on the lane shown in red colour in

the plaint map by letters A H S R T I and also the gate (Kawadi),

which is at the southern edge of the lane. The defendant is

further directed to deliver the possession of the said disputed

lane to the plaintiff. The counter-claim filed by the defendant for

ownership over the said lane was dismissed. The lower Appellate

Court has allowed Regular Civil Appeal No.114 of 1999 on

2-9-2003 and the decree passed by the Trial Court in favour of

the plaintiff has been set aside. The counter-claim and

cross-objection are also dismissed. Hence, the original plaintiff is

before this Court in this second appeal.

2. The dispute before the Courts below was in respect of

the lane shown in the plaint map by letters A H S R T I having

length of 52 feet east-west from the northern boundary of the

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property belonging to the defendant and width of 11 feet

north-south from the said property. The plaintiff claimed

ownership over the disputed lane on the basis of the registered

sale-deed dated 18-2-1980 at Exhibit 38 executed by PW 2

Prabha d/o Madanlal Ladbhaiyya and her sister Suman Kapoor.

The defendant also claimed ownership over the said lane on the

basis of the registered sale-deed dated 29-1-1969 at Exhibit 43

from said Suman Kapoor.

3. Both the Courts below are concurrent in rejecting the

claim of the defendant for ownership over the disputed lane.

Such finding is not challenged by the defendant in this second

appeal and hence the same is to be treated as final. On the

question of ownership over the disputed lane and removal of

encroachment by the defendant over it, the Trial Court holds that

the defendant has encroached upon the disputed lane. It relies

upon the map at Exhibit 1-A prepared on the basis of

measurement by Surveyor PW 4 Gajanan Admane. It holds that

the open land is the property of the plaintiff and the defendant

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has encroached upon it. The lower Appellate Court records the

finding that the plaintiff has failed to establish ownership over

the said land on the basis of the registered sale-deed

dated 18-2-1980 at Exhibit 38 and hence he is not entitled to a

decree for removal of encroachment and possession.

4. On 19-10-2005, this Court passed an order as under :

" Heard learned counsel for the appellants. Second Appeal is admitted as to the following substantial questions of law framed in paras 2, 3 and 6 of the memo of appeal.

C.A. No.110/04 :

Notice."

The substantial questions of law at serial Nos.2, 3 and 6, which

are reflected in the paper-book as B, C and F, are reproduced

below :

"B] Whether the learned First Appellate Court was right in ignoring the ratio laid down by the Hon'ble

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Supreme Court in the case of Narayan -Vs- Gopal reported in AIR 1960 Supreme Court - Page-100? Whether the judgment of the lower appellate Court can be sustained in view of the perverse reasoning adopted by it while considering the evidence of the Plaintiff Witness No.2 at Exh.37?"

"C] Whether the judgment of the Lower Appellate Court can be sustained in view of the fact that the sale deed/Exh.43 of the Defendant himself goes to corroborate the encroachment on the suit site? Therefore, whether the learned First Appellate Court was right in ignoring the evidence of the original vendor of the plaintiff as well as the defendant on the point of user of the suit site by the plaintiff?"

"F] Whether the judgment and decree of the learned First Appellate Court is sustainable in view of the fact that it is in total disregard to the principles laid down by the Hon'ble Apex Court for writing the judgment of reversal? In view of the fact that the counter claim of the defendant was dismissed by the both the courts below, whether the First Appellate Court was right in leaving the dispute in limbo? Whether the court below was right in dismissing the cross-appeal of the present appellant/plaintiff without

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proper reasoning or findings?"

5. With the assistance of the learned counsel for the

appellants, I have gone through the sale-deed dated 29-1-1969 at

Exhibit 43 in favour of the defendant, the sale-deed at Exhibit 38

dated 18-2-1980 in favour of the plaintiff, and the map prepared

by the Surveyor PW 4 Gajanan Admane at Exhibit 1-A. Perusal

of the map at Exhibit 1-A and the sale-deed at Exhibit 38 in

favour of the plaintiff shows that the property purchased by the

plaintiff vide Exhibit 38 shows the length of 77 feet (23.47

meters) and width of 25 feet (7.62 meters) and it is described by

the boundaries in the sale-deed. The sale-deed at Exhibit 38 also

indicates that the plaintiff is conferred with the ownership over

the portion of lane to the eastern side having length of 52 feet

and width of 11 feet. The map prepared by the Surveyor PW 4

Gajanan Admane depicts this portion marked by red pencil by the

letters A H S R T I. The evidence of vendor PW 2 Prabha

Ladbhaiyya indicates that this portion was not sold to the

defendant and it was used by her in fetching water from well.

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The northern portion of the property owned by the defendant

excluding the disputed portion was also sold to the plaintiff by

the registered sale-deed dated 27-2-1970, marked by the letters

A B C D E F G H.

6. The lower Appellate Court holds that there is no opening

of gate showing on the eastern side wall shown by the

letters A I - A M in the plaint map. It also holds that there is no

explanation by the plaintiff in his evidence as to how it was

practicable to use the lane when there is no access to it from the

northern or eastern side of the wall of the Kotha. The lower

Appellate Court seems to have ignored the contents of the

sale-deed at Exhibit 38 with reference to the map prepared by

the Surveyor at Exhibit 1-A along with the oral evidence of the

vendor. In view of this, the substantial question of law at serial

No.(C) is answered, holding that the findings recorded by the

lower Appellate Court are in ignorance with the evidence of the

vendor as well as the defendant and with the contents of the

sale-deed at Exhibit 43 and the map at Exhibit 1-A on the

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question of ownership of the plaintiff over the disputed portion.

The finding of the lower Appellate Court cannot, therefore, be

sustained.

7. In view of the answer to the substantial question at

serial No.(C), the other questions are not required to be

considered, and the judgment and order passed by the lower

Appellate Court needs to be set aside to restore the decree passed

by the Trial Court.

8. In the result, the second appeal is allowed. The

judgment and order dated 2-9-2003 passed by the lower

Appellate Court in Regular Civil Appeal No.114 of 1999, is

hereby quashed and set aside, and the decree passed by the Trial

Court in Regular Civil Suit No.141 of 1994 on 29-4-1999 is

restored. No order as to costs.

JUDGE.

Lanjewar.