Bombay High Court
Jagannath Sobharam Bhatt vs Shri Keshav Ramji Shine on 14 November, 2017
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
LETTERS PATENT APPEAL NO.176 OF 1995
Jagannath Sobharam Bhatt ]
(Since Deceased) Through LRs. ] ... Appellant
Versus
Shri Keshav Ramji Shinde. ] ... Respondent
Mr. Prasad B. Kulkarni for Appellant.
Mr. Rajesh B. Parab for Respondent.
CORAM :- R. M. SAVANT &
SARANG V. KOTWAL, JJ.
DATE :- 14 NOVEMBER, 2017
JUDGMENT (PER : SARANG V. KOTWAL, J.) :-
1. The above Letters Patent Appeal is filed by the Appellant
(original Defendant) challenging the Judgment and Order dated
13/11/1995 passed by the learned Single Judge of this Court
dismissing the First Appeal No.717 of 1977 and thereby confirming
the Judgment and Decree passed by the learned Judge, City Civil
Court, Bombay in Suit No.1428 of 1967. The present Respondent is
the original Plaintiff.
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2. The case of the Plaintiff was that, since 1952 he was in
continuous, uninterrupted and peaceful possession and occupation of
the land bearing Survey No.27, Hissa No.12 admeasuring about 14
gunthas situated at Village Kirol, Ghatkopar, in Greater Bombay. The
present Appellant - Defendant claimed to be the owner of the plot of
land bearing Survey No.27, Hissa No.10 which was adjoining to the
land bearing Survey No.27, Hissa No.12. It was further the case of the
Plaintiff that one Dhanjibhai Cama was shown as the owner of the
land bearing Survey No.27, Hissa No.12 in the Record of Rights. The
Plaintiff claimed to be the owner of the piece of land i.e. Survey
No.27, Hissa No.12 by virtue of the continuous, uninterrupted and
adverse possession thereof. According to him, in or about January
1960, he demolished the hut in which he was residing with a view to
build a chawl thereon. At that time, the Defendant - Appellant
approached him and claimed that the plot of land in possession of the
Plaintiff was a part of Survey No.27, Hissa No.10 of which the
Defendant was the owner. The Defendant threatened to cause
trouble. Based on such representation, which the Plaintiff believed to
be true, that the Defendant was the owner of the part of the land on
which the Plaintiff wanted to construct a chawl, and to avoid further
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trouble, the Plaintiff was persuaded to enter into a Lease Deed dated
23/01/1960 for lease of the plot of land admeasuring about 3 gunthas
with the Defendant. It is further the case of the Plaintiff that the
Defendant, in spite of repeated demands, did not provide the
necessary documents. In the month of December 1964, an enquiry
was started by the Enquiry Officer, City Survey, B.S.D. in respect of
the land in possession of the Plaintiff and the said enquiry ended on
20/12/1965. That time the Plaintiff came to know that the plot of
land in his possession was not forming part of Hissa No.10 but was
part of Hissa No.12; with which the Defendant had no concern at all.
In the said enquiry, the Plaintiff was recognized as the occupier of the
said plot from the year 1952. The said entry was not objected to by
the original owner of Survey No.27, Hissa No.12. In these
circumstances, the Plaintiff claimed that the Lease Deed dated
23/01/1960 was void and was not binding on him and the Defendant
had played fraud on him. The Plaintiff's case in the plaint further
reveals that, since November 1966, there was an attempt to dispossess
him forcibly and in January 1967 the Defendant even attempted to
put a fencing around the plot. In these circumstances, the Plaintiff
filed the Suit No.1428 of 1967 on 06/03/1967 for the declaration that
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the Defendant had no right, title or interest in the piece of land in
possession of the Plaintiff and that the Lease Deed dated 23/01/1960
be set aside and cancelled. The Plaintiff had also prayed for
permanent injunction against the Defendant from trespassing on the
land in possession of the Plaintiff.
3. The present Appellant - Defendant contested the suit and
filed his Written Statement. Besides denying the averments in the
plaint, the Defendant mainly contended that there was no Hissa No.12
in Survey No.27 in existence at all until 1963-65 and the Plaintiff,
through foul methods, brought it into existence in the record books.
The Defendant further contended that the Plaintiff was in occupation
of a portion of the Defendant's plot of land as the Defendant's tenant
and did not have any independent right. It was further contended by
the Defendant that he had terminated the tenancy and therefore the
Plaintiff had no right to remain in possession. It was also the case of
the Defendant that, since by the Lease Deed dated 23/01/1960 the
Plaintiff had accepted the defendant as being the owner of the land,
he was estopped from claiming otherwise. The Defendant claimed
that he was not aware of any enquiry having been carried out in
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respect of the said piece of land. Based on these contentions, the
Defendant prayed that the suit be dismissed.
4. Based on the pleadings, the issues were framed, including
the legality of the Lease Deed dated 23/01//1960 and the question of
estoppel operating against the Plaintiff; besides other issues reflected
in the prayers in the plaint. In the suit, the Plaintiff and the
Defendant examined themselves. The Defendant also examined one
Sitaram Anerao who was a Clerk in the office of Land record and one
Vasant Bhide who has produced the General Electoral Roll from
28/12/1967 to 19/12/1972. Besides this oral evidence, documentary
evidence was also tendered.
5. After considering the evidence on record and hearing the
parties, the learned trial Judge decreed the suit in favour of the
Plaintiff by his Judgment and Decree dated 25/06/1976. It was held
and decreed that the Defendant had no right, title and interest or
claim in the said plot of land being Survey No.27, Hissa No.12 and the
Lease Deed dated 23/01/1960 was set aside and cancelled. The
Defendant was permanently restrained from trespassing upon the said
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piece of land and from disturbing or interfering with the peaceful
possession of the Plaintiff. Whilst arriving at the said conclusion, the
learned Judge mainly relied on the enquiry proceedings whereby it
was clearly shown that, there was Hissa No.10 as well as Hissa No.12
in existence in respect of Survey No.27. The said enquiry report was
challenged unsuccessfully by the Defendant before the various
authorities firstly before the Sub-Divisional Officer and then before the
Commissioner for Bombay Division. The learned Judge of the Trial
Court held that the order of the Commissioner for Bombay Division
dated 22/04/1968 holding that the enquiry was proper, had attained
finality. The learned Judge of the Trial Court has further held that
earlier in Hissa No.12 there was mention of 'Phalni No.1' which was
never owned, purchased or was in possession of the Defendant. Based
on these findings, the learned Judge decreed the suit as mentioned
earlier.
6. The Appellant herein challenged the Judgment and Decree
passed by the Trial Court before this Court vide First Appeal No.717 of
1977 before a learned Single Judge. The learned Single Judge of this
Court, vide Order dated 13/11/1995, was pleased to dismiss the said
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First Appeal. Whilst dismissing the said First Appeal, the learned
Judge accepted the reasons given by the Trial Court. The finding that
there was a separate existing Hissa No.12 on Survey No.27 in the
record, was accepted and it was also held that the Defendant had no
right whatsoever in respect of that particular plot of land. It was
observed that the contention regarding non-existence of Hissa No.12
was baseless. The specific defence taken by the Defendant that the
Lease Deed was pertaining to 3 gunthas of the land out of Hissa
No.10, was held to be false. The Appellant i.e. the original Defendant
has challenged the Judgment and Order dated 13/11/1995 passed by
the learned Single Judge of this Court by way of the present Appeal.
7. We have heard the learned Counsel for the Appellant
Mr.Prasad B. Kulkarni and learned Counsel for the Respondent
Mr.Rajesh B. Parab.
8. The main contention of Mr. Kulkarni is that the learned
Single Judge as well as the learned trial Judge erred in relying on the
entries in the revenue record for determining the contentions of the
parties. He submitted that the entries in the revenue record can never
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determine right, title and interest of the parties. He submitted that
the Plaintiff has failed to prove that he had any right of possession in
respect of the said piece of land which was owned by the Defendant.
9. Per Contra, Mr. Parab supported the impugned Order.
10. In the present case, the entries in the revenue record are
not relied upon by the Trial Court and the first Appellate Court to
determine the title of the parties. However, it was necessary to refer
to those entries to find out the existence of the piece of land bearing
Hissa No.12 in Survey No.27 which was necessary in view of the fact
that the Defendant had taken a specific defence that no such piece of
land bearing Hissa No.12 in Survey No.27 ever existed and it was
brought into existence only after 1963 during the enquiry
proceedings. The case of the Defendant was that the Plaintiff was in
possession of the piece of land which was part of Hissa No.10 of
Survey No.27. To test this contention, it was necessary for the Trial
Court to refer to the entries in the revenue record. Both the Courts
i.e. the Trial Court and the learned Single Judge, have rightly held
that the enquiries conducted by the revenue authorities clearly show
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that Hissa No.12 in Survey No.27 separately existed and Hissa No.10
was adjoining to it. The said enquiry report was challenged by the
Defendant firstly before the Sub-Divisional Officer and then before the
Commissioner for Bombay Division unsuccessfully and the order of the
Commissioner had become final. Therefore, it was not open for the
Defendant to claim that no such Hissa No.12 ever existed and for
determination of the said issues, there was no error committed either
by the Trial Court or by the learned Single Judge of this Court in
relying on those entries.
11. It was further held by the Trial Court that the
corresponding Sale Deed showed that the Defendant had purchased 1
acre and 4 gunthas from Survey No.27 Phalni No.2 vide Sale Deed
dated 19/102/1936 from Dada Ladoji and Ganpat Ladoji. In this Sale
Deed, Phalni No.1 was not included. By another Sale Deed, the
Defendant purchased 1 acre, 4 Gunthas from Survey No.27, Phalni
No.2. Here again, Phalni No.1 was not included. The record shows
that Phalni No.1 was owned by one Dhanjibhai Cama and Phalni No.2
was owned by one Gundal. Thus, it was clearly established that the
Defendant had nothing to do with Hissa No.12 Survey No.27 which
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was originally Phalni No.1 of Survey No.27. The learned Judge has
also held that since subsequently it was disclosed to the Plaintiff that
the land never belonged to the Defendant, the Plaintiff had every right
to question the title of that portion of the land and therefore, the
Plaintiff was not estopped from questioning the title of the Defendant
in respect of the piece of land, particularly when the finding was
recorded that the Lease Deed dated 23/01/1960 was obtained by
fraud, misrepresentation and force practiced by the Defendant. More
importantly, Section 116 of the Evidence Act will not be applicable in
this case against the present Respondent - Plaintiff, because the
purported Lease Deed dated 23/01/1960 was specifically in respect of
Hissa No.10 of Survey No.27 whereas the reliefs in the suit were
claimed in respect of Hissa No.12 in of Survey No.27.
12. Considering all these factors, we are of the view that no
case for interference with the impugned Order is made out. The
Letters Patent Appeal is accordingly dismissed.
(SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)
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