Tukaram Sakharam Yeole vs Popat Ramkrishna Dhamale Died Thr ...
2021 Latest Caselaw 16990 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        SECOND APPEAL NO.491 OF 2013

                    TUKARAM SAKHARAM YEOLE
                               VERSUS
               POPAT RAMKRISHNA DHAMALE DIED
        THROUGH LEGAL REPRESENTATIVES AND OTHERS
                                 .....
 Advocate for Appellant : Mr. Ruchir Wani holding for Mr. A. S. Bajaj
Advocate for Respondent No.1-A to 1-D, 2 and 3 : Mr. A. S. Joshi and
                           H. H. Padalkar
                                 .....
                        CORAM : SMT.VIBHA KANKANWADI, J.

                                    Date of Reserving The Order                    :
                                    18-11-2021

                                    Date of Pronouncing The Order                  :
                                    07-12-2021
ORDER :

1. Present appeal has been filed by the original plaintiff challenging

the concurrent Judgment and decree passed by the Courts below. He

had filed Regular Civil Suit No.72 of 1996 before Joint Civil Judge,

Junior Division, Sangamner, District Ahmednagar, for permanent as

well as mandatory injunction. The said suit came to be dismissed on

21-06-1999. He challenged the said Judgment and decree by filing

Regular Civil Appeal No.134 of 1999 which is later on renumbered as

Regular Civil Appeal No.845 of 2000. The said appeal came to be

dismissed by learned District Judge-2, Sangamner, District

Ahmednagar, on 05-12-2011. Hence, this second appeal.

2 SA 491-2013

2. Heard learned Advocate Mr. Ruchir Wani holding for Advocate

Mr. A. S. Bajaj, learned Advocate Mr. A. S. Joshi and Learned

Advocate Mr. H. H Padalkar for respondents No.1-A to 1-D, 2 and 3.

3. It has been vehemently submitted on behalf of the appellant

that both the Courts below have not considered the evidence

properly and have given perverse finding. In fact, the plaintiff has

proved his title by filing certified copy of his sale deed which he had

obtained from Sub-Registrar's office. He had also filed the mutation

entry on the basis of which his name came to be entered to the

revenue records. The 7/12 extract was also filed, yet both the

Courts have held that the plaintiff has failed to prove the title of his

vendor and, therefore, it cannot be said that the plaintiff has proved

his title. Thereafter, the plaintiff has also produced evidence in the

form of witness who was present at the time of purchase

transaction. He had got the land measured through Taluka

Inspector of Land Records and thereupon it was shown that there is

a construction made in the suit land, which is stated to be made by

the defendants. When the said construction has been made on the

open plot belonging to the plaintiff, mandatory injunction ought to

have been granted. Both the Courts ought to have held that the

3 SA 491-2013

plaintiff has proved that the encroachment has been committed by

the defendants. When evidence has not been properly appreciated

and it has resulted into perversity, substantial questions of law are

arising in this case.

4. Per contra, learned Advocate for respondents supported the

reasons given by both the Courts below and submitted that no

substantial questions of law are arising in this case.

5. It is to be noted that initially the suit appears to have been

filed only for permanent injunction, however, later on, the prayer for

mandatory injunction in respect of removal of structure in the form

of a raised platform (Oata) admeasuring 4 x 10 feet, was added.

That portion is stated to be on the Eastern corner. The suit was not

filed for removal of encroachment in the stricter sense by valuing

the property as well as a suit. Plaintiff had come with a case that he

is the owner of the property as he had purchased the said open

space from one Khandu Shankar Dhamale and Yamraj Shankar

Dhamale on 09-10-1984. Defendants challenged the title of the

plaintiff and contended that it is the ancestral property of the

defendants. In view of the same, the issue in respect of title was

framed. It was, therefore, expected by both the Courts below that

4 SA 491-2013

the plaintiff would prove his title by cogent evidence. No doubt,

plaintiff produced the certified copy of his sale deed and gave

explanation that his sale deed was sent to Photozinco but it is not

received back, and he had obtained the certified copy from the

concerned office. Defendant had challenged the alleged ownership

of Khandu Dhamale and Yamraj Dhamale because a specific

statement to that effect in the written statement was made that they

had no concern with the suit property, but they were occupying a

certain portion on the Eastern side. If this is so, it was then

expected from the plaintiff to produce on record documentary

evidence to prove the title of his vendors. Neither such document

has been produced nor he examined his vendors. Examination of

the witness, who was allegedly present at the time of sale deed, will

not prove the title of the vendors. Both the Courts below were

justified in concluding that plaintiff has failed to prove title to the

suit property.

6. When the plaintiff had failed to prove his title, the suit should

automatically stand dismissed as he will not be having any right to

claim any relief in respect of that property. However, if we go

further and consider the evidence on the point of alleged

5 SA 491-2013

encroachment, it is to be noted that though initially the suit land was

measured by PW.3 Sayyed, yet during the pendency of the suit, the

land was got measured through District Inspector of Land Records.

PW.3 Sayyed was only the Cadastral Surveyor but the District

Inspector of Land Records is the appellate authority. The concerned

person i.e. D.W.2 Ashok Manjare who measured the land as per the

orders of the Trial Court, has specifically deposed that he could not

find that owner of land Survey No.264 has made encroachment on

land Survey No.261. He could not find any raised platform or house

in Survey No.261. In his cross-examination, nothing contrary has

been transpired. Therefore, when the appellate authority of the

Cadastral Surveyor had come to the conclusion that there is

encroachment, then consequent finding would be that the plaintiff

had failed to prove the claim. The suit was rightly dismissed, so also

the appeal was rightly dismissed. There is no perversity in the

conclusions drawn by the Courts below. No substantial question of

law as contemplated under Section 100 of the Code of Civil

Procedure is arising in this case requiring admission of the second

appeal. Hence, the appeal stands dismissed.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-