Vasant Mahadu Dambale (Since ... vs Suka Khandu Dambale (Since Decd. ...
2021 Latest Caselaw 2934 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                    SECOND APPEAL (ST) NO. 1843 OF 2021

 Vasant Mahadu Dambale
 (Since Decd.) through LRs.
 Sindhubai Vasant Dambale & Ors.              ..Appellants
      Vs.
 Suka Khandu Dambale
 (Since Decd.) through LRs.
 Ambabai Suka Dambale & Ors.                  ...Respondents

                                    ----

 Ms. Pratik Balasaheb Rahade, for the Appellants.
 None for the Respondents.

                                    ----

                                  CORAM : C.V. BHADANG, J.

DATE : 15th FEBRUARY 2021

P.C.

. The challenge in this second appeal is to the judgment and

decree dated 21/2/2019 passed by the learned District Judge at

Nashik, in Regular Civil Appeal No.171/2014. By the impugned

judgment, the First Appellate Court, while dismissing the appeal

filed by the present appellants (original plaintiffs) has confirmed the

judgment and decree dated 8/7/2014 passed by the learned Joint

Civil Judge, Senior Division at Nashik in R.C.S. No.474/2003.

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2. The aforesaid suit was filed by the appellants for declaration,

removal of encroachment, possession and injunction. The suit

property consists of land CTS No.162 of Mauje Govardhan, District

Nashik admeasuring 6900.1 Sq. Mtrs. alongwith residential houses

and apurtnent construction therein. The case made out in the plaint

is that the suit property was the ancestral property of the plaintiffs

from the time of their grandfather Late Shiva Naik. It was the

specific case made out, that the suit property was given to Shiva

Naik as a Inam land from Gopikabai Peshve. After the death of

Shiva Naik, the property came to his sole heir Mahadu Naik who is

the father of the original plaintiff Nos.1 to 4 and grandfather of

plaintiffs No.5 and 6. It was contended that the defendant Suka

Khandu Dambale had no right, title or interest in the suit property. It

was the material case that the defendant No.1 who was working in

the Talathi office at Govardhan had broken open the gate of the

house of the plaintiff No.6 on 12/10/2003. The defendants had

already mutated their names in the city survey records in respect of

the suit property. After the rejection of the interim relief to the

plaintiffs, there was an illegal construction made in the suit property.

It was in these circumstance that the suit came to be filed for the

aforesaid reliefs.

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 3.       The suit was resisted by the defendant Nos.1 and 2.                    The

defendants claimed ownership to the half portion of the suit

property, placing reliance on the order dated 19/3/1990 passed by

the Superintendent of the land records in the Appeal No.560/1987.

All other adverse allegations about the alleged illegal construction

and encroachment made in the suit property have been denied.

4. On the basis of the rival pleadings, the learned Trial Court

framed the following issues.

        Sr. No.                           Issues
            1       Do plaintiffs prove that they are the sole owner

of suit property in exclusive possession of it ? 2 Do defendants prove that they are the owner of half of the suit property ?

3 Do plaintiffs prove the alleged encroachment by defendants ?

4 Whether plaintiffs are entitled to relief sought for ?

5. The plaintiffs examined POA holder Mr. Uttam Dambale while

the defendant No.1C Ranganath Dambale examined himself. The

parties produced documents.

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6. The learned Trial Court answered all the issues in the negative

and dismissed the suit, which was challenged by the appellants

before the learned District Judge.

7. The First Appellate Court framed the following points for

determination.

        Sr. No.                           Points
            1       Whether the plaintiffs have proved their title to
                    the suit property ?
            2       Whether the plaintiffs have further proved that

the defendants have encroached in west-north portion of suit property as pleaded ?

3 Whether defendants proved that they are owners and in possession of suit property ?

4 Whether the judgment and decree passed by learned Trial Court calls for interference therein through the court of appeal as prayed for ?

5 What order ?

8. The First Appellate Court answered point Nos.2 and 4 in the

negative, while the point Nos.1 and 3 were answered partly in the

affirmative in the sense that the plaintiffs and the defendants were

held to be owners, of the respective portion of the suit property,

which was in their possession, as per the map filed by the City

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Survey Officer. Feeling aggrieved, the appellants are before this

Court.

9. It is submitted by the learned counsel for the appellants that

the declaration about ownership of the defendants could not have

been granted in a suit filed by the appellants that too in the absence

of any counter claim. It is submitted that the suit property was an

Inam land, which was granted to late Shiva Naik, who is the

predecessor of the appellants. He submitted that there are various

communications, between the appellants and the Government

showing that the appellants were the owners of the suit property. He

submitted that the Courts below ought to have decreed the suit in its

entirety.

10. Except these, there are no other contentions raised.

11. I have considered the circumstances and the submissions

made.

12. At the outset, it is necessary to note that the Appellate Court

has dismissed the appeal holding that the appellants (original

plaintiffs) and the respondents (original defendants) are the owners

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in possession of the respective portion which is in their possession.

Thus, the appellants are only aggrieved by the finding refusing to

grant the decree in respect of the entire suit property and more

particularly about the finding that the defendants are the owners of

the portion in their possession.

13. A specific query was made to the learned counsel for the

appellants as to whether the appellants have produced any title

documents of the suit property to which the answer is in the

negative. It transpired during the course of the arguments, that

even the Sanad in respect of the alleged Inam land from the

Peshwas is not produced before the Trial Court. It is submitted by

the learned counsel for the appellants that there are revenue entries

on the basis of which the appellants were paying taxes. It is now

well settled that revenue entries are for fiscal purpose and they are

not title documents. Thus, in the absence of any title documents

being produced, I do not find that the impugned judgment and

decree refusing to grant relief, suffer from any infirmity.

14. It is true that in a suit filed by the appellants, the Appellate

Court has held the defendants to be the owner in possession of the

North-West portion. However, that question would not strictly arise

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as a substantial question of law and would be academic for the

purpose of the disposal of the appeal. This is because assuming that

the defendants had not established their ownership to the said

portion, still the appellants cannot succeed in respect of the said

portion in the absence of the proof of their title.

15. The First Appellate Court after considering the oral and

documentary evidence, has come to the conclusion and to my mind

rightly so that the appellants have not produced any title documents

including the documents regarding the alleged Inam from Gopikabai

Peshwe. The First Appellate Court has noticed that in the City

Survey Records, the names of the defendants were mutated as per

the order dated 19/3/1990 passed in Appeal No.560/1987, copy of

which was produced at Exh.75 and that order was not challenged by

the appellants and has attained finality.

16. I have carefully gone through the impugned judgment and I

do not find that it suffers from any infirmity. The Courts below have

recorded findings of fact on proper appreciation of the evidence on

record and in the absence of the said findings of fact being perverse,

the appeal does not raise any substantial question of law.

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17. The appeal is without any merit and is accordingly dismissed.

A decree be drawn accordingly.

C.V. BHADANG, J.

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