Bombay High Court
Surana Bothra Associates, ... vs Rakesh Motilal Sharma, ... on 15 February, 2021
Bench: S. K. Shinde
Rane 1/25 15.2.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST.) NO.97890 OF 2020
Suruna Bothra Associates .....Appellant
V/s.
Mr. Rakesh Motilal Sharma
and Ors. ....Respondents
* * * *
Mr. Girish Godbole, Senior Advocate a/w. Ms. Shivani
Samel, Advocate for the appellant.
Mr. Prathamesh Bhargude, Advocate for the respondent.
CORAM : SANDEEP K. SHINDE, J.
Monday, 15
th
February, 2021.
P.C. :
1. Papers are produced for speaking to minutes
th
of the order dated 25 January, 2021. The following
corrections to be carried out :
(i) In para-4 of the judgment, in the third line
the word "Hissa no.1" is to be replaced as
"Hissa No.1B".
(ii) In para-5, in the seventh line after the
word "property", the number namely "Survey
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No.579 Hissa No.2" be inserted. A few words
further, the words "survey no." be replaced
with "admeasuring" to read as "admeasuring
799.60 sq.mtrs.)".
(iii) The word "in paragraph 3.3" recorded in
paras-17, 18, 19(i), 24 & 26, is to be replaced
with the words "in paragraph 1.3".
(iv) In para-17 of the judgment, in the 17 th
line, the number "579/1B" is to replaced by
the number "579/2".
(v) In para-17 of the order, in the 22 nd line,
the word "save and accept" is to be replaced
as "save and except".
(vi) In para-23 in the fourth line, after the
word "does" a word "not" to be inserted.
2. Application is disposed off.
(Sandeep K. Shinde, J.)
Rane 3/25 15.2.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
(The order is corrected pursuant to speaking to minutes order dated 15 th February, 2021)
Appeal from Order (A.O.) Stamp No. 97890 / 2020
with
Interim Application Stamp No. 97891 / 2020
Suruna Bothra Associates & Others .. Appellants
Vs.
Rakesh Motilal Sharma & Others .. Respondents
*****
Mr. G. S. Godbole i/by Mr. Parag Tilak, Advocate
for the Appellants.
Mr. A.V. Anturkar, Senior Advocate i/by Mr.
Prathamesh Bargude, Advocate for Respondents.
*****
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : 05
th
JANUARY, 2021.
PRONOUNCED ON : 25
th
JANUARY, 2021.
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JUDGMENT :-
Heard.
th
1. Aggrieved by order dated 4 December, 2020
passed below Exhibit - 5 in Special Civil Suit No.
954 / 2020 by the Court of Joint Civil Judge, Senior
Division, Pune, Defendants have preferred this
appeal under order 43 Rule 1 of the Code of Civil
Procedure, 1978.
2. Plaintiffs are seeking, declaration that they have
perfected their title over the suit property described
in paragraph no. 1.3 i.e. land bearing survey no. 579
/ 2, ad-measuring 799.60 sq. mtrs., more particularly
described in paragraph no. 1.3 of the plaint, by way
of adverse possession. Another relief sought, is to
perpetually injuct defendants from entering over the
property described in paragraph nos. 1.2 and 1.3 of
the plaint or any part thereof and or interfering
with plaintiffs' possession over it by themselves or
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their agents or any persons claiming through the
defendants.
3. Pending suit, plaintiffs filed an application for
temporary injunction. Trial Court vide order dated
th
4 December, 2020 restrained the defendants from
entering over the suit property described in
paragraph nos. 1.2 and 1.3 of the plaint or
interfering with plaintiffs' possession over it, till
disposal of the suit.
4. Plaintiffs' assertions :
Plaintiffs have described suit property in
paragraph nos. 1.1, 1.2 and 1.3 of the plaint. The
property described in paragraph no.1.1, is a land
bearing survey no. 579, Hissa no. 1B. It was
owned by Ms. Gool Nariman Damri and others.
Plaintiffs' grand-father, Girdharilal Sharma was
interested in developing of this property. Accordingly
st
on 1 September, 1988, development agreement was
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executed by Ms. Gool Nariman Damri and others in
favour of M/s Sharma Builders, a partnership firm,
in which Girdharilal Sharma was a partner. The
possession of this property (described in paragraph
no. 1.1) was handed over to partners of M/s Sharma
Builders. It is plaintiffs' case that at the same
time, partners of M/s Sharma Builders also took
possession of the adjoining property ad-measuring
799.60 sq. mtrs., a part of survey no. 579, Hissa no.
2, described in paragraph no. 1.3 of the plaint.
5. Plaintiffs would assert that in the year 1990,
partners of M/s Sharma Builders, Girdharilal
Sharma, out of his funds constructed a massive
compound wall and encompassed, covered, not only
the property handed in terms of development
st
agreement dated 1 September, 1988 (i.e. described
in para 1.1), but also land ad-measuring 799.60 sq.
mtrs. from survey no. 579, hissa 2. Plaintiffs,
would therefore, claim property Survey No.579 Hissa
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No.2, described in paragraph no. 1.3 (admeasuring
799.60 sq. mtrs.) was in the exclusive possession of
M/s Sharma Builders, openly and publicly, adverse to
its original owners without any obstruction, since
1988.
6. Plaintiffs would further assert, Ms. Gool
th
Nariman Damri executed a lease deed on 27
December, 1996 in favour of Motilal Girdharilal
Sharma and others with the consent of partners of
M/s Sharma Builders and granted perpetual lease of
the entire property described in paragraph no. 1.1
i.e. land survey no. 579, hissa 1-B, Plaintiffs would
claim Motilal Sharma, not only took possession of
land described in lease deed but also land described
in paragraph no. 1.3 (799.60 sq. mtrs, survey no.
579, Hissa 2).
nd
7. That on 22 August, 1997, lessees under the
th
deed of lease dated 27 December, 1996 executed a
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development agreement in favour of plaintiffs in
respect of land described in paragraph no. 1.1 and
handed over possession to the property to them. In
paragraph no. 9 of the plaint, plaintiffs would assert
that at the time of execution of development
nd
agreement dated 22 August, 1997, plaintiffs also
took possession of property described in paragraph
no. 1.3.
th
8. It is plaintiffs' case that on 24 April, 2006,
Ms. Gool Nariman Damri and lessees under the
th
lease deed dated 27 December, 1996 executed an
Irrevocable Power of Attorney in favour of the
plaintiffs in respect of suit property described in
paragraph 1.1.
9. In January, 2009, portion of land ad-measuring
2444.50 sq. mtrs. of the property described in
paragraph 1.1 was transferred to Pune Municipal
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Corporation for the proposed D.P. Road as then
shown in the Development Plan under the Provisions
of the Maharashtra Regional and Town Planning
Act, 1966 (MRTP, Act). Resultantly, property
described in paragraph 1.1 i.e. Survey No. 579,
Hissa 1-B divided into two parts i.e. Eastern and
Western Side, which is described in paragraph 1.2 of
the plaint.
th
10. On 26 December, 2012, Ms. Gool Nariman
Damri and Others and the lessees under the lease
th
deed dated 27 December, 1996 executed a deed of
conveyance in favour of the plaintiffs in respect of
suit property described in paragraph 1.2.
11. Thus, relying on the all aforesaid transnational
deeds, plaintiffs are claiming their exclusive
possession in property described in paragraph 1.2. So
far as their possession in property, described in
paragraph 1.3 of the plaint is concerned; plaintiffs
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nd
would assert and claim the possession since 22
August, 1997, a date on which, Development
Agreement, was executed in their favour.
12. In paragraph no.14, plaintiffs have pleaded thus;
" The Plaintiffs took possession of suit property
described in paragraph 1.3 in the year 1997 and
started enjoying exclusive possession of the said
property as the owner thereof openly and publicly,
adverse to original owners of Survey No. 579, Hissa
No. 2, continuously ever since then, for a period
more than 12 years, without any obstruction from
anyone including the original owners of Survey No.
579, Hissa No. 2. Thus the Plaintiffs have perfected
his title over the suit property described in
paragraph 1.3 herein, as an owner thereof by way of
adverse possession."
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13. The suit has been to be instituted in
September, 2020. The cause of action pleaded is
th
that, on 10 August, 2020, defendants tress-passed
into the property described in paragraph 1.2 and 1.3
and attempted to erects of structure over it.
Plaintiffs thereupon lodge the complaint to the police
th
on 17 August, 2020. Plaintiffs would further claim
th
that on 29 August, 2020, persons claiming to be
employees of defendants nos. 1 to 3 erected iron
angles over the property described in paragraph no.
1.2 and 1.3. Their attempt was resisted, which
culminated into F.I.R. filed by the son of the
plaintiff.
14. Thus, apprehending the obstruction and
dispossession over the property described in
paragraph 1.2 and 1.3, pending suit, plaintiff had
filed an application for temporary injunction. It was
th
allowed by the learned Judge vide order dated 4
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December, 2020. Aggrieved by this order, defendants
have preferred this appeal.
15. Heard. Mr. Godbole, learned Senior Counsel for
the Appellant and Mr. Anturkar, learned Senior
Counsel for the Respondents.
16. Perused the impugned order, plaint, reply and
documents filed by the parties. It is appears the
plaintiffs while arguing their application for
temporary injunction contended before the trial Court
that for the purpose of disposal of application (Ex-5),
Court need not to go into ingredients of adverse
possession, other then "actual settled possession",
claimed by the plaintiffs over the suit property
described in paragraph 1.3.
17. It may be stated that though plaintiffs are
claiming possession over the suit property described
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in paragraph 1.3 since August, 1997 i.e. a date on
which Development Agreement was executed in their
favour, but to say the Development Agreement dated
nd
22 August, 1997 and subsequent sale deed dated
th
26 December, 2012 was in respect of land described
in paragraph 1.1. It is their case, that when
nd
Development Agreement was executed on 22
August, 1997, possession of land described in
paragraph 3.3 was taken from erstwhile lessees.
However, boundaries of land described in the
nd
Development Agreement dated 22 August, 1997 do
not even suggest or in the slighest degree, indicate
that the plaintiffs were, also inducted in possession
of property described in paragraph 1.3. Herein,
plaintiffs would urge that his grand-father
Girdharilal Sharma, after deriving development rights
of the larger property described in paragraph 1.1
constructed a massive compound wall in a year
1990, not only around the property described in
paragraph 1.1, but also around the property ad-
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measuring 799.60 sq. mtrs., a part of Survey No.
579/2. Even assuming Girdharilal Sharma, while
constructing the boundary wall encompassed
property described in paragraph 1.3 and further
assuming, he was in possession thereof, he ought to
have describe 'entire land' (i.e. property 1.1 + 1.3)
nd
in lease executed on 22 August, 1997 in favour of
plaintiffs. Thus, it is to be noted save and except a
bare and plain 'statement' of the plaintiffs, no other
material has been brought on record to prima facie,
establish their possession over the property described
in paragraph 1.3.
18. The fact cannot be overlooked that in 1997,
plaintiffs were not owners of the property described
in paragraph 1.1 of the plaint. Infact, they were
empowered to develop the property described in
paragraph 1.1 of the plaint. Their postulation of
possession over the property described in paragraph
1.3 adversely since 1997, lends no credence, in
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absence of then owners, being impleaded as party
defendants and such other evidence. Be that as it
may, though since plaintiffs are claiming their
"actual settled possession" over the property
described in paragraph 1.3, however beyond the
pleadings, there is no convincing evidence to prima
facie accept their assertion of 'settled possession' over
the property described in paragraph 1.3, on the date
of which the suit was instituted. Settled
possession means such possession over the property
which has existed for a sufficiently long period of
time and has been acquiesced to by the true owner.
19. Mr. Anturkar, learned Senior Counsel for the
Respondents, would repeat, plaintiffs' submission
before the trial Court that for the purpose of
disposal of application below exhibit - 5 i.e.
temporary injunction, Court need not to go into
ingredients of adverse possession, other then 'actual
settled possession' claimed by the plaintiffs.
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Plaintiffs thus relied on the following circumstance
and evidence to justify the order passed by the trial
Court in their favour.
(i) Government Demarcation Certificate Map No.
1807/2016 produced at Exhibit - 17 at Serial No. 2.
This certificate relates to measurement carried out
by adjoining land owners. It shows disputed land
described in paragraph 1.3 is/was under the control (
वहीवाट ) of the plaintiffs. This certificate has been
relied on by the learned trial Court to hold the
'actual possession' of the plaintiffs over the disputed
land, for the reason that this, certificate was not
challenged by the defendants, though it was drawn
and issued in the year 2016. However, there is no
evidence, to suggest, this measurement was carried
out after notice to the defendants.
(ii) The next circumstance, is a police complaint
rd
dated 3 September, 2020 filed by the defendants.
Mr. Anturkar attempted to draw the inferences from
the contents of the FIR, to submit that the
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defendants themselves have admitted the possession
of the plaintiffs over the disputed land. The learned
trial Court while dealing with this piece of evidence
in paragraph no. 15 has held thus;
" So the very assertion of defendants in the
rd
police complaint dated 3 September, 2020 that itself
again compelling to infer that at somewhat extent
the plaintiff is in control of the suit property in
para 1.3 of the plaint." It is inferential
circumstance.
(iii) The third circumstance relied on by the learned
trial Court is 'google image' of the stone wall and
demarcation map of Survey No. 579/2. It appears,
one Arhan Co-operative Housing Society had applied
for demarcation for Survey No. 579/2 in the year
2012. The learned trial Court found the said
demarcation map shows one wall existed while
measurement was carried out in February, 2012.
Relying on this Survey Map and Google images, the
learned trial Court held that since defendants have
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not denied the existence of the wall shown in the
Survey Map carried out in 2012, the defendants
have directly and impliedly admitted the plaintiffs'
control over the disputed land inasmuch as of these
documents were produced by the defendants
themselves. It is also inferential circumstance.
20. The trial Court thus, relying upon the aforesaid
documents produced by the defendants has held
thus; "So considering the claim of plaintiff and all
aforesaid factual aspect as discussed herein above,
prima faciely, it reveals that the plaintiff is in
control of property described in paragraph 1.2, 1.3 of
the plaint and having very much prima facie, case
to claim equity against the defendants. Resultantly,
the trial Court has granted injunction." Thus,
finding recorded is in about 'control' and not
possession.
21. It may be stated that the plaintiffs have not
brought positive evidence on record to establish
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their, "actual possession" over the property described
in paragraph 1.3, but relied on survey maps and
google images to claim their possession over the
disputed land since 1997. A person, who asserts a
possession over the particular property, is required
to show that he is under settled or established
possession of the said property. The Hon'ble Apex
Court in the case of Unaram Vs. Motiram (2019) 11
SC 309 has held mere stray or intermittent acts of
tress pass do not give such right against the true
owner. Settled possession means such possession
over the property which has existed for sufficiently
long period of time and has been acquiesced too by
the true owner. The casual act of possession does
not have the effect of interrupting possession of the
rightful owner. The settled act of trespass or a
possession which has not matured into settled
possession can be obstructed or removed by the true
owner, even by using necessary force. Thus, settled
possession must be ;
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(i) Effective,
(ii) Undisturbed
(iii) To the knowledge of the owner or without any
concealment by the trespasser.
22. The Hon'ble Apex Court has also observed that
merely on doubtful material and cursory evidence, it
cannot be held that plaintiff was ever in possession
of the property and that too in settled possession.
The Court has laid down the following tests,
which may adopted for working rule for determining
the attributes of settled possession;
(i) That trespasser must be in 'actual physical'
possession of the property over the sufficiently long
period;
(ii) That possession must be to the knowledge
(either expressed or employees) of the owner or
without any attempt concealment by the trespasser;
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23. As against the law laid down by the Apex
Court in the aforesaid judgment, I have every reason
to note that the material relied upon by the
plaintiffs was a superficial and the nature of
evidence was cursory, and does not prima facie
establish plaintiffs' possession over land described in
paragraph 1.3 of the plaint.
24. Prima facie, pleadings submit and advance the
fact that the plaintiffs, pre-deceased (Girdharilal
Sharma), under the guise of 'development rights'
described in paragraph 1.1 of the plaint of property,
constructed stone wall in 1990, not only around the
land 1.1, but also land described in paragraph 1.3,
of the plaint, without permission of the Competent
Authority. Thus, noticeably this act was, nothing
less then encroachment by Girdharilal Sharma.
Now, plaintiffs are claiming possession of the
disputed land through Girdharilal Sharma and
seeking declaration of title. Thus, evidence sought
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to be pressed into service by the plaintiffs, asserting
peaceful possession over the property described in
paragraph 1.3 of the plaint is traceable to
'encroachment' by Girdharilal Sharma, and therefore
plaintiffs cannot seek injunction against the
defendants/ true owner.
25. In the given set of facts, Mr. Godbole, learned
Senior Counsel for the appellant has rightly relied
on the judgment of the Hon'ble Apex Court in the
case of Shivkumar Chadha Vs. Municipal Corporation
of Delhi (1993) 3 SCC 161, where it was observed;
"that injunction is discretionary and that, judicial
proceedings cannot be used to protect or to
perpetuate a wrong committed by a person who
approaches the Court."
26. Besides, it may be stated, the boundaries of
land described in paragraph 1.1, 1.2 and 1.3 are not
falling in line, with the documents relied on by the
plaintiffs as referred above. Infact, the learned
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trial Court while accepting the plaintiffs' possessory,
claim over the disputed property relied on map M.R.
No. 1807/2016. It shows the disputed land has
merged with survey no. 579/1-B. Trial Court held,
since the plaintiffs have not challenged the map,
inferences is to be drawn that defendants were
aware that the disputed land was in possession of
the plaintiff since 2016. Second inference has been
drawn from another survey map, which according to
the plaintiffs show a stone wall. The learned trial
Court has held, plaintiffs' possession over the
disputed land, simply because the defendants have
not denied the existence of wall as shown in the
map. Thus, the conclusion reached by the trial
Court was based on 'inferential process' as noted
above and further the inferences were drawn because
survey maps were not challenged by the defendants.
It is settled law that a person who claims his
settled possession over the disputed property, is
required to prima facie establish his possession by
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convincing evidence and therefore in absence of any
such evidence, inferential process adopted by the
learned trial Court, while prima facie holding
plaintiffs control over the property described in
paragraph 1.3 was incorrect.
27. In the consideration of the aforesaid facts and
for the reasons stated above, the appeal is partly
allowed and hence the following order;
O R D E R
th
(i) Order dated 24 November, 2020 passed below
Exhibit - 5 in Special Civil Suit No. 954/2020,
restraining the Defendants from entering over the
suit property described in paragraph no. 1.3 of the
plaint and interfering with the plaintiffs possession
over it, is quashed and set aside.
(ii) Appeal is partly allowed and disposed of in the
aforesaid terms. Interim Application also stands
disposed off.
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28. After pronouncing this judgment, learned
Counsel for the respondent (original plaintiff)
requested this Court to continue interim stay since
applicant intends to challenge the order of this
Court before the Hon'ble Apex Court. However, in
view of the facts of the case and for the reasons
stated, request to stay the operation of the judgment
and order is declined and accordingly rejected.
(SANDEEP K. SHINDE, J).
Digitally
signed by
Neeta Neeta S.
Sawant
N A J E E B.
S. Date:
Sawant 2021.02.16
14:56:30
+0530
