Bombay High Court
Surana Bothra Associates, ... vs Rakesh Motilal Sharma, ... on 25 January, 2021
Bench: S. K. Shinde
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
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 : 05th JANUARY, 2021.
PRONOUNCED ON : 25th JANUARY, 2021.
JUDGMENT :-
Heard.
1. Aggrieved by order dated 4th December, 2020 passed below
Exhibit - 5 in Special Civil Suit No. 954 / 2020 by the Court of Joint
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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 their agents or any
persons claiming through the defendants.
3. Pending suit, plaintiffs filed an application for temporary
injunction. Trial Court vide order dated 4 th 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.
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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. 1. It was owned by Ms. Gool
Nariman Damri and others. Plaintiffs' grand-father, Girdharilal
Sharma was interested in developing of this property. Accordingly on
1st September, 1988, development agreement was 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
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
property handed in terms of development agreement dated 1 st
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 described in paragraph no. 1.3 (survey no.
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 Nariman Damri
executed a lease deed on 27th 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).
7. That on 22nd August, 1997, lessees under the deed of lease dated
27th December, 1996 executed a development agreement in favour of
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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 agreement dated 22nd August, 1997, plaintiffs also took
possession of property described in paragraph no. 1.3.
8. It is plaintiffs' case that on 24 th April, 2006, Ms. Gool Nariman
Damri and lessees under the lease deed dated 27th 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 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.
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10. On 26th December, 2012, Ms. Gool Nariman Damri and Others
and the lessees under the lease deed dated 27th 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 would assert and
claim the possession since 22nd 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
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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."
13. The suit has been to be instituted in September, 2020. The cause
of action pleaded is that, on 10th 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 on 17th August, 2020. Plaintiffs would further claim that on
29th 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 allowed by the
learned Judge vide order dated 4th December, 2020. Aggrieved by this
order, defendants have preferred this appeal.
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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 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 22 nd August,
1997 and subsequent sale deed dated 26th December, 2012 was in
respect of land described in paragraph 1.1. It is their case, that when
Development Agreement was executed on 22 nd August, 1997,
possession of land described in paragraph 3.3 was taken from erstwhile
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
lessees. However, boundaries of land described in the Development
Agreement dated 22nd 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 3.3. 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-measuring 799.60 sq. mtrs., a part of Survey No. 579/1B. Even
assuming Girdharilal Sharma, while constructing the boundary wall
encompassed property described in paragraph 3.3 and further
assuming, he was in possession thereof, he ought to have describe
'entire land' (i.e. property 1.1 + 1.3) in lease executed on 22 nd August,
1997 in favour of plaintiffs. Thus, it is to be noted save and accept 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.
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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
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 3.3, however beyond the pleadings, there is no convincing
evidence to prima facie accept their assertion of 'settled possession' over
the property described in paragraph 3.3, 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
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
injunction, Court need not to go into ingredients of adverse possession,
other then 'actual settled possession' claimed by the plaintiffs.
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 3.3 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 dated 3 rd September,
2020 filed by the defendants. Mr. Anturkar attempted to draw the
inferences from the contents of the FIR, to submit that the defendants
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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 police complaint
dated 3rd 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 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
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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 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
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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 ;
(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
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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;
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 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,
Civil A.O. St. 97890-2020 w IA St.97891-2020.doc
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 to be
pressed into service by the plaintiffs, asserting peaceful possession over
the property described in paragraph 3.3 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."
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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 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 convincing evidence and therefore in
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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 3.3 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;
ORDER
(i) Order dated 24th 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.
28. After pronouncing this judgment, learned Counsel for the
respondent (original plaintiff) requested this Court to continue interim
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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).
N A J E E B.
Digitally
signed by
Neeta Neeta S.
Sawant
S. Date:
Sawant 2021.01.25
15:30:13
+0530
