Bombay High Court
Shantabai Pandurang Mhaske And ... vs Sou. Varsha Vijaykumar ... on 8 March, 2021
Bench: C.V. Bhadang
902-sa-50-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.50 OF 2021
Shantabai Pandurang Mhaske & Ors. ..Appellants
Vs.
Sou. Varsha Vijaykuar Kshirsagar
Through Power of Attorney Holder
Shri.Yuvraj Narasingrao Kshirsagar & Ors. ..Respondents
----
Mr.Nikhil Wadikar i/b Nandu Pawar for the Appellants.
Mr.V.S. Talkute for the Respondents.
----
Nilam Digitally signed
by Nilam Kamble
CORAM : C.V. BHADANG, J.
Kamble Date: 2021.03.10
16:09:57 +0530
RESERVED ON : 10th FEBRUARY 2021
PRONOUNCED ON : 08th MARCH 2021
P.C.
1. This is second round of litigation between the parties
before this Court.
2. The appellants are the original defendants, challenging
the judgment and decree dated 09 th December 2019 passed by the
learned District Judge at Satara, in Regular Civil Appeal No.137 of
2019 thereby confirming the judgment and decree dated 01 st April
2019 passed by the learned Civil Judge Senior Division, Satara in
N.S. Kamble page 1 of 17
902-sa-50-2021
Special Civil Suit No.158 of 2017 filed by the respondents
(Plaintiffs).
3. The brief facts necessary for the disposal of the appeal
may be stated thus :-
That land admeasuring 48 feet x 47 feet i.e. 2256 sq.fts
from out of City Survey No.231 situated at Godoli, Taluka-Satara,
District-Satara is the subject matter of dispute. CTS No.231 was
originally owned by Eknath Jagtap. Late Vithal Ramchandra
Mhaske who is predecessor in title of the appellant purchased a land
admeasuring 48 x 43 feet from out of CTS No.231 under a
registered Sale Deed dated 30th January 1948 from Eknath Jagtap.
The respondents claim to have purchased the remaining land from
out of the said Survey Number under Sale deed dated 29 th December
2019 from the heirs of Eknath Jagtap.
4. For the sake of convenience parties are referred to in
their capacity as plaintiffs and defendants. Earlier the defendants
filed RCS No.427 of 2011 claiming declaration of ownership in
respect of an area i.e. 90 feet x 48 feet (which is in excess of the
area purchased under the Sale Deed of the year 1948). The
declaration was claimed on the basis of the title based on the sale
N.S. Kamble page 2 of 17
902-sa-50-2021
deed and for the balance portion on the basis of adverse possession.
The defendants sought perpetual injunction against the plaintiffs
from disturbing the possession of the defendants over the said area.
It appears that the plaintiffs filed RCS No.430 of 2011 seeking an
injunction against the defendants from disturbing their possession
and from restraining the defendants from interfering with the
construction undertaken by the plaintiffs as per the sanctioned plan.
5. The learned trial Court by a common judgment and
decree dated 12th March 2013 partly decreed RCS No.427 of 2011 to
the extent of granting perpetual injunction. However, the claim of
the defendants of declaration of title by adverse possession was
rejected. RCS No.430 of 2011 filed by the plaintiffs was also
dismissed. Being aggrieved by the said common judgment and
decree the defendants preferred RCA No.146 of 2013 while the
plaintiffs filed RCA No.166 of 2014 before the learned District Judge
against the dismissal of their suit.
6. The learned District Judge, Satara by a common
judgment and decree dated 06th May 2016 partly allowed RCA
No.146 of 2013 (Filed by the defendants) and held that the
defendants were in settled possession of an area to the extent of 90
N.S. Kamble page 3 of 17
902-sa-50-2021
x 48 sq.ft. and accordingly restrained the plaintiffs from evicting the
defendants, without following due process of law or causing
interference in their possession. It is necessary to note that the part
of the judgment and decree refusing to grant declaration of
ownership on the basis of adverse possession was confirmed. RCA
No.166 of 2014 filed by the plaintiffs was also partly allowed,
thereby granting a decree of perpetual injunction in favour of the
plaintiffs and restraining the defendants from disturbing the
possession of the plaintiffs or interfering with any construction
activities in accordance with law, in the balance area of CTS No.261
i.e. excluding the area referred to above i.e. 90 feet by 48 feet.
7. It appears that the defendants Pandurang Mhaske and
Others filed Second Appeal Nos.642 of 2016 while the defendants
Baban Mhaske & Others filed Second Appeal No.656 of 2016
challenging the said judgment and decree. The record discloses that
by an order dated 28th February 2017 and with the consent of
parties this Court appointed the Taluka Inspector of Land Record
(TILR) to demarcate separate portion of the lands out of CTS
No.231 as property-A, Property-B and Property-C as referred to in
paragraph Nos.6,7 and 8 of the common judgment and decree dated
06th May 2016 passed by the learned District Judge.
N.S. Kamble page 4 of 17
902-sa-50-2021
8. It appears that the City Survey Officer, Satara after
giving notice to all concerned carried out measurement on 03 rd April
2017 and demarcated the respective portions and submitted a map
along with report to this Court. It is necessary to note that both the
parties accepted the said report. It is in these circumstances, that
the Second Appeal Nos.642 of 2016 and 656 of 2016 came to be
disposed of by order dated 06 th September 2017 by consent of
parties. The relevant paragraph No.13 reads thus:-
"13. In light of the aforesaid developments, I am of
the view that the following order would substantially
address grievances on both sides, and meet the ends of
justice, particularly having regard to the peculiar facts
and circumstances of the present case and in view of
the narrow controversy involved in the present Second
Appeal. Hence, with the consent of the Advocates and
parties, the following workable order is being passed:
(i) The Common judgment and decree dated 06-05-
2016 Regular Civil Appeal Nos.146 of 2013 and 166 of
2014 is hereby confirmed. The map submitted by the
Surveyor dated 03-04-2007 pursuant to order dated 28-
02-2017 passed by this Court will form part of the
decree for the purpose of ascertaining the title and
actual possession of the respective parties with
reference to property described as Property-A, Property-
B- and Property-'C' in the said judgment and decree.
N.S. Kamble page 5 of 17
902-sa-50-2021
(ii) The TILR, Satra is directed to subdivide CTS
No.231 situate at Godoli, Taluka and District-Satra as
per the map dated 03-04-2017 within a period of 1
months from the date of uploading of this order.
(iii) The City Survey Officer is directed to give effect
of the said subdivision in the City Survey Records.
(iv) The Respondents are restrained from
dispossessing the Appellants in Property-B without
following due process of law.
(v) The Respondents are entitled to carry out
construction in the whole area of Property-'C' utilizing
the FSI available to the area referred to the extent of
Property-'B' subject to condition that the Respondents
shall file an undertaking within a period of one week
from the date of uploading of this order to the effect
that they shall keep flat/s approximately admeasuring
not less than 1,200 carpet area in the building
constructed by the respondent C.T.S. No.231, Godoli,
Taluka and District Satra, unsold and unencumbered for
the period set out in clause vii hereinafter.
(vi) The Respondents are at liberty to file within eight
weeks from the date of this order to evict the
Appellants from the property referred to as Property-'B'
in the common judgment and decree dated 06-05-2016
passed by the learned District Court, Satara in Regular
N.S. Kamble page 6 of 17
902-sa-50-2021
Civil Appeal Nos.146 of 2013 and 166 of 2014 and in
the map submitted by the Surveyor dated 03-04-2017
(Proposed Suit).
(vii) The aforesaid Flats shall be kept unsold and
unencumbered as indicated in Clause V above, until a
final decree is passed in the proposed suit, subject to
Appeal/s, if any, only if the proposed Suit is filed within
wight weeks from the date of this order. In the event
the propose Suit is dismissed by final decree, after
attaining finality, the Respondents shall execute a Sale
Deed in respect of the aforesaid Flats in favour of
Appellants.
(viii) In the event the Respondents get a final decree in
the proposed Suit to evict the Appellants from the
entire Property-'B' referred to hereinbefore, the
Respondents shall be entitled to dispose of the aforesaid
unsold and unencumbered Flats in the manner the
Respondents desire and the Appellants shall not have
any right, title or interest in the said Flats.
(iv) In view of the aforesaid arrangements, the
consent of the Appellants is not required revision of the
Sanctioned Plan which may be filed by the Respondents
with the Satra Municipal Council. The Satara
Municipal Council is free to consider the revision of
modification of the sanctioned plan which is to be
N.S. Kamble page 7 of 17
902-sa-50-2021
submitted without insisting upon any separate consent
of the Appellants, for such revision.
(x) For the purpose of giving effect to the present
order, the TILR/Survey Officer, Satara who has carried
out commission work pursuant to order dated 28-02-
2017 is directed to visits the site on 15-09-2017 for the
actual fixing of the boundary marks; the parties shall
attend to, and cooperate with, the fixation of the
boundary marks.
(xi) The Appellants shall not obstruct the
Respondents for the construction of a compound wall
with tin sheets between the properties which are in
possession of the respective Appellants and
Respondents as mentioned in the Judgment and Decree
dated 06-05-2016 passed by the learned District Court,
Satara in Regular Civil Appeal Nos.146 of 2013 and 166
of 2014 and in the map submitted by the Surveyor
dated 03-04-2017. The Senior Inspector of Police/In-
charge inspector of the local police station is directed to
provide police protection for constituting the said
compound wall with tin sheets, on the application of
the Respondents, if necessary.
(xii) The Appellants shall not create any third party
interests or part with the possession of the property
described as Property-'B' during the pendency of the
proposed Suit to be filed by the Respondents.
N.S. Kamble page 8 of 17
902-sa-50-2021
(xiii) The proposed Suit, if instituted by the
Respondents, shall be disposed of by the learned Trial
Court as expeditiously as possible and in any event
within a period of 9 months from its institution.
(xiv) The parties are liberty to move for clarification or
for giving effect to the aforesaid order, if necessary.
(xv) The Second Appeal are disposed of in the
aforesaid terms.
(xvi) All concerned to act on ordinary copy of this
order duly authenticated by the PA of this Court.
9. In pursuance of the liberty granted by this Court the
plaintiffs filed Special Civil Suit No.158 of 2017 for possession of the
area admeasuring 2256 sq.ft. (the suit property) shown by letter-B
in the map after removing any structure standing thereon and for
damages.
10. The defendant No.3 filed a written statement Exhibit-32
and resisted the suit. It was contended that the plaintiff has shown
the portion-B to be the open space when actually there is a house of
the defendant standing over the said portion. It was also contended
that the measurement made by the City Survey Officer in pursuance
N.S. Kamble page 9 of 17
902-sa-50-2021
of the order passed by this Court in Second Appeal Nos.642 of 2016
and 656 of 2016 was not correct and in any event that measurement
was limited to the dispute in the said appeal. In short the
correctness of the map was sought to be disputed. It was also
contended that the plaintiffs have already utilized the entire FSI
including the one available over the suit portion and therefore the
valuation of the suit property is nil. There were other contentions
raised about the pecuniary jurisdiction of the Court.
11. The defendant Nos.1, 2 and 4 to 12 filed a Pursis
Exhibit-52 and adopted the written statement of the defendant
No.3.
12. On the basis of the rival pleading the learned Trial
Court framed the following issues:-
Sr.No. Issues
1 Do the plaintiffs prove that, they are the owner
of the suit property situated in C.S.No.231
which is shown by letter "B" in plaint map ?
2 Whether the plaintiffs are entitled for
possession of suit property as prayed for ?
N.S. Kamble page 10 of 17
902-sa-50-2021
3 Whether the plaintiffs are entitled to get
compensation of Rs.13,00,000/- from the
defendants as prayed for ?
4 Whether the plaintiffs are entitled for
permanent injunction as prayed for ?
5 What order and decree ?
13. The plaintiff examined Yuvraj Narsingrao Kshirsagar
(PW-1) and produced the Property Card Exhibit-9, the copy of the
Sale Deed dated 29th December 2019 (Exhibit-71) and the copy of
the judgment of this Court in Second Appeal Nos.642 of 2016 and
656 of 2016 (Exhibit-11). The defendants did not lead any
evidence.
14. The learned trial Court answered issue Nos.1 and 2 in
the affirmative and the Issue Nos.3 and 4 in the negative. In the
face of the findings as above, the learned trial Court by a judgment
and decree dated 01st April 2019 partly decreed the suit directing
the defendants to hand over the vacant and peaceful possession of
the suit property i.e. admeasuring 2252 sq.ft. shown by Letter-B in
the plaint map, by removing construction/shed, if any, which decree
has been confirmed in appeal.
N.S. Kamble page 11 of 17
902-sa-50-2021
15. I have heard the learned counsel for the appellant and
the learned counsel for the respondent. With the assistance of the
learned counsel for the parties I have gone through the record.
16. In the appeal memo the appellant has framed the
following draft substantial question of law.
"(a) Whether the Ld. Trial Court as well as District
Court failed to appreciate the settled position of law
that when there is discrepancy between the boundaries
and the area of the property sought to be transferred
vide a sale deed, the boundaries prevail over the area ?"
17. It is submitted by the learned counsel for the appellant
that there was no issue about the ownership framed in the earlier
round of litigation. It is submitted that Section 91 of the Evidence
Act, would require the plaintiffs to produce the Sale Deed to prove
title and the title cannot be proved on the basis of oral evidence. It
is next submitted that there is discrepancy in the area and
boundaries and in such a case it is the boundaries which shall
prevail. It is submitted that the Courts below have not properly
appreciated the contentions in this regard.
N.S. Kamble page 12 of 17
902-sa-50-2021
18. On behalf of the appellants reliance is placed on the
decision of the Supreme Court in the case of Ramlal and Another
V/s. Phagua & Others 1
and of this Court in Temple of Maruti,
situated at Cacoda, by its attorney Shri.Shashikant Shembu
Nagvenkar V/s. Balkrisna Suryaji S. Kakodkar & Anr.2.
19. The learned counsel for the respondents has supported
the impugned judgment.
20. It is submitted that in the earlier round of litigation the
suit property was got measured and the report filed by the City
Survey Officer and the map annexed was not disputed. It is
submitted that the Second Appeal Nos.642 of 2016 and 656 of 2016
were disposed of by consent of parties. It is submitted that the
Court below in the earlier round of litigation have concurrently
refused to accept the case put forth by the defendants based on
adverse possession and thus now the appellants cannot question the
same particularly when the said findings have attained finality. It is
submitted that there is no dispute about the identity of the property
and in any event the property is sufficiently identified by portion-B
1 AIR 2006 Supreme Court 623
2 1998(3) Bom. CR. 540
N.S. Kamble page 13 of 17
902-sa-50-2021
as shown in the map annexed to the plaint. He therefore submitted
that the appeal does not raise any substantial question of law.
21. I have carefully considered the rival circumstances and
the submissions made and I do not find that the appeal raises any
substantial question of law.
22. The contention that there was no issue about the
ownership framed in the earlier round of litigation cannot be
considered or accepted for more reasons than one. The previous
round of litigation ended in the order dated 06th September 2017
passed by this Court in Second Appeal Nos.642 of 2016 and 656 of
2016 which order is shown to be passed by consent of the parties.
That matter is obviously not carried any further. Thus, it is not now
open to the appellants to claim that there was no issue of the
ownership framed, in the earlier litigation.
23. That apart, except the land purchased by the
predecessor of the defendants under Sale Deed dated 30 th January
1948 (i.e. land admeasuring 48 x 43 feet) the claim of the
defendants in the suit to the balance area was based on adverse
possession, which was concurrently negated by the Courts below in
N.S. Kamble page 14 of 17
902-sa-50-2021
the earlier round of litigation. When the claim of the defendants in
respect of the balance land was admittedly based on adverse
possession it pre-supposes that the defendants are not questioning
the prior ownership of the plaintiffs. A claim of adverse possession
can be made and sustained only against the real owner. Thirdly,
contention about the absence of any such issue, in the earlier round
of litigation cannot examined in the present appeal. Lastly, as
noticed in the order 28th February 2017 in Second Appeal Nos.642
of 2016 and 656 of 2016, there was no challenge to the report filed
by the City Survey Officer and the map.
24. Even so far as the ground based on the discrepancy in
the area and boundaries is concerned, it is true that in the event of
such discrepancy the boundaries would prevail. However, whether
there is any such dispute about the area and boundaries would
obviously depend upon the facts and circumstances of each case.
The First Appellate Court has dealt with this aspect in paragraph 21
onwards. It is necessary to note that the defendants did not produce
their Sale Deed of the year 1948 on record. However, the First
Appellate Court has noted the boundaries of the suit property as
mentioned by the defendants in RCS No.427 of 2011 filed by them.
The First Appellate Court has then juxtaposed the said boundaries
N.S. Kamble page 15 of 17
902-sa-50-2021
with the boundaries mentioned in the Sale Deed dated 29 th
December 2019 and has thereafter come to the conclusion, on the
basis of the recitals in the Sale Deed, which go to show that the
plaintiff has purchased the balance area out of CTS No.231 after
excluding the area purchased by Vithal Mhaske under registered
Sale Deed dated 30th January 1948.
25. I have carefully gone through the reasoning as
articulated by the First Appellate Court and I do not find that it
suffers from any infirmity.
26. The learned counsel for the appellant placed reliance on
the decision of the Supreme Court in the case of Ramlal and Anr., in
order to submit that where both the Courts below concurrently erred
in not appreciating the oral and documentary evidence properly, the
High Court would be at liberty to re-appreciate the evidence and
record its own conclusion in reversing the orders passed by the
Court below. There cannot be any manner of dispute with the
preposition as relied upon by the appellant. However, here again,
whether the findings recorded are perverse and whether there is
proper appreciation of the oral and documentary evidence or not
would again depend on the facts and circumstances in each case.
N.S. Kamble page 16 of 17
902-sa-50-2021
27. Coming to the present case before the trial Court the
only evidence available was of PW-1. The defendant did not lead
any evidence. As noticed earlier both the Courts upon appreciating
the said evidence and in particular the order passed in Second
Appeal Nos.642 of 2016 and 656 of 2016 which is passed by consent
of parties and in the wake of the fact that there was no objection
taken to the report and the map submitted by the surveyor, have
come to the conclusion about the plaintiff having established their
case. Thus I do not find that the finding so recorded can be said to
be perverse or against the weight of the evidence on record so as to
give rise to any substantial question of law. The appeal is without
any merit and it is accordingly dismissed, with no order as to costs.
Decree be drawn accordingly.
C.V. BHADANG, J.
N.S. Kamble page 17 of 17
