Bombay High Court
Dattatraya Dhondiba Ghodke vs Hanumant Dattatraya Phalle on 16 March, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 642 OF 2019
Dattatraya Dhondiba Ghodke ..Appellant
Vs.
Hanumant Dattatraya Phalle ..Respondent
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Mr. Dilip Bodake for the Appellant.
Mr. V. B. Tapkir for the Respondent.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 11th FEBRUARY 2021
PRONOUNCED ON : 16th MARCH 2021
P.C.
. The challenge in this appeal is to the judgment and decree
dated 25/6/2019 passed by the learned Ad-hoc District Judge, Pune
in Regular Civil Appeal No.555/2015. By the impugned judgment,
the learned District Judge, while dismissing the appeal, filed by the
appellant has confirmed the judgment and decree dated 13/1/2015
passed by the learned Senior Civil Judge Pune in Special Civil Suit
No.1152/2011.
2. The brief facts necessary for the disposal of the appeal may be
stated thus-
The respondent filed the aforesaid suit against the appellant,
for removal of encroachment and for possession etc. The subject
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matter of dispute happens to be a land admeasuring 199.25 sq. mt.
from eastern side, from out of Plot No.27 (survey No.37/2) of
Vadgaon Sherry within the limits of Pune Municipal Corporation.
The suit property is more specifically described in para 1 of the
plaint.
3. The case made out by the respondent is that the respondent
has purchased the suit property from Dattu Ramchandra Galande
under registered sale deed dated 29/9/1988 alongwith rectification
deed dated 5/1/2011. As per mutation entry No.16226, the suit
property has been recorded in the name of the respondent in the
revenue record.
4. The respondent was in Government service and has since
retired on 31/5/2009. Somewhere in May 2009 when the
respondent went to the suit property, he noticed that the appellant
has unauthorisedly encroached in the suit property and has made a
construction thereon. Upon inquiry, the appellant claimed that the
said portion has been given to him by Dattu Galande. According to
the respondent, the previous owner Mr. Dattu Galande informed the
respondent that the appellant has no concern with the suit property.
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5. The respondent issued a notice dated 20/4/2011 asking the
appellant to remove the encroachment. The appellant failed to
comply and issued a reply dated 23/5/2011 refusing to deliver
vacant possession which led the respondent to file the suit as
aforesaid.
6. The appellant resisted the suit on various grounds. The
correctness of the description of the property was denied. It is the
material defence that the appellant was working with Mr. Dattu
Galande in his flour mill and was residing in Geetabai Chawl as a
tenant of Shri. Galande. In the meantime, Mr. Galande delivered the
possession of the said chawl to a builder for development and in
such circumstances, the appellant was required to vacate the
premises in Geetabai Chawl and the suit property was given to the
appellant somewhere in the year 1995 as an alternate
accommodation. In short, according to the appellant, he is residing
in the suit property from the year 1995 after erection of the tin shed.
He made certain construction in the suit property somewhere in the
year 2010.
7. On the basis of the rival pleadings, the learned Trial Court
framed as many as six issues.
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8. The respondent examined himself alongwith adjacent owner
Dnyaneshwar Ganpat Madne. The appellant examined himself in
support of his defence. Both the parties produced certain
documents.
9. The learned Trial Court answered issue No.1 to 3 and 5 in the
affirmative and issue No.4 in the negative and by judgment and
decree dated 13/1/2015 decreed the suit directing the appellant to
handover vacant possession of the suit property to the respondent.
10. Feeling aggrieved the respondent challenged the same before
the learned District Judge.
11. The learned District Judge by the impugned judgment and
decree has dismissed the appeal.
12. I have heard Mr. Bodake, the learned counsel for the appellant
and Mr. Tapkir, the learned counsel for the respondent. With the
assistance of the learned counsel for the parties, I have gone through
the record.
13. It is submitted by the learned counsel for the appellant that
the identity of the suit property has not been established on record.
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It is submitted that in the absence thereof there is no proof about
ownership and title of the suit property, as claimed by the
respondent within the meaning of Section 102 to 104 and 110 of the
Evidence Act.
14. It is submitted that the suit as framed and filed simplicitor for
removal of encroachment and for possession was not maintainable
in the absence of a declaration as to ownership, as per Section 31,
34 and 35 of the Specific Relief Act, 1963.
15. It is submitted that both the Courts below have failed to
properly appreciate the evidence on record, in the context of the
legal provisions as aforesaid.
16. It is next submitted that the suit as framed and filed was not
maintainable and could not have been decreed in the absence of
compliance with the mandatory provision of Order VII Rule 3
(Bombay Amendment) to CPC i.e. for non filing of a sketch. It is
submitted that admittedly no measurement of the suit property has
been carried out. It is submitted that the Courts below ought to
have seen that the appellant has perfected his title by adverse
possession as per Article 65 of the Limitation Act.
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17. It is submitted that in any event, in the absence of there being
any evidence as to the measurement showing the nature and extent
of the encroachment, the suit could not have been decreed. On
behalf of the appellant, reliance is placed on the decision of this
Court in Sudhakar s/o. Baburao Kulkarni Vs. Gorabai w/o. Thansing
Marag and Ors. 2019(3) ALL MR 823. It is submitted that the First
Appellate Court was in error in placing reliance on the decision of
this Court in Catarina Fernandes and Ors. Vs. Jose Menino
Rodrigues and Another 2013(1) Mh.L.J. 367.
18. The learned counsel for the respondent has supported the
impugned judgment. It is submitted that the property has been
properly identified. In the year 2011, there was a mere correction of
the eastern and western boundaries of the land purchased by the
respondent and Dnyaneshwar Madne (P.W.2). It is submitted that
the First Appellate Court has noticed in para 26 of the impugned
judgment that the case set up by the appellant is discrepant and he
has failed to establish that he has perfected his title by adverse
possession. It is submitted that in the absence of the appellant
admitting the title of the respondent or anybody else, the plea of
adverse possession cannot be sustained. For this purpose, the
learned counsel has placed reliance on several decisions namely-
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1. T. Anjanappa and Ors. Vs. Somalingappa and Anr. 2006 AIR
SCW 4368.
2. Thakur Kishan Singh (dead) Vs. Arvind Kumar AIR 1995 SC
73.
3. Dagadabai (D) by L.Rs. Vs. Abbas @ Gulab Rustum Pinjari
2017(4) ALL MR 448 (S.C.).
4. M. Durai Vs. Muthu and Ors. (2007) 3 SCC 114.
5. The State Bank of Travancore Vs. Arvindan Kunju Panicker
and Ors. AIR 1971 SC 996.
6. Md. Mohammad Ali (Dead) by LRs. Vs. Jagadish Kalita and
Ors. (2004) 1 SCC 271.
7. Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan &
Ors. (2009) 16 SCC 517.
8. Yoshita R. Rivankar and Ors. Vs. Sunita Haldankar and Ors.
2014(4) Mh.L.J. 463.
9. Indira Vs. Arumugam and Anr. (1998) 1 SCC 614.
10. Sharfunnisa w/o. Abdul Karim Vs. Maruti Sakharam Kale
2001(4) Mh.L.J. 772.
19. It is submitted that the provisions of Order VII Rule 3 of CPC
are not mandatory. It is submitted that in a case where the entire
suit property has been encroached upon of which the possession is
sought. Compliance with Order VII Rule 3 of CPC is not necessary.
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For this purpose, reliance is placed on the decision of this Court in
Catarina Fernandes.
20. I have carefully considered the rival circumstances and the
submissions made. Indisputably, Dattu Galande was the owner of
the suit property including the portion sold to P.W.2 Dnyaneshwar
Madne. By virtue of a sale deed dated 29/9/1988 (Exh.24), 2 Ares
of land is shown to be sold by Dattu Galande to the respondent. By
a separate sale deed dated 29/9/1988 (Exh.58), one Are of land is
sold to P.W.2 Dnyaneshwar Madne. However, it appears that
although the land shown to be sold to Dnyaneshwar Madne was on
eastern side of the suit property (sold to the respondent), the same
was shown on the western side. Thus, only the eastern and western
boundaries of the portion sold to the respondent and Dnyaneshwar
Madne came to be corrected by executing separate rectification
deeds dated 4/1/2011 which are at Exh.25 and 62. Exhibit 58 is the
sale deed executed in favour of Dnyaneshwar Madne.
21. Be that as it may, the First Appellate Court after juxtaposition
of the boundaries, as mentioned in the sale deeds Exh.24 and 58
and the rectification deeds Exh.25 and 62, has found in para 14,
that the correction was in respect of the eastern and western
boundaries. The First Appellate Court has found that the plots
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purchased by the respondent and Dnyaneshwar Madne are adjacent
to each other and are situated between the plot of Badambai Hiralal
Mutha and a public road. Thus, the First Appellate Court has found
and to my mind rightly so that the identity of the property has been
property established.
22. It is the case of the appellant that he was working in the flour
mill of Dattu Galande and used to reside in the premises better
known as Geetabai Chawl which was given by Dattu Galande for
redevelopment. It is in these circumstances that the appellant was
permitted to reside in the suit property somewhere in the year 1995.
Initially, the appellant was residing there by constructing a shed and
subsequently in the year 2010 had made a construction and the
open portion was being used for storage of the material as the
appellant was doing the business as a decorator. Thus, the material
case is about permissive user of the suit property as permitted by
Dattu Galande. The evidence of the appellant shows that he also
claimed that Dattu Galande had informed him that although he had
sold two Ares of land to the respondent, the respondent had paid
consideration of only 1 Are and therefore, the balance 1 Are was
purchased by the appellant for which he had paid Rs.5,000/- to
Dattu Galande in the year 1996 and thereafter, Rs.1,000/- and
Rs.3,000/- to his sons i.e. Balkrishna Dattu Galande and Nivrutti
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Dattu Galande in the year 1997 and 2000 respectively. Although the
appellant claimed that he would be examining the previous owner
Dattu Galande as well as Balkrishna Galande and Nivrutti Galande,
they were not examined. That apart, admittedly, there is no
evidence about execution of any registered sale deed in respect of 1
Are of land in favour of the appellant. It is trite that the transfer of
immovable property of a value more than Rs.100/- has to be by a
written instrument duly registered. The First Appellate Court in
para 26 of the judgment has also noted that in the application and
undertaking (Exh.47 to 53) submitted by the appellant to the
Electricity Board, he claimed that he was in possession of the suit
property in the capacity as a tenant. Thus, the defence of the
appellant, as noticed by the First Appellate Court is discrepant. In
any event, in the absence of a registered sale deed the appellant has
failed to establish his title in comparison with the title of the
respondent which is supported by the sale deed Exh.24 alongwith
Rectification deed Exh.25.
23. Coming to the issue of adverse possession, it is trite that any
possession which is a permissive possession is anaethema to a case
of adverse possession. It is also well settled that adverse possession
presupposes that it is hostile to the true owner. In the absence of the
appellant admitting the ownership of the respondent, it cannot be
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said that the plea of adverse possession can be sustained. As noticed
earlier, initially the case set up is about Dattu Galande having
permitted the appellant to use the suit property somewhere in the
year 1995. There is nothing in the pleadings or in the evidence to
show as to when such permissive possession became adverse or
hostile to the true owner. I do not find that the finding recorded by
the Courts below suffers from any infirmity or is against the weight
of the evidence on record.
24. Coming to the requirement of the respondent having sought a
declaration of title, it is now well settled that it is only when there is
a cloud on the title of the plaintiff, raised that the plaintiff has to
seek such declaration and not otherwise. To put it differently, it is
not in every case where the possession is sought on the basis of title
that a party would be required to seek such declaration. It is only
when a cloud is raised on the title of the plaintiff that such
declaration needs to be sought. Coming to the present case, there is
a sale deed and the rectification deed executed by Dattu Galande in
favour of the respondent. Dattu Galande is admittedly the previous
owner. As against this, the case set up by the respondent as noticed
earlier is of permissive possession by Dattu Galande. Thus, I do not
find that there is any cloud raised as on the title of the respondent,
so as to require the respondent to seek a declaration of title.
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25. Coming to the ground based on Order VII Rule 3 of CPC, this
Court in the case of Catarina Fernandes (supra) has held that the
non filing of the sketch showing the extent of encroachment, is not
fatal when the encroachment is on the entire property. In the
present case, the entire suit property is claimed to be encroached by
the appellant. Thus, I do not find in the facts and circumstances of
this case that non filing of the sketch would be fatal.
26. The learned counsel for the appellant has also referred to the
provisions of Section 102 to 104 and Section 110 of the Evidence
Act which provides for burden of proof. Section 110 which is
relevant for the purpose, provides that when the question is whether
any person is owner of a property of which he is shown to be in
possession, the burden of proving that he is not the owner is on the
person claims that such person is not the owner. The section
incorporates the well established principle that possession follows
title. In the present case, the burden has been properly discharged
on the basis of the sale deed Exh.24 read with the rectification deed
Exh.25 particularly in the context of the failure of the appellant to
establish adverse possession.
27. To conclude, this is a case where there is a sale deed and the
rectification deed in favour of the respondent executed by Dattu
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Galande who is admittedly the previous owner of the suit property.
Quite to the contrary, the case of the appellant is of permissive
possession. The appellant also claims to have perfected the title by
adverse possession, which he has failed to establish. The appeal is
without any merit and is accordingly dismissed with no order as to
costs. A decree be drawn accordingly.
26. At this stage, the learned counsel for the appellant seeks
extension of the interim relief which was operating during the
pendency of the appeal. The prayer is opposed on behalf of the
respondent on the ground that the respondent is a senior citizen and
has no other place to stay.
27. However, considering the fact that the interim relief was
operating during the pendency of the appeal, the same is extended
for a period of six weeks.
C.V. BHADANG, J.
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