Sharja Prabhudas Chavan vs Pyarelal Isak Maner
2021 Latest Caselaw 5737 Bom

                                                        12-SA-400-2018.odt


 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         CIVIL APPELLATE JURISDICTION

             SECOND APPEAL NO.400 OF 2018
                          WITH
            CIVIL APPLICATION NO.946 OF 2018

Sharja Prabhudas Chavan                      ... Appellant
     Vs
Pyarelal Isak Maner                        ... Respondent
                                ...

Mr. Prithviraj S. Gole i/by Ms. Anusha P. Amin for the Appellant.

Mr. Tejpal S. Ingale for the Respondent.

CORAM : SANDEEP K. SHINDE J.

DATE : 30th MARCH, 2021.

ORAL JUDGMENT :

Appellant/plaintiffs Regular Civil Suit No.201 of

2010 seeking decree of perpetual injunction was dismissed

on 27th March, 2014 by Joint Civil Judge, Junior Division,

Miraj. Appeal against the said rejection, also met with same

fate. As such, plaintif has preferred this appeal against the

decree in Regular Civil Appeal No.81 of 2014 dated 17 th

June, 2017 by Ad-hoc District Judge-1, Sangli. The suit

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property is Plot No.27, Original Gunthewari Plot No.3

situated in City Survey No.36/2 + 3A/2B having area of 0.03

HR, i.e., 300 sq.mtrs. at Sangli, Miraj and Kupwad Municipal

Corporation area at Miraj. Plaintif would assert her

possession over the suit land on title.

2 It is plaintiffs case that her husband vide sale

deed dated 26th April, 1989 purchased suit plot from

Laxman Ramchandra Jadhav. It is plaintiffs case that

Jadhav had purchased suit plot/property from Vitthal Bapu

Khot vide sale deed dated 15 th July, 1985. Apprehending the

obstruction to her possession over the suit property, the

subject suit was instituted. Indisputably, the plaintif did not

produce title deeds or such revenue entries to substantiate

her possession over the suit land. When the suit was posted

for fnal arguments, she had moved an application under

Order 41 Rule 27 of the Code of Civil Procedure, 1908.

Having regard to the stage at which


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                                                         12-SA-400-2018.odt

application was preferred, the learned Trial Court declined

the request. The review of the order was also rejected.

These orders were carried before this Court in Writ Petition

No.2703 of 2014. On 12th March, 2014, this Court declined

to interfere. As such, Writ Petition was dismissed.

3 Be that as it may, in absence of any evidence to

hold the plaintiffs possession over the suit land, the suit

was dismissed. It may be stated that the defendant would

claim possession over the suit property on title. It is her

case that original owner of the suit property Vithal Bapu

Khot had sold the suit land to him vide sale deed dated 24 th

March, 1988.

4 The judgment of the Trial Court shows that issue

relating to the plaintiffs title to the suit property was

framed being Issue No.1 and it was answered in negative.

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5               The judgment and the decree of the Trial Court

was carried in appeal being Regular Civil Appeal No.81 of

2014. Pending appeal, another application was moved

under Order 41 Rule 27 to bring on record title deeds and

revenue entries. The said application was rejected by the

Appellate Court in view of the order passed by this Court in

Writ Petition as aforesaid.

6 Therefore, to say the fndings recorded by the

Courts below, cannot be said to be perverse as such appeal

does not give rise to any substantial questions of law.

Appeal is, therefore, dismissed.

7 It may be stated that plaintif was asserting her

possession over the suit property on the basis of registered

sale deed dated 26th April, 1989. May be for some reasons

sale deed and such other documents could not be produced

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before the Trial Court. In the circumstances, although the

issue no.1 relating to plaintiffs, title has been answered in

negative, it was so answered, in absence of title deeds,

production of which was declined. Thus, to be observed

that the Trial Court had not gone into or examined, the title

of the plaintif, vis-a-vis the suit land. In the circumstances,

if appellant/plaintif fles suit for declaration of her title,

fnding recorded by the Trial Court as against the issue no.1

Regular Civil Suit No.201 of 2020 shall not preclude her

from asserting her title.

8 With these observations, the Second Appeal is

rejected. Civil Application is disposed of.

                                       (SANDEEP K. SHINDE, J.)




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