Bombay High Court
Shikharchand S/O Nemichand ... vs Shivaji S/O Anantrao Shejul on 25 November, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.401 OF 2021
WITH
CIVIL APPLICATION NO.10474 OF 2021
IN SA/401/2021
SHIKHARCHAND S/O NEMICHAND AJMERA
VERSUS
SHIVAJI S/O ANANTRAO SHEJUL
.....
Advocate for Appellant/Applicant : Mr. A. D. Kasliwal
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE OF RESERVING THE ORDER :
06-10-2021.
DATE OF PRONOUNCING THE ORDER :
25-11-2021.
ORDER :
1. Present appeal has been filed by the unsuccessful plaintiff to
challenge the concurrent Judgment and decree.
2. The appellant/plaintiff had filed R.C.S.No.244 of 2008 before 3 rd
Joint Civil Judge Junior Division, Majalgaon, District Beed, for
declaration and permanent injunction. The said suit came to be
dismissed on 30-01-2014. R.C.A.No.14 of 2014 preferred by the
2 SA 401-2021, CA 10474-2021
present appellant before learned District Judge-1, Majalgaon, District
Beed, came to be dismissed on 26-03-2021. Hence, this second
appeal.
3. Heard learned Advocate Mr. A. D. Kasliwal for appellant.
4. Apart from the factual submissions, the learned Advocate for
the appellant while laying hand on the point that substantial
questions of law are arising in this case relied on Ishwar Dass Jain
(dead) through LRs v. Sohan Lal (dead) by LRs, reported in AIR
2000, Supreme Court 426, wherein it has been held that :-
"Though the High Court is required to interfere with
the finding of fact, in exceptional cases, yet the
interference is permissible when material or relevant
evidence is not considered by the Courts below."
He also relied on Yeshwant Bhaduji Ghuse vs. Vithobaji Laxman
Ladekar, reported in 2010 (3) Bom.C.R. 373, Kolhapur Bandu
Lakade vs. Yallappa Chinappa Lakade, Dead., Thru. Pooja @
Poojari Y. Lakade and Ors., reported in 2011 (3) Bom.C.R. 807, to
support Civil Application No.10474 of 2021 for appointing D.I.L.R. as
Court Commissioner for measuring the suit land.
5. In view of Ashok Rangnath Magar vs. Shrikant Govindrao
3 SA 401-2021, CA 10474-2021
Sangvikar, reported in (2015) 16 SCC 763, it is not necessary to
issue notice to the respondent at this stage unless the appellant
shows substantial questions of law and they are so framed by this
Court.
6. The facts of the case would show that plaintiff as well as
defendant were claiming to be the owners of the disputed plot.
According to the plaintiff, the disputed plot is plot No.28 out of
Survey No.385 situated at Majalgaon which he purchased from one
Gafoorkhan Ahmedkhan Pathan on 25-07-1994. Per contra, the
defendant is contending that the disputed plot is plot No.30 which he
had purchased from one Ashruba Rambhau Jadhav on 23-05-1994
and it was purchased by said Ashruba from Gafoorkhan Pathan from
the plots made in Survey No.385. According to him, in fact plot
Nos.28 and 29 are not in existence at all. Both the Courts have held
that the plaintiff has failed to prove that he is owner of plot No.28
from Survey No.385. It appears that Court Commissioner was
appointed by the Trial Court who was not an expert but then his
report was on record. We cannot forget a fact that both the parties
have registered instrument in their favour. Plaintiff examined son of
his vendor as PW 4. He has also examined the other witnesses,
4 SA 401-2021, CA 10474-2021
whereas the defendant had examined certain other witnesses as well
as his predecessor in title. Both the properties were entered to the
Municipal record and they are paying Municipal taxes. Defendant in
his cross-examination admitted that he has no concern with plot
No.28 and it has been purchased by the plaintiff. Conversely even
the plaintiff is admitting that defendant had purchased Plot Nos.27
and 30. Under such circumstances, the proper person to prove the
lay out and plotting would have been PW 5 Mansoorkhan s/o
Gafarkhan. Both the Courts below have disbelieved him. When it is
the question of identity of the plot/land then it is required to be seen
as to whether the plaintiff had proved it by cogent evidence or not.
Though the learned Advocate for the appellant is relying upon the
case of Yeshwant Bhaduji Ghuse (Supra) it was concerning the suit
against encroachment. Further, he relied upon the case of Kolhapuri
Bandu Lakade (Supra) which was the pronouncement of this Court
on the basis of ratio laid down in Haryana Waqf Board vs. Shanti
Sarup, 2008 (8) SCC 671, wherein it was held that in a case of
dispute about demarcation of land, it is appropriate to direct
investigation by a Court Commissioner under Order 26 Rule 9 of the
C.P.C. which would necessary for just decision of the case. Here in
this case, it is not the demarcation of land which is dispute but the
5 SA 401-2021, CA 10474-2021
identity itself in dispute and, therefore, it is definitely certain that
the application for the appointment of DILR as Court commissioner
cannot be allowed as it would amount to collection of evidence which
is not at all contemplated under Order 26 of C.P.C. However,
whatever evidence has been adduced by the parties can be
appreciated by this Court in order to see whether the finding arrived
at by them is proper or not. At the cost of repetition it can be said
that when both the parties were claiming title on the basis of
registered sale deed then what could have been the intention of the
parties and how they tried to identify the property whose sale deed
was prior in time etc., are the points involved. Therefore, case is
made out to admit the second appeal. Hence, the second appeal
stands admitted.
7. Following are the substantial questions of law :-
(1) Whether both the Courts below justified in
holding that plaintiff has failed to prove his ownership
and possession over the suit property Plot No.28 in
Survey No.385 in spite of having registered sale deed
in his possession ?
(2) Whether interference is required ?
6 SA 401-2021, CA 10474-2021
8. Issue notice to the respondent, returnable on 17-01-2022.
9. Call for record and proceedings.
10. Pending Civil Application No.10474 of 2021 for appointment of
DILR as Court commissioner for carrying out measurement of Plot
No.28 in Survey No.385 situated at Majalgaon Dist.Beed, stands
rejected.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
