Bombay High Court

Suresh Chindu Jadhav vs Tarachand Ananda Patil on 29 October, 2021

Bench: V. V. Kankanwadi

                                       (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                     SECOND APPEAL NO.189 OF 2019
                                 with
                 CIVIL APPLICATION NO.12685 OF 2019
                  CIVIL APPLICATION NO.4114 OF 2019

 Suresh Chindu Jadhav                                       = APPELLANT
                                                          (orig.Plaintiff)

          VERSUS

 Tarachand Ananda Patil                                     = RESPONDENT
                                                          (orig.Defendant)
                                      -----
 Mr.JR Shah,Advocate for Appellant;
 Mr.VD Salunke,                Adv.h/for     Mr.    MV     Bhamre,          Adv.for
 Respondent.
                                      -----

                                 CORAM :     SMT.VIBHA KANKANWADI,J.

RESERVED ON : 21/10/2021 PRONOUNCED ON : 29/10/2021

PER COURT :-

1. Present appeal has been filed by original

plaintiff, challenging the judgment and decree

passed in Civil Appeal No.13/2013 by learned

District Judge-1, Nandurbar on 9.4.2018, thereby

partly decreeing the appeal filed by the present

respondent (original defendant) and thereby

modifying the decree passed by the Trial Judge. The

present appellant-original plaintiff had filed

Regular Civil Suit No.17/2002 for permanent

injunction. The said suit was decreed in toto and

the defendant, his relative, servant or agent, were

permanently restrained from interfering with the

peaceful possession of the plaintiff over the suit

plot No.37. However, in the appeal filed by the

original defendant, the learned first Appellate

Court, by partly allowing the appeal, modified the

decree and the defendant was permanently restrained

from disturbing the possession of the plaintiff to

the extent of half portion towards western side,

admeasuring 250 sq.mtrs in the suit plot No.37,

situated at C.S.No. 286 at Gopalnagar area in

Nandurbar.

2. Heard learned Advocates appearing for the

respective parties.

3. It has been vehemently submitted on

behalf of the appellant that the learned first

Appellate court totally erred in modifying the

decree when the Trial Court had come to the

conclusion that he had proved his lawful possession

over the suit property referable to the valid

title. The learned First Appellate Court has

wrongly taken the facts into consideration. The

plaintiff had purchased the suit plot from one

Moijbhai Tayyebali on 17.10.1983 for a

consideration of Rs.2,000/-. The area mentioned in

the sale-deed was to the extent of 450 sq.mtrs and

its boundaries were given. The plaintiff himself

had averred that the Tahsildar had ordered him to

pay deficit stamp of Rs.1,255/- on 31.12.1986. But

he had deposited the same on 25.1.2000 to the

Government. The learned Trial Judge has correctly

held that though the plaintiff had paid the deficit

court fees at much later point of time; yet his

title cannot be said to have been extinguished or

suffered from any defect. The original owner had no

authority to transfer part of that property to the

defendant as claimed by the defendant. The learned

first Appellate Court has wrongly applied the

principles of Order 39 Rule 1 and 2 of CPC at the

time of dismissal of the Regular Appeal. It was

further wrongly considered by the first Appellate

Court that since the documents are registered and

public documents are coming from the custody of the

authorities, the Court need not require the factum

of ownership and title to be proved in a suit for

injunction. Substantial questions of law are

arising in this case, requiring admission of the

Second Appeal.

4. Per contra, learned Advocate Mr. Salunke,

holding for Advocate Mr.Bhamre, for the respondent,

submitted that the first Appellate court has

correctly interpreted the facts and proper

appreciation of the sale-deed executed in favour of

the defendant by the original owner has been made.

Half of the said plot No.37 was then purchased by

the defendant on 17.8.1999. At the most, it can be

said that the plaintiff is owner and possessor of

the half portion. In fact, no substantial question

of law, as contemplated under Section 100 of CPC,

is arising in this case. Those proposed substantial

questions of law in the appeal memo are, in fact,

the questions of fact and, therefore, the Second

Appeal need not be admitted.

5. Here in this case, the plaintiff has come

with a case that he purchased the suit plot No.37

from Moijbhai Tayyebali on 17.10.1983 for a

consideration of Rs.2,000/-. He has produced the

document on record. It is to be noted that it was

a registered document. It has its own presumptive

value. However, in the normal course, the Sub-

Registrar would check whether sale-deed is with

proper stamp duty or not and then he would go ahead

with the registration. But, then it appears that

some stamp duty remained to be paid and, therefore,

notice was issued to the plaintiff. Exhibit-100

issued by the Tahsildar gives the date as 31 st

December, 1996. Prior to that, another notice was

issued on 8.8.1991, which is at Exh.99. According

to the plaintiff, the Tahsildar had ordered him to

pay deficit stamp on 31.12.1986. Any way, the

plaintiff deposited the amount of deficit stamp on

25.1.2000. Now, the question was as to what was

the effect of the belated payment of deficit stamp

duty. Whether it could not have been transferred

the title in favour of the plaintiff in respect of

the entire property, which was mentioned in the

sale-deed in his favour, executed on 17.10.1983 or

whether any such right was left with the original

owner to dispose of the suit property or part

thereof ? Admittedly, the sale-deed of the

defendant is subsequent. The learned Trial Court

has held that the plaintiff has proved his lawful

possession over the suit property referable to

valid title. It has been taken that though stamp

duty was deposited, act of transfer of the title

was complete by registration of the sale-deed dated

17.10.1983. In the said sale-deed, there is

recital regarding handing over of the possession of

the entire property mentioned in the sale-deed.

Now, when the original owner had given the

possession of the entire land to the plaintiff on

the date of the sale-deed, then whether at the time

of execution of the sale-deed in favour of the

defendant, the vendor of the defendant would have

been in a position to hand over even part of the

suit land to the defendant, is a question.

Definitely, substantial question of law is arising

in this case in view of the view taken by the first

Appellate Court, which was contrary to the view

taken by the Trial Court and it appears that the

first Appellate Court even while framing the point

for determination, has applied the notion of Order

39 Rule 1 and 2 of CPC, when in fact, it was a

Regular Appeal.

6. For the aforesaid reasons, the Second

Appeal stands admitted. Following are the

substantial questions of law, -

i. Whether the First Appellate Court justified in law in interfering in the appeal by modifying the decree of injunction to the extent of 250 sq.mtrs. ?

                  ii.                Whether            the        vendor           of       the
                  defendant            still           had      right,          title        and

possession to the extent of 250 sq.mtrs from plot No.37 to transfer it to the defendant, when he had already sold the entire plot to the plaintiff on 17.10.1983 ?

iii. Whether there was any defect in the title of the plaintiff due to delay in paying the deficit stamp duty ?

iv. Whether the first Appellate Court erred in relying on the evidence of the defendant, which was inadmissible in nature ?

v. Whether interference is required ?

7. Issue notice to respondent after

admission. Learned Advocate Mr. Bhamre waives

notice.

8. Call R and P.

9. Civil Application No. 12685/2019 filed by

the appellant-applicant is for producing additional

evidence and it appears that he wants to rely on

the public documents and, therefore, it can be

taken up along with hearing of the Second Appeal.