Bombay High Court
Madhukar Arjunrao Waghmode vs Dharmaraj Apparao Patte And ... on 1 September, 2021
Bench: V. V. Kankanwadi
sa-160-2018 with CA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.160 OF 2018
WITH CA/2770/2018 IN SA/160/2018
MADHUKAR S/O ARJUNRAO WAGHMODE
VERSUS
DHARMARAJ S/O APPARAO PATTE AND OTHERS
...
Mr. B. R. Waramaa, Advocate for the appellant.
Mr. A. M. Gholap, Advocate for respondent Nos.1 to 3.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 01.09.2021
ORDER :-
. Present appeal has been filed by the original plaintiff to challenge
the concurrent judgment and decree. He had filed Regular Civil Suit
No.83 of 2001 before the learned Civil Judge Senior Division, Beed for
declaration and mandatory injunction. The said suit came to be
dismissed on 26.11.2012. He then challenged the said judgment and
decree before the learned District Court, Beed by filing Regular Civil
Appeal No.13 of 2013. The said appeal was heard and dismissed by
learned District Judge-4, Beed on 08.12.2017. Hence, this second
appeal.
2. Heard learned Advocate Mr. B. R. Waramaa for the appellant and
learned Advocate Mr. A. M. Gholap for respondent Nos.1 to 3.
sa-160-2018 with CA.odt
3. It has been vehemently submitted on behalf of the appellant -
original plaintiff that both the Courts below have not appreciated the
evidence properly and have not taken into consideration the law points
involved. The documentary as well as oral evidence would show the
existence of the suit plot owned by the plaintiff. One Narayan Mugaji
Hogale had purchased Plot No.2 from defendant No.3 by registered sale-
deed dated 15.06.1984. Thereafter, present plaintiff had purchased the
said plot from said Narayan Hogale on 10.04.1991. He, thereafter,
constructed house totally admeasuring 1600 square feet. The dispute
between the plaintiff and the defendant was in respect of the area
towards western side. In fact, in the sale-deed in favour of plaintiff, the
boundary towards western side has been wrongly shown as plot
belonging to defendant No.1. Thereafter, a correction deed has been
executed on 13.06.2000 by Narayan Hogale in favour of the plaintiff
correcting it as towards the western side, there is Government road. In
fact, there was no land available belonging to defendant No.3 towards
the western side of the plot. Still, she sold area admeasuring 20 x 50 sq.
feet to defendant Nos.1 and 2 by sale-deed dated 19.06.1984. It is
stated that, that sale deed is illegal and, therefore, the plaintiff filed suit
for declaration and removal of encroachment made by defendant Nos.1
and 2. If we consider the sale-deed executed by defendant No.3 in
sa-160-2018 with CA.odt
favour of Narayan Hogale, which was prior in time to the sale-deed
executed by defendant No.3 in favour of defendant Nos.1 and 2, then it
can be seen that there is absolutely no land left towards the western
boundary. It was stated that there is Government land. But taking
disadvantage of the fact, it appears that the said sale-deed was executed
by defendant No.3 in favour of defendant Nos.1 and 2 and then there
was a mistake on the part of the predecessor of the plaintiff in the sale
deed executed in favour of plaintiff to mention the plot of defendant
No.1 towards the western side. Both the Courts have not considered the
map produced by the plaintiff, which he had submitted to the Municipal
authorities prior to the construction. The plaintiff had examined his
predecessor on the point that, in fact, there was no area left towards
western side belonging to defendant No.3, which she could have sold in
favour of defendant Nos.1 and 2. Therefore, substantial questions of
law are arising in this case as both the Courts below have taken perverse
approach.
4. Per contra, the learned Advocate appearing for respondent Nos.1
and 3 relied on the reasons given by both the Courts below while
dismissing the suit and appeal.
5. At the outset, this Court cannot go into the questions of facts
much in detail unless it is shown that the approach of the Courts below
sa-160-2018 with CA.odt
was perverse on the face of the record. Here, it is to be noted that the
plaintiff's predecessor purchased the suit plot from defendant No.3 on
15.06.1984. Thereafter, immediately on 18.06.1984, defendant Nos.1
and 2 had purchased the plot from defendant No.3. Though the
plaintiff's predecessor has been examined to prove that he sold the plot
which he had purchased from defendant No.3 to plaintiff on
10.04.1991, it is the fact on record that the correction deed had taken
place on 13.06.2000. That means, there was about 9 years of gap in
between the sale-deed and the correction deed. Why it took so much of
time to get the correction effected is a question. It appears to be not
answered either by the plaintiff or his predecessor. Further, it can also
be seen that the predecessor is not explaining as to why he had not
taken any action to challenge the sale-deed between defendant Nos.1
and 2 with defendant No.3. He doesn't come with the case that he was
not aware about the said transaction. Now, as regards the facts in the
case are concerned, both the Courts below have held that plaintiff has
failed to prove his title and possession over the suit property i.e. the
disputed area, on which it is stated by the plaintiff that there is
encroachment by defendant Nos.1 and 2. Further, both the Courts have
held that plaintiff has failed to prove that defendant Nos.1 and 2 have
unauthorizedly and illegally committed encroachment to the extent of
sa-160-2018 with CA.odt
20 x 50 sq. feet area. Both the Courts have also held that in spite of
opportunity was given to the plaintiff to produce the sanctioned lay out
of the property belonging to defendant No.3, he has not produced it on
record. That document, in fact, would have shown whether the plot
which was sold to defendant Nos.1 and 2 was in existence or not.
Plaintiff could have made that document available though he may not be
the ordinary custodian of that property. Both the Courts below,
therefore, rightly drawn the adverse inference against the plaintiff as he
has failed to produce best possible evidence to show the existence of the
disputed area. There was also no attempt on his part to get the land
measured by appropriate authority. Therefore, when so many lacunas
have been left by the plaintiff to prove his case, then both the Courts
below appear to be justified in dismissing the suit as well as appeal. No
substantial question of law as contemplated under Section 100 of the
Code of Civil Procedure is arising in this case to admit the second
appeal. The second appeal deserves to be dismissed at the threshold.
Accordingly, it is dismissed.
6. Pending civil application stands disposed of.
[SMT. VIBHA KANKANWADI, J.]
scm
