Vitthal Lahanu Bhutkar vs Bapurao Baburao Bhutkar And ...
2021 Latest Caselaw 12833 Bom

                                                           908-ca-2480-2018 with sast.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                    908 CIVIL APPLICATION NO.2480 OF 2018
                 IN SAST/42014/2017 WITH SAST/42014/2017

                        VITTHAL LAHANU BHUTKAR
                                  VERSUS
               BAPURAO BABURAO BHUTKAR AND OTHERS
                                     ...
                 Advocate for Applicant : Mr. Shaikh Shoyab
          Advocate for Respondent No.1 : Mr. Jayabhar Dattatraya R.
                                     ...

                                   CORAM        : SMT. VIBHA KANKANWADI, J.

                                   DATE         : 08.09.2021

ORDER :-


.        Present application has been filed for getting the delay of 1040

days condoned in filing second appeal. Present applicant is original

defendant No.1. Present respondent No.1 is the original plaintiff, who

had filed Regular Civil Suit No.10 of 2005 before learned Civil Judge

Senior Division, Shrigonda, Dist. Ahmednagar for declaration and

permanent injunction. The said suit came to be partly decreed. The

relief of injunction was granted and defendant Nos.1, 3 and 4 were

restrained from taking possession of the suit property from the

possession of the plaintiff till due procedure of law is adopted. The

relief of declaration of ownership claimed by plaintiff was rejected. The

plaintiff was claiming ownership over the agricultural land Gut No.43 to

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the extent of 5 Gunthas from northern side. The judgment and decree

passed by the learned Trial Judge was challenged by the present

appellant by filing Regular Civil Appeal No.272 of 2011 before the

learned Adhoc District Judge-4, Ahmednagar and the said appeal came

to be dismissed on 14.11.2014. The appellant - applicant wants to file

second appeal, however, as aforesaid there is delay of 1040 days.

2. Heard learned Advocate Mr. Shaikh Shoyab for the applicant -

appellant and learned Advocate Mr. D. R. Jaybhar for respondent No.1.

3. It has been submitted on behalf of the applicant that the applicant

is old age person residing with his wife. He has only half Acre of land

and no other source of income. Due to the old age of himself as well as

his wife, he is required to incur huge medical expenses from time to

time. He resides in remote rural area. He also contends that there was

no telephonic communication between him and the learned Advocate

who was representing him before the first Appellate Court. Learned

Advocate representing him had given him understanding that his

presence is not required on each and every date in the appeal and he

would communicate regarding the same as and when need arises. There

was no communication by his Advocate, but then he went to make

inquiry about the progress in the appeal in the month of July, he came to

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know that the matter has been decided long back. The delay is

unintentional. His vital rights are involved and, therefore, he prays for

the condonation of delay.

4. Though the learned Advocate appearing for respondent No.1

strongly opposed the application, yet taking liberal view, application

stands allowed and disposed of.

5. With consent of both the parties, the Second Appeal is taken for

admission immediately. Submissions on behalf of both sides have been

heard.

6. It has been submitted on behalf of the appellant that the Courts

below have not considered the evidence and the law points involved

properly. Only on the basis of some decision by the revenue officers, the

Courts below have come to the conclusion that the plaintiff was found

possessing the suit land and, therefore, they have protected his

possession. When the plaintiff could not have got any title to the

property and he has not proved it as it has been so held by both the

Courts below, it ought not to have been held by both the Courts below

that the plaintiff is in possession. Learned Advocate appearing for the

appellant has taken this Court through the judgment of both the Courts

below and then submitted that since the substantial questions of law are

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arising in this case, the second appeal deserves to be admitted. He

submitted that some erroneous interpretation of the judgment and

orders passed by the revenue authorities cannot give right in whatsoever

manner in favour of the original plaintiff.

7. Per contra, the learned Advocate appearing for respondent No.1

supported the reasons given by both the Courts below and submitted

that no substantial questions of law are arising in this case.

8. At the outset, it is to be noted that though the plaintiff was

claiming to be the owner of the property, the learned Trial Judge has

specifically held that plaintiff has not proved that he is the owner of the

property. However, the said finding has been upheld by the learned first

Appellate Court. Further, the learned Trial Judge has held on the basis

of evidence adduced that the plaintiff has proved that he possesses 5

Gunthas land from the northern side of Gut No.43. Both the Courts

below have held that the said possession of the plaintiff is unauthorized.

It appears that both the Courts intended to say that the plaintiff is in

settled possession of the suit property and, therefore, his said possession

needs to be protected till due procedure is adopted. It appears that both

the Courts below have taken help of the ratio laid down in Rame Gowda

(D) By Lrs vs. M. Varadappa Naidu (D) By Lrs. & Anr, (2004) 1 SCC 769.

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As regards point of possession is concerned, it has been arrived at by

both the Courts below after considering the oral as well as documentary

evidence. Though there appears to be the revenue decisions and

according to the appellant those decisions are in his favour, yet, it

appears that in those decisions, it has been held by the revenue

authorities that the plaintiff is in possession of the said property. At the

cost of repetition, it can be said that whether the said possession is legal

or illegal (unauthorized), yet when the Courts below come to the

conclusion that it is settled possession as contemplated in the decision in

Rame Gowda's case (Supra), then that needs to be protected and it

cannot be said that the said finding regarding possession of the plaintiff

over the suit land has been arrived at by both the Courts below due to

the erroneous interpretation of the decisions given by the revenue

authorities. If there was a scope for the present appellant to challenge

the said revenue decisions, he ought to have taken that recourse.

9. As regards the finding regarding possession is concerned, it is a

question of fact, which cannot be gone into by this Court wherein in

view of Section 100 of Code of Civil Procedure only the substantial

questions of law are required to be considered. In Ramathal Vs.

Maruthathal and Ors., [(2018) 18 SCC 303], wherein the issue

considered was as to whether the High Court was wrong in interfering

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with the question of fact in the Second Appeal. The Hon'ble Supreme

Court indicated in the said case that the restraint against interference is

not an absolute rule but when there is perversity in findings of the Court

which are not based on any material or when appreciation of evidence

suffers from material irregularity, the High Court would be entitled to

interfere on a question of fact as well. Further. in P. Velayudhan and

Ors. Vs. KurunGot Imbichia Moidu's son Ayammad and Ors., [(1990)

Supp. SCC 9] and Tapas Kumar Samanta Vs. Sarbani Sen and Anr.

[(2015) 12 SCC 523], it has been held that, "In a Second Appeal the

High Court would not be justified in interfering with the finding of fact

made by the first Appellate Court since such finding rendered would be

based on evidence." This position has been reiterated by the Hon'ble

Supreme Court in Balasubramaniam vs. M. Arokiasamy (Dead) Thr. Lrs. ,

Civil Appeal No.2066 of 2012 decided on 02.09.2021. Under such

circumstance, taking into consideration the fact that both the Courts

below have arrived at a finding of fact that the plaintiff has proved his

possession over the suit land and it is also stated that the said possession

is unauthorized, the protection, that is granted to the plaintiff is till the

due procedure is adopted. No substantial questions of law as

contemplated under Section 100 of the Code of Civil Procedure arises in

this case. Therefore, in view of Kirpa Ram (deceased) through Lrs. and

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others Vs. Surendra Deo Gaur and others, [2021 (3) Mh.L.J. 250],

second appeal stands dismissed at the admission stage.

[SMT. VIBHA KANKANWADI, J.]

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