Chataru Natha Khandagle vs Bhagubai Bhaurao Bhandre And ...
2021 Latest Caselaw 12923 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      SECOND APPEAL NO.378 OF 2018
                                  WITH
                    CIVIL APPLICATION NO.6829 OF 2018
                             IN SA/378/2018

                        CHATARU NATHA KHANDAGLE
                                    VERSUS
                 BHAGUBAI BHAURAO BHANDRE AND OTHERS
                                      .....
                Advocate for Appellant/Applicant : Mr. N. S. Jaju
                  Advocate for Respondent : Mr. Y. V. Kakade
                                      .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    09-09-2021

ORDER :

1. Present appeal has been filed by the original plaintiff challenging

the Judgment and decree passed in Regular Civil Appeal No.66 of

2014, by learned District Judge-13, Ahmednagar, on 11-10-2017,

thereby allowing the appeal filed by the present respondent and

thereby setting aside the Judgment and decree passed in Regular Civil

Suit No.186 of 2011 by learned Civil Judge, Junior Division, Shevgaon,

dated 27-01-2014 whereby suit filed by the present appellant for

perpetual injunction was decreed.

2. Heard learned Advocate Mr. N. S. Jaju for appellant and learned

Advocate Mr. Y. V. Kakade for respondents No.1 to 4. In order to cut

2 SA 378-2018, CA 6829-2018

short, it is stated that both of them have made submissions in

support of their respective contentions.

3. At the outset, as aforesaid the plaintiff had filed the said suit

for perpetual injunction. It was contended in the plaint that initially

one Maruti Kisan was the owner of suit property i.e. agricultural land

bearing Gut No.178 admeasuring Western side 2 H 60 R situated at

village Kolgaon Tq. Shevgaon Dist. Ahmednagar. Maruti died in the

year 1982 leaving behind son Rambhau. Rambhau also died 20

years prior to the suit. Defendant No.5 Sitabai is the widow of

Rambhau. Santosh and Ravi are the sons of Rambhau. Bhagubai,

Yashoda and Laxmibai were the sisters of Rambhau. Out of them

Laxmibai has expired. It was stated that Maruti was the relative of

the defendants. In fact, about 40 years prior to the suit, Maruti had

left Kolgaon along with his relatives. He used to work at Nashik as

well as Rahuri. Even his son Rambhau did not return to village

during his lifetime. Plaintiff contended that he is the owner of Gut

No.201 adjacent to the suit property. Since Maruti had left the

village, the plaintiff started cultivating the said land and since last 40

years he is cultivating it without any interruption even by the legal

representatives of Maruti. According to the plaintiff, defendants

3 SA 378-2018, CA 6829-2018

have no concern with the suit property. Plaintiff says that he met

with defendants in Tahsil Office, Shevgaon on 01-06-2011 and came

to know about the intention of the defendants to sell out the

property. According to the plaintiff, he tried to convince defendants

not to sell the property, however, defendants were not in mood to

listen and, therefore, he filed the suit.

4. Defendants appeared and denied all the contents of the plaint

and even the description of the property was challenged. It was

stated that the suit property was class-II occupancy land. After

death of Maruti, name of his legal representatives came to be

recorded in 7/12 extract and then they were cultivating the said

land. It was their contention that they were getting it cultivated

through somebody. When they are the owners and possessors of

the property, they cannot be injuncted.

5. As aforesaid, the suit came to be decreed, however, in the

appeal the said decree is reversed. Hence, this second appeal.

6. Plaintiff has not claimed that he is the owner of the suit

property. It is not his case nor a declaration was sought by him that

he has become owner by adverse possession. It appears from the

4 SA 378-2018, CA 6829-2018

record that the plaintiff has not given the nature of his alleged

possession over the suit property. At the cost of repetition, it can be

said that plaintiff has not come with a case that he got the

possession of the suit property unauthorisedly or illegally, yet since

it continued for more than 12 years, he has now become the owner

and, therefore, his possession needs to be protected. When he has

not explained the nature of his possession, it cannot be said that his

alleged possession is legal. The defendants had challenged the

nature of the possession of the plaintiff over the suit property, so

also they claimed the ownership. Under such circumstances, in view

of the decision in Anathula Sudhakar vs. P. Buchi Reddy (dead)

(2008) 4 SCC 594, which has been reiterated recently by Hon'ble

Apex Court in T. V. Ramakrishna Reddy vs. M. Mallappa, reported

in LL 2021 SC 423, a suit simpliciter for permanent injunction

without claiming declaration of title is maintainable only in cases

where the plaintiff's title is not in dispute or under a cloud.

7. Learned Advocate appearing for the appellant relied on Rame

Gowda (D) by L.Rs. vs. M. Varadappa Naidu (D) by L.Rs. and

another, reported in AIR 2004 Supreme Court 4609, wherein it has

been held that, "a person in 'settled possession' needs to be

5 SA 378-2018, CA 6829-2018

protected till proper procedure of law to evict him is adopted." It is

to be noted that the Trial Court in this case held that the plaintiff has

proved that he is in settled possession of the suit property, however,

it is to be noted that the First Appellate Court has taken the account

of documentary as well as oral evidence and come to the conclusion

that the plaintiff is not at all in possession. This Court cannot go

much into the facts of the case unless it is shown that the

assessment thereof by the Courts below is perverse. The First

Appellate Court after taking oral evidence into account observed that

the witnesses examined by the plaintiff are absolutely not reliable.

He has observed that the witnesses avoided the answers to the

questions put by learned Advocate for the defendants and most part

of their deposition is recorded in question and answer form. Though

P.W.2 Annasaheb supported the plaintiff in examination-in-chief, in

the cross-examination he claimed ignorance about the ownership

over the suit land. He went on to say that there are two plaintiffs to

the case, however, there is only one plaintiff. It has been concluded

that he has no knowledge about the facts of the case, yet he tried to

oblige the plaintiff. The plaintiff's own testimony has also been

discarded by the First Appellate Court. Thereafter, the First

Appellate Court has taken note of the 7/12 extracts, Exhibits 5 and

6 SA 378-2018, CA 6829-2018

27 produced by the plaintiff, however, it is noted by him that there

is manipulation. It has been noted that the son of the plaintiff was

serving as 'Kotwal' and it has been concluded on the basis of the

evidence that with the help of the said son, the manipulation has

been done in the revenue records. The parties have fought before

the revenue authorities also in respect of the mutation entries.

Ultimately, the decision by Sub-Divisional Officer had set aside the

order of Tahsildar regarding dismissal of Kotwal who was the son of

the plaintiff but had not set aside the order of Tahsildar by which on

inquiry he had held that the name of plaintiff entered in cultivation

column without any order or inquiry and there is no evidence

regarding plaintiff's possession. Ultimately, the name of the plaintiff

came to be deleted from the cultivation column. Admittedly,

plaintiff's name never appeared in the ownership column of the 7/12

extract of the suit land. Therefore, on the basis of these entries, it

was considered by the First Appellate Court that the plaintiff is not in

"settled possession". Therefore, the ratio laid down in Anathula

Sudhakar vs. P. Buchi Reddy (dead) (2008) 4 SCC 594 will not be

applicable to the facts of the case. When it has been held that the

plaintiff is not in possession, question of grant of injunction does not

arise. The suit itself is not maintainable in view of the aforesaid

7 SA 378-2018, CA 6829-2018

discussion on the basis of the decisions in Anathula Sudhakar

(Supra) and T. V. Ramakrishna Reddy vs. M. Mallappa (Supra).

8. No substantial questions of law as contemplated under Section

100 of the Code of Civil Procedure are arising in this case requiring

admission of the second appeal. Hence, the second appeal stands

dismissed. Pending Civil application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-