Atmaram Ashruba Sarkate And Ors vs Vitthal Gulabrao Gaikwad
2021 Latest Caselaw 12928 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                     923 SECOND APPEAL NO.318 OF 2021
                                  WITH
                       CA/7886/2021 IN SA/318/2021

                   ATMARAM ASHRUBA SARKATE AND ORS
                                   VERSUS
                       VITTHAL GULABRAO GAIKWAD
                                       ...
               Advocate for Appellants : Mr. Palodkar Devdatt P.
                Advocate for Respondent : Mr.Munde Suresh W.
                                       ...

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

ORDER :

1. Present appeal has been filed by the original defendants to

challenge the Judgment and decree passed in Regular civil Appeal

No.111 of 2015 passed by learned District Judge-4, Jalna on 05-03-

2021 whereby the appeal filed by the present respondent/original

plaintiff came to be allowed. The First Appellate Court has reversed

the decree that was passed by the learned Trial Judge i.e. Civil Judge

Junior Division, Mantha Tq. Mantha Dist.Jalna in Regular Civil Suit

No.57 of 2012 on 30-07-2015.

2. The present respondent/original plaintiff filed the said suit for

perpetual injunction which came to be dismissed. The plaintiff was

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contending that he is the owner of land admeasuring 84 R Gut

No.219 situated at village Talni Tq.Mantha Dist.Jalna which he had

purchased from one Suresh Shankarrao Bhaskar on 10-01-1989.

Defendants No.1 to 3 are the adjacent land holders. Land of

defendants No.1 and 3 is situated towards Eastern side and the land

of defendant No.2 is towards Northern side. It was contended that

there is a common bandh (boundary) to their lands. According to

the plaintiff, there was obstruction to his possession over the suit

land by the defendants on 25-07-2012 when they have tried to

demolish the common bandh. Hence, he filed the suit.

3. Defendants No.1 to 3 resisted the claim by filing written

statement. They denied the averments about act of trying to

demolish the common bandh. In fact, they contended that the

plaintiff has encroached on 16 R area of Gut No.187 of defendant

No.1 and in fact defendant No.1 got that measurement done on 25-

07-2012. On that day, there was marking of his boundaries.

4. The learned Trial Judge held that the plaintiff has partly proved

that he is in possession of the suit property, however, it was held

that the plaintiff has failed to prove that the defendants are

obstructing his possession and, therefore, suit was dismissed. He

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challenged the said Judgment and decree as aforesaid in Regular

Civil Appeal No.111 of 2015. The learned First Appellate Court held

that the plaintiff has proved his possession over the suit land. He

has also proved that the defendants are obstructing his possession

over the suit property and, therefore, by reversing the decree

passed by the Trial Judge, the appeal was allowed and the suit came

to be decreed.

5. Heard learned Advocate Mr. D. P. Palodkar for appellants and

learned Advocate Mr. S. W. Munde for respondent.

6. It has been submitted on behalf of the appellants that both the

Courts below have not exercised their powers under Order 26 Rule 9

of the Code of civil Procedure to get a admitted map on record,

when the defendants had come with a case that there is

encroachment by the plaintiff to the extent of 16 R on the land of

defendant No.1. He placed his reliance on the decisions of this Court

in Raghunath Kashinath Chavan vs. Sakharam Maroti Chavan and

Another, reported in 2019(3) Mh.L.J. 183, and Sudhakar s/o

Baburao Kulkarni vs. Gorabai w/o Thansing Marag and others,

reported in 2019 (6) Mh.L.J. 287, to support his contention that such

measurement ought to have been done. Further, he submitted that

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the admissions given by the plaintiff and his witnesses in his cross-

examination have not been considered. If those admissions are

considered then it can be seen that the cause of action itself was not

proved. The plaintiff had admitted that since defendant No.1 got his

land measured on 25-07-2012, he was under apprehension and then

it led to the filing of the suit. He also admitted that in the said

measurement, the Taluka Inspector of Land Records has reported

that plaintiff has made encroachment to the extent of 16 R land of

the defendant. He also admitted that after 25-07-2012, the

defendants have not demolished the common bandh and voluntarily

he had stated that the reference in respect of demolition of bandh in

his suit is not correct. The learned First Appellate Court failed to

take into consideration these admissions which would definitely show

that there was absolutely no cause of action for the plaintiff to file

the suit, yet taking a contrary view which can be said to be perverse

to the record of the suit, slam the order of injunction against the

defendants. Therefore, substantial questions of law are arising in

this case.

7. Per contra, the learned Advocate for respondent supported the

reasons given by the First Appellate Court and submitted that the

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alleged admissions by the plaintiff cannot be considered the way the

appellant intends to interpret. In fact, though contention was raised

by the defendants that the plaintiff has made encroachment to the

extent of 16 R land, yet they had not examined the Taluka Inspector

of Land Records or the Cadastral Surveyor who measured the land.

When the possession of the plaintiff over 84 R land was proved and

it was on the basis of the sale deed, it has been protected by

allowing the appeal and decree in the suit. No substantial questions

of law as contemplated under Section 100 of the Code of Civil

Procedure are arising in this case.

8. At the outset, note of the decision in Balasubramanian & Anr.

vs. M. Arockiasamy (dead) Through LRs. (Civil Appeal No.2066 of

2012, decided by Hon'ble Supreme Court on 2 nd September 2021) is

required to be taken a note of, wherein it has been observed in

paragraph No.15 that :-

"In view of the above, although the counsel for the appellant may be technically correct in his submission that the High Court erred in not clearly answering the question of law framed by it under Section 100 of the CPC, the High Court was still within its jurisdiction to determine whether the reading of the evidence on record by one of the Courts below was perverse.

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Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated."

Therefore, the cursory reference to the facts and the interpretation

of the evidence is definitely required to be considered here to come

to a conclusion that whether the Court, as tried to be submitted on

behalf of the appellant, had perverse approach towards the

evidence.

9. The suit was for injunction and admittedly in the written

statement there was counter claim for removal of encroachment and

possession. Both the Courts below were right in not exercising their

powers under Order 26 Rule 9 of the Code of Civil Procedure. The

fact in issue was restricted to whether plaintiff proves his possession

over 84 R land, as claimed by him. It could not have been beyond

his 84 R land on which the boundaries were described in his sale

deed which was produced on record. As regard the 16 R land which

is stated to be in possession of the plaintiff belonging to defendant

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No.1, it being not the subject matter of the suit, question of

exercising powers under Order 26 Rule 9 of the Code of Civil

Procedure, does not arise. The cases cited by the learned Advocate

for the appellants are on different points and in those cases the suit

was for removal of encroachment and for possession. Therefore, no

substantial question of law on this point, is arising in this case.

10. Much has been harped as regards the admission given by the

plaintiff in his cross-examination. At the outset, it can be said that

even the apprehension can be taken as a cause of action. It is not

even necessary that it should be coupled with actual act of

demolition of the bandh in this case. Therefore, defendants/present

appellants cannot get advantage of the voluntary statement of the

plaintiff that the contention in his plaint regarding demolition of

bandh is not correct. Further, if we see the plaint, it has been stated

that defendants No.1 to 3 started act of demolition of the common

bandh on 25-07-2013. Starting odes not mean that it has been

completed. No question to that effect as to how much length of

bandh was demolished, has not been asked in the course. Now as

regards encroachment is concerned, as aforesaid, the defendants

have not examined Cadastral Surveyor. Though the plaintiff admits

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that in the Taluka Inspector of Land Records measurement he has

been shown to have encroached on 16 R land of defendants, this

cannot be taken as an admission of the actual fact about the

encroachment. There was no straight question that such

encroachment has been made by him. Whatever has been shown by

the Taluka Inspector of Land Records in his report, has been

admitted by him in his cross-examination. However, we cannot also

forget another admission by the plaintiff that he has sold 1 R land

from the encroached portion to one Baburao Rathod. In fact, when

that has been sold, has not been asked nor any documentary

evidence to support that fact appears to have been produced on

record. Further at the outset, it can also be seen that in the written

statement it appears that the defendants have stated that the

encroachment of 16 R land is from the land of defendant No.1 i.e.

Gut No.187. As per the plaint, that area is towards the Eastern side

of the suit property. The defendants have not given the

approximate year as to when the plaintiff took possession of that 16

R land. Till the matter was before the First Appellate Court, it

appears that no suit was filed by the defendants to seek possession

of that land and this fact has been considered by the First Appellate

Court.

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11. As regards the cause of action is concerned, as aforesaid, even

the apprehension in the mind of plaintiff is sufficient. That

apprehension appears to be justifiable as appropriate reasoning have

been given by the First Appellate Court to come to a conclusion that

the said apprehension or cause of action has been proved. The

defendants are contending that they never obstructed to the plaintiff

in respect of his 84 R land. Statement to that effect has also been

made by the defendants witness and even while making submissions

before this Court, the said fact has been reiterated. We are require

to take into consideration the position on the date of the suit in co-

relation to the cause of action shown in the plaint. He has stated

that the defendants used to say to him that he has made

encroachment on their land and then according to him the

defendants started to demolish the common bandh on 25-07-2012.

Therefore, that apprehension was sufficient for him to file the suit

and it has been taken by the First Appellate Court while assessing

the evidence as the obstruction to the possession of the plaintiff over

the suit land i.e. 84 R land.

12. As aforesaid, in Balasubramanian & Anr vs. M. Arockiasamy

(Supra) the aforesaid observations have been made and, therefore,

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this Court has considered the facts just to ensure that the conclusion

of the First Appellate Court is whether perverse or not. In Ramathal

vs. Maruthathal & Ors., reported in (2018) 18 SCC 303, the Hon'ble

Supreme Court has held that :-

"In such a case where such concurrent factual finding was rendered by two Courts and in such situation, it has been interfered with by the High Court in second appeal, the Hon'ble Supreme Court was of the view that the interference was not justified."

However, in that case itself Hon'ble Supreme Court indicated that

such restraint against interference is not absolute rule but when

there is perversity in findings of the Court which are not based on

any material or when apprehension of evidence suffers from material

irregularly the High Court would be entitled to interfere on a

question of fact as well. Therefore, reiterating the fact that this

Court has made detailed discussion on the facts also just to arrive at

a conclusion as to whether the First Appellate Court has taken a

perverse view. But the reasons are clear and it is based on the facts

and the evidence on record and, therefore, merely because a second

view is possible, this Court cannot go into that aspect. Reliance can

be placed on the decision in P. Velayudhan & Ors. vs. Kurungot

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Imbichia Moidu's son Ayammad & Ors. Reported in (1990) Supp.

SCC 9 and Tapas Kumar Samanta vs. Sarbani Sen & Anr., reported

in (2015) 12 SCC 523, wherein 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."

13. The proposed substantial questions of law as stated in the

appeal memo are not arising in view of the above said discussion

and, therefore, in view of Kirpa Ram (since deceased through L.Rs.)

and Others vs. Surendra Deo Gaur and Others, reported in 2021 (3)

Mh.L.J. 250, the second appeal stands dismissed. The pending civil

application also stands dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-