Bombay High Court
Ravindra Bhimashankar Dahale And ... vs Kachardas Shriram Dhoot And Ors on 13 April, 2022
Bench: Mangesh S. Patil
Judg-SA-255-2000.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 255 OF 2000
WITH
CIVIL APPLICATION NO. 1467 OF 2001
IN SA/255/2000
1. Revindra s/o Bhimashankar Dahale, ]
Age : 45 Years, Occu. Business, ]
R/o : Shevgaon, Tq. Shevgaon, ]
District : Ahmednagar ] Original Defendant No.1-b
2. Mrs. Sundrabai Ankush Deode, ]
Age : 35 Years, Occu. Household, ]
And Agriculture, ]
R/o Shestri Nagar, Shevgaon, ]
Tq. Shevgaon, Dist. Ahmednagar ] ... Appellants.
Versus
1. Kachardas S/o Shivram Dhoot, ]
Age : 62 Years, Occu. : Agriculture, ]
R/o Shevgaon, Taluka - Shevgaon, ]
Dist. Ahmednagar ] Original Plaintiff
Died through LR'S
1-A. Vijaykumar S/o Kachardas Dhoot ]
Age : 47 Years, Occu. : Business ]
R/o Marwadi Galli, Near Balaji ]
Mandir, at Post Shevgaon ]
Tq. Shevgaon, District Ahmednagar. ]
Died through LR'S ]
1-A(i) Savita w/o Vijaykumar Dhoot, ]
Age : 43 Years, Occu. Household, ]
R/o Marwadi Galli, Near Balaji ]
Mandir, At Post Shevgaon, Tq. ]
Shevgaon, Dist. Ahmednagar ]
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Judg-SA-255-2000.odt
1-A(ii) Vaishnavi d/o Vijaykumar Dhoot, ]
Age : 14 Years, Occu. Household, ]
R/o. As above. ]
1-A(iii) Viraj s/o Vijaykumar Dhoot, ]
Age : 12 years, Occu. Household, ]
R/o As above. ]
(1-A (ii) & 1-A (iii) are minors ]
u/g of their mother 1-A (i)) ]
1-B. Sow Alaknanda w/o Balaprasad Kabra ]
Age : 58 years, Occu. : Household ]
R/o 151, Priyadarshani Colony ]
Sambhaji Nagar, Jalna ]
1-C. Sow Sadhana w/o Vitthaldas Bhattad ]
Age : 55 Years, Occu. : Household ]
R/o Zenith Staff Colony, at post ]
Khopoli, Tq. Khalapur, District Raigad ]
1-D. Sow Kalpana w/o Deepak Kasat ]
Age : 50 Years, Occu. : Household, ]
R/o Manish Nagar, Near Bagadiya Hotel, ]
Jalna, District Jalna. ]
2. Bhimashankar S/o Laxman Dahale ]
(Deceased) through by his LR's., ]
2-A. Shashikant Bhimshankar Dahale, ]
(Deceased) through his LR's., ]
i) Smt. Sunanda Shashikant Dehale, ]
Age : 51 Years, Occu. : Household, ]
ii) Bharti Shashikant Dahale, ]
Age : 48 years, Occu. : Occu. : Household, ]
Occu. : Household, ]
iii) Dharti Shashikant Dehale, ]
Aged : Major, Occu. : Household, ]
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Judg-SA-255-2000.odt
2-B. Rekha Bhimshankar Dahale, ]
Age : Major, Occu. Household, ]
2-C. Smt. Kusumbai Bhimshankar Dahale ]
Age : Major, Occu. Household, ]
All resident of Main Road, ]
Shevgaon, Taluka - Shevgaon, ]
District - Ahmednagar. ]
(2-D) Sow. Nalini Vaijayrao Udavant, ]
Age : Major, Occu. : Household, ]
R/o Chal No.3, Ulhasnagar, ]
Kurla Camp, (Dismissed vide Registrar's
at Ulhasnagar, order dated 21.06.2006)
District - Thane. ]
2-E. Sow. Chhaya Satish Shahane, ]
Age : Major, Occu. : Household, ]
R/o C/o Pandurang Seth Shahane, ]
Wasko Tourist Hotel, Nashik Road, Nashik. ] ... Respondents.
(Original Defendants)
...
Mr. N. K. Kakade, Advocate for Appellants.
Mr. C. K. Shinde, Advocate for Respondent Nos.1-A(i) to 1-A(iii) & 1-B to 1-D
...
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 1 APRIL 2022.
PRONOUNCED ON : 13 APRIL 2022.
JUDGMENT :
1. This is a second appeal by the original defendant no.1-b from a
suit filed by the original plaintiff Kachardas. Respondent Nos.1-A to 1D are his
legal representatives. Respondent Nos.2 to 2-E are co-defendants.
Judg-SA-255-2000.odt
2. The second appeal has been admitted by the order dated 29
August 2000 mentioning that Ground nos. (IX) and (X) from the appeal memo
would be the substantial questions of law, which read as under :-
"(IX) That, P.W.S. who is Consolidation Officer examined by the
plaintiff, he got measured the suit plot on dated
18/08/1990 which is at Exhibit 103/A. He measured the
suit plot on the basis of earlier measurement done by the
P.W. 4. He stated that, Survey No.121 is towards western
side of Survey No.122 and there is boundary mark in
between the 2 Survey Numbers. If it is so, then in plaint,
this description has not given by the plaintiffs. This witness
preferred Exhibit 104 of measurement on the basis of
earlier measurement. He admitted that, he has not got
measured entire Survey No. 121 and 122. He further
admitted that, surrounding CTS No. 2487 to 2490, there
were constructed houses. He further admitted that at the
time of measurement, he was unable to ascertain the
boundary marks, of Survey Number 121 and 122. If it is so
then, whether the measurement done by this witnesses is
true and correct, and whether really he made a
measurement in respect of encroached area?
(X) That, when this witness, P.W. 5 admitted that, after
verifying CTS plan and CTS record (Exhibit 104) in which
boundaries are shown on that basis he filed a report of
measurement, whether this measurement is admissible in
the eye of law ?"
Judg-SA-255-2000.odt
3. In view of the clumsy wordings, I have reformulated the
substantial questions and have heard the learned advocates of both the sides
on following points:-
(I) Whether the lower appellate court has grossly erred in
reaching the conclusions on the basis of the report of the
Surveyor who measured the properties that the original
defendants made encroachment over the plaintiff's
property?
(II) Whether after filing of the suit a city survey had taken
place and still without there being any amendment in the
plaint, the lower appellate court was legally correct in
decreeing the suit with reference to the old survey
number?
4. The facts as are necessary leading up to the filing of the second
appeal are as under :-
(I) The original plaintiff Kachardas averred that he had purchased a
portion admeasuring 4 gunthas from the land survey no.121 totally
admeasuring 14 Hector 35 Are of village Shevgaon, Tq. Shevgaon,
Dist.Ahmednagar, admeasuring North-South 132 ft. and East-West 33 ft. He
then averred that the original defendants entered into possession of a part of
the suit property admeasuring South-North 132 ft. and East-West 16. 1/2 ft.
bound by his remaining plot to the East, remaining portion from survey
Judg-SA-255-2000.odt
no.121 to the South, Shri Sant Gadge Maharaj Chatralaya to the West and
public road to the North. He contended that he had purchased it under the
sale deed dated 11 December 1959 and since thereafter he was in exclusive
possession of the entire property purchased by him. He averred that about a
year and half prior to the filing of the suit the defendants encroached over that
portion and erected some construction. He described this 132 ft. by 16. 1/2 ft.
portion as the suit property and claimed its vacant possession.
(II) The original defendant Bhimashankar, who was the sole
defendant and was the predecessor of the appellant and the rest of the
respondents, contested the suit by his written statement. He denied about
plaintiff having purchased any property from survey no. 121 and he having
encroached over the suit property. He denied to have encroached over any
property or to have erected illegal construction over the suit property. He also
contended that the suit was barred by limitation. Lastly, he contended that the
property in his possession was originally purchased by Ashru Abaji Sapkal who
himself had carried out construction over the suit property and he has
purchased it from that Ashru Abaji Sapkal along with the construction and he
is in legal possession of the suit property.
(III) During pendency of the suit, the original defendant Bhimashankar
died and his legal representative's i.e. the appellant and the rest of the
respondents herein were brought on record.
Judg-SA-255-2000.odt
(IV) The trial court dismissed the suit in spite of holding that the
plaintiff had proved his title to the suit property and the description given by
him was correct. It concluded that the plaintiff had failed to prove about the
defendant having illegally encroached over the suit property and that the suit
was barred by limitation. It also concluded that the defendant was a bona fide
purchaser for value without notice.
5. Being aggrieved and dissatisfied by the dismissal of the suit
plaintiff Kachardas filed an appeal before the district court, which allowed the
appeal, quashed and set aside the judgment and order of the trial court and
decreed the suit. Hence this appeal by one of the heirs of the original
defendant Bhimashankar.
6. The learned advocate Mr. Kakade for the appellant would
vehemently submit that the original plaintiff had miserably failed to prove the
description of the property purchased by him and even there being any
encroachment. Inspite of repeated measurements carried out by different
surveyors, the encroachment was not duly proved. The original defendant's
property situates in land survey no. 122, whereas, the property purchased by
the original plaintiff is from survey no.121. The measurement carried out by
the Surveyor R. S. Joshi (PW-4) correctly demonstrated that a road is in
existence between these two survey numbers and if that be so, it was in
Judg-SA-255-2000.odt
probable for the defendant to have encroached over the suit property. Even
that surveyor did not distinctly demonstrate different sub-divisions from
survey no. 121, when there is no reference in the plaint about the city survey
numbers of the plaintiff's property. Admittedly, a city survey was undertaken
and all the properties were allotted city survey number and it was imperative
for the plaintiff to have amended the plaint so as to indicate the city survey
number of the suit property. Mr. Ramakant Kherkar, the Consolidation Officer
(PW-5) specifically admitted this fact while proving the measurement carried
out by him as per map (Exh.104). He also submitted that this witness
admitted that survey no. 122 is to the east of survey no.121 whereas in the
boundaries mentioned in the plaintiff's sale deed, there is no such indication.
He would therefore submit that when the evidence was not concrete to
demonstrate any encroachment having been made by the original defendant
as alleged, the lower appellate court ought to have remanded the matter at the
most for undertaking further measurement. In any case, the sound reasons
given by the trial court while dismissing the suit have been unnecessarily
questioned by the lower appellate court.
7. Per contra, the learned advocate for the LR's of the original
plaintiff submits that there was no dispute about the ownership of the plaintiff
over the suit property. The proof that was necessary was in respect of alleged
encroachment. The defendant had admitted to be in possession of the
Judg-SA-255-2000.odt
property. He had not put up any counter claim. In fact, the trial court had
specifically recorded the findings in favour of the plaintiff about he being the
owner of the suit property purchased by him and even the description. Once
having reached such a conclusion, it was imperative for the trial court to have
decreed the suit on such admission itself. Since, it was a suit for possession
based on title, the trial court ought not to have dismissed the suit holding it to
be time barred, when the original defendant had not taken any plea of having
become owner by adverse possession. He would further submits that, once it
is concluded that the original plaintiff was the owner of the suit property, it
could not have dismiss the suit by holding that the defendant was a bona fide
purchaser. When it was a dispute of title, it would not have passed on to the
defendant, even if he had purchased the property bona fide. Consequently,
gross error was committed by the trial court in appreciating the nature of
dispute and non suiting the plaintiff which error has been corrected by the
lower appellate court. It concurred with the observations and the conclusions
of the trial court about the plaintiff being the owner of the suit property, albeit,
erroneously it has replied point no.1 in the negative which is apparent mistake
going by the subsequent conclusions drawn by it in the reasoning part.
8. I have carefully considered the rival submission and the papers.
Having given a thoughtful consideration, it appears that not only the parties,
there learned advocates, but even the courts below seem to have not correctly
Judg-SA-255-2000.odt
appreciated the matter in dispute. It seems that everybody has been under a
misconception about the nature of the dispute being one for removal of
encroachment. It seems that the genesis of this confusion is in use of the word
''encroachment'' as it is understood in common parallel. Going by the dispute,
in fact, it is clearly a case for possession of the suit property on the basis of
title. The word encroachment is usually used when a neighbour enters into
adjoining property and puts it to his use. This does not seem to be an indeed,
it is not a dispute in the matter in hand. It is apparent that the land survey
nos. 121 and 122 are adjacent, and though it is admitted that the property
purchased by the plaintiff is from survey no.121, whereas the one purchased
by the defendant is in survey no. 122 and from the measurement map
Exh.104, a road can be seen intervening both these survey nos., 121 lies to the
west and 122 lies to the east of this road. It, therefore, appears that going by
the factual scenario, what really the plaintiff means to say is about the original
defendant being in wrongful possession of the suit property, which is a
property nowhere adjacent to defendant's property.
9. In this regard, it is pertinent to note that it has come in evidence
that in fact the plaintiff had filed three different suits against three different
persons simultaneously, bearing R.C.S. Nos. 172 of 1971, 173 of 1971 and
174 of 1971, alleging about they having forcibly entered into three different
portions from the entire piece of land purchased by him from survey no.121
Judg-SA-255-2000.odt
under the sale deed dated 11 December 1959. All these were similar suits for
possession based on title, even though under misconception the word
'encroachment' was taken in a strict sense of an adjoining property holder
encroaching upon the property next to his. That is not the case in the matter
in hand. The plaintiff has been claiming possession of the suit property which
according to him is owned by him, but is in wrongful possession of the
defendant. Consequently, this fact needs to be borne in mind while
appreciating the matter in controversy, particularly, the stand of the defendant
and his heirs and successors.
10. When there is no dispute about the fact that the property
purchased by the defendant is from survey no. 122 and the one purchased by
the plaintiff is in survey no. 121 and when admittedly a road divides both
these properties, it was expected of the defendant to have come out with some
strong and convincing evidence as to how he has been in possession of the suit
property, which is a piece of land from a different survey number not adjacent
to his property from a different survey number.
11. Once this is understood, the matter becomes easy. There was
enough evidence before the courts below demonstrating that the suit property
is a half portion of the entire property or the plot purchased by the plaintiff
from survey no.121. There is also evidence to demonstrate that property was
subsequently allotted city survey nos. 2487, 2488, 2489 and 2490. It was also
Judg-SA-255-2000.odt
mentioned in that map (Exh. 104) that the defendant was in possession of
survey no. 2490. If such was the state of affairs, there was no alternative for
the trial court, but to decree the suit, more so having concluded that the
plaintiff had proved his title to the suit property and even its description and
further having held that the defendant was in possession of the suit property.
To this extent, the observations and the conclusions of both the courts below
are concurrent. Pertinently, no cross objection was preferred before the lower
appellate court on behalf of the original defendant. Once we reach to such a
conclusion, the logical consequence as is reached by the lower appellate court
is inevitable.
12. The trial court without there being any defence in the written
statement about adverse possession and in spite of the provision of the Article
65 of the Limitation Act, since it was a suit for possession based on title, in the
absence of plea of adverse possession, the period of limitation would not have
began to run recorded grossly erroneous and illegal finding.
13. When it was a dispute pertaining to title, once having reached the
conclusion and upheld the title of the plaintiff to the suit property, even the
observations and the conclusions of the trial court that the defendant was a
bona fide purchaser of the suit property was grossly illegal and unsustainable.
All these facts and circumstances have been considered by the lower appellate
court while reaching a conclusion that the judgment and order passed by the
Judg-SA-255-2000.odt
trial court was grossly illegal and was liable to be quashed and set aside and
reversed.
14. Since this is a second appeal, as laid down in the matters of Hero
Vinoth (minor) Vs. Seshammal; (2006) 5 SCC 545, para 19 and Narayanan
Rajendran and Ors. Vs. Lekshmy Sarojini and Ors.; (2009) 5 SCC 264, para
64, the powers of this court to undertake a fresh scrutiny of evidence are very
limited and the present matter does not warrant any such exercise. The
paragraph Nos. 19 and 64 read as under :-
"19. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of
fact, being the first appellate court. It is true that the lower
appellate court should not ordinarily reject witnesses accepted by
the trial court in respect of credibility but even where it has
rejected the witnesses accepted by the trial court, the same is no
ground for interference in second appeal when it is found that the
appellate court has given satisfactory reasons for doing so. In a
case where from a given set of circumstances two inferences of fact
are possible, one drawn by the lower appellate court will not be
interfered by the High Court in second appeal. Adopting any other
approach is not permissible. The High Court will, however,
interfere where it is found that the conclusions drawn by the lower
appellate court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at by ignoring material
evidence."
"64. Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High Courts
would have jurisdiction of interfering under Section 100 C.P.C.
only in a case where substantial questions of law are involved and
those questions have been clearly formulated in the memorandum
of appeal. At the time of admission of the second appeal, it is the
bounden duty and obligation of the High Court to formulate
substantial questions of law and then only the High Court is
permitted to proceed with the case to decide those questions of law.
Judg-SA-255-2000.odt
The language used in the amended section specifically
incorporates the words as "substantial question of law" which is
indicative of the legislative intention. It must be clearly understood
that the legislative intention was very clear that legislature never
wanted second appeal to become "third trial on facts" or "one
more dice in the gamble". The effect of the amendment mainly,
according to the amended section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard
only on that question."
15. No substantial question of law arises for determination in this
second appeal. It is dismissed.
16. Pending Civil Application is disposed of.
( MANGESH S. PATIL, J.)
1. After pronouncement of judgment the learned advocate Mr.
Kakade for the appellants prays for extension of interim relief, which has been
in operation till date, to enable the appellant to approach the Supreme Court.
2. Other side has objection.
3. Considering the nature of the dispute and fact that the interim
relief was in operation till today, the said interim relief to continue for a period
of six (6) weeks from today.
( MANGESH S. PATIL, J.)
Tandale/-
