Mohd. Kasim Wali Mohd And Anr vs State Of Maharashtra Thro. ...
2022 Latest Caselaw 4108 Bom

                                     1                          SA / 495 / 2002



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                   SECOND APPEAL NO. 495 OF 2002
                                 AND
          CIVIL APPLICATION NO. 13922 OF 2017 IN SA/495/2002;
          CIVIL APPLICATION NO. 7511 OF 2002 IN SA/495/2002;
          CIVIL APPLICATION NO. 11138 OF 2014 IN SA/495/2002

1] Mohd. Kasim Wali Mohd.,
   (deceased), through his legal representatives:

     (Amended made as per order dated 13-1-2019)

1A. Zarinobano W/o Mohd. Kasim
    Age 48 years, Occu. Household
    Resident of Railway Station, Aurangabad

1B. Mohd. Afzal S/o Mohd. Kasim
    Age 26 years, Occu. Business
    Resident of Railway Station, Aurangabad

1C. Mohd. Imran S/o Mohd. Kasim
    Age 23 years, Occu. Business
    Resident of Railway Station, Aurangabad

2.    Abdul Rauf S/o Wali Mohd.,
      (Deceased), through his LRs.

      (Amendment made as per order dated
      25-07-2014)

2A. Ashiyan W/o Abdul Rauf,
    Age 46 years, Occup. Household,
    Resident of Railway Station, Aurangabad

2B. Mohd. Shakeel S/o. Abdul Rauf
    Age 28 years, Occu. Household,
    Resident of Railway Station, Aurangabad

2C. Mohd. Adil S/o Abdul Rauf
    Age 24 years, Occup. Business,
    Resident of Railway Station, Aurangabad

2D. Rumana Bano D/o Abdul Rauf
    Alias Rumanbano W/o Ashfaq Noorni
    Age 27 years, Occup. Household,
    Resident of Iqbal Nagar, Ward No. 10, Buldhana




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                                       2                       SA / 495 / 2002



2E. Razwana Bano D/o Abdul Rauf,
    Alias Rizwana W/o Mohd. Irfan Isani
    Age 25 years, Occup. Housheold,
    Resident of Gulmohar Colony, Sailu,
    Dist. Parbhani                                              .. APPELLANTS


        VERSUS

1]   The State of Maharashtra,
     Through Collector,
     Aurangabad

2]   Executive Engineer
     Mah. Jeevan Pradhikaran,
     (Urban & Rural),
     Vedant Nagar, Near Railway Station
     Watertank, Railway Station,
     Aurangabad

     (Amendment as per leave of Court
      granted vide order dated 07-05-2014
      in CA/380/2009)

3] Govt. College of Education,
   Aurangabad through its Principal

4] Devgiri Mahavidyalaya,
   Aurangabad though its Principal                       .. RESPONDENTS
                                                             (Defendants)

                                        ...
 Mr. V.J. Dixit, Sr. Advocate i/b. Mr. G.L. Deshpande, Advocate for appellant
               Mr. N.T. Bhagat, AGP for respondents no. 1 and 3
  Mr. R.S. Deshmukh, Sr. Advocate i/b. Mr. A.G. Vasmatkar, Advocate for
                                 respondent no. 2
               Mr. D.J. Chaudhari, Advocate for respondent no. 4
                    Mr. G.D. Jain, Advocate for the intervenor
                                        ...


                                CORAM           : MANGESH S. PATIL, J.
                                RESERVED ON     : 06 APRIL 2022
                                PRONOUNCED ON   : 19 APRIL 2022

JUDGMENT :

I have heard the arguments of the learned senior

advocates representing both the sides as also the other advocates.

3 SA / 495 / 2002

2. The second appeal was admitted by the order dated

13-02-2017 on following substantial questions of law :-

(i) Whether findings by the trial court, reversed by the appellate court, are sustainable on the touchstone of the guidelines given by the Apex Court in case of "Santosh Hazari V/s. Purushottam Tiwari died by LRs." reported in 2001 (3) SCC 179 ?

(ii) Whether it can be said that non observance of procedure under Order XLI, Rule 31 of the Civil Procedure Code, has caused prejudice to the parties ?

(iii) Whether evidence on record adduced by the parties bears out nexus between grant under Exhibit-65 and CTS 18311 ?

3. The facts giving rise to such substantial questions can be

summarised as under :-

(a) The appellants are the original plaintiffs who filed a suit for

declaration of their title to the suit property described as CTS no. 18311

corresponding to municipal house no. 5-4-76/P of Osmanpura,

Aurangabad and for consequential relief of injunction restraining the

respondents who are the original defendants from obstructing their

possession over the suit property.

(b) The appellants claimed that their father was the original owner of

the suit property and was in its exclusive possession during his lifetime

4 SA / 495 / 2002

till 1970. After demise they have been in its exclusive possession.

They paid monthly taxes and their names were recorded in the

municipal record.

(c) They averred that on account of their occupation, they migrated

to Gujarat. The city survey was conducted in their absence in the year

1971. Though during that enquiry, the property was shown as owned

by the respondent no. 4 - Education Society, it was recorded behind

their back erroneously. They further averred that subsequently even

the area of the suit property that was recorded in the city survey record

was reduced from 33365 square meters to 21.618 square meters

without assigning any reason, thereby carving out city survey no.

18311/1 and shown to be in possession of the respondent no. 4.

(d) They further averred that the respondent no. 4 was allotted only

portion admeasuring 5 Acre 30 Guntha, by the order of the Collector in

the year 1963 which was allotted City Survey no. 18314. There is no

such similar order of allotment of City Survey no. 18311/1 in its favour.

Taking advantage of their absence, the respondents are trying to

encroach over the suit property hence they prayed for declaration of

title and injunction.

(e) The respondents by their respective written statements denied

title and possession of the appellants over the suit property. They

asserted that the suit property was part and parcel of land which vested

5 SA / 495 / 2002

in the State Government and was allotted to various government

departments and the respondent no. 4 - Education Society.

(f) The trial court decreed the suit by holding that the suit property

was granted by the Nizam by his order - Exhibit - 65 in the name of

one Mohammed Kasim who subsequently sold it to the appellants'

father under a sale deed. It also concluded that the respondents had

failed to prove that the suit property was owned by the Government.

(g) By the judgment and order under challenge, in an appeal on

behalf of the State, the district court has quashed and set aside the trial

court's judgment and decree and dismissed the suit. Hence this

appeal.

4. The learned senior advocate Mr. Dixit for the appellants

would vehemently submit that the copy of grant issued by the Nizam

was produced on the record along with its English translation. Even a

copy of the sale deed under which the appellants' father purchased it

was also produced on record. These documents were sufficient to

uphold exclusive title of the appellants. The trial court had rightly

considered such ancient documentary evidence while upholding the

appellants' title. There was no perversity or arbitrariness much less

any illegality. The district court has not squarely met the grounds and

the reasoning given by the trial court.

6 SA / 495 / 2002

5. Learned senior advocate Mr. Deshmukh, learned AGP and

the learned advocates for the rest of the respondents would support

the judgment and order of the district court under challenge. They

would submit that since it was an issue regarding title, heavy burden

was on the appellants to prove it, which they miserably failed to. The

original documents under which they have been claiming title was

never produced on the record, only its photocopies were produced.

Even there was no affidavit of any person translating it from Urdu to

English. The documents under which the appellants' father is stated to

have purchased the suit property also is an unregistered document. No

permission to lead secondary evidence was also obtained. These

documents were not squarely proved. The trial court grossly erred in

overlooking all these material defects which have been precisely

pointed out by the district court and those are unassailable.

6. The learned advocates would further submit that there was

absolutely no evidence led before the trial court to demonstrate in what

manner the suit property can be identified as the property in respect of

which the Nizam's grant and the subsequent sale deeds relate to.

Even this aspect has been considered by the district court. Decision

by the district court takes a plausible view and this court cannot upset it

with a limited jurisdiction under section 100 of the Code of Civil

Procedure.

7 SA / 495 / 2002

7. Since the dispute pertains to the claim of the appellants

seeking a declaration of their title to the suit property, it was highly

imperative for them to have come out with the particulars and specific

averments in the plaint as to the source of the title. That is why I have

reproduced herein-above the averments in the plaint. There is

absolutely no whisper as to the source of the title. It has been vaguely

averred that appellants' father was the owner and after his demise they

inherited the property. Pertinently, even in the testimonies of the

appellants' witnesses one of whom was examined as PW1, the source

of the title was not disclosed. It appears that no attempt was made by

the appellants to disclose the source of their title till the time they

closed their oral evidence.

8. In spite of such state-of-affairs, it appears that abruptly,

photocopies of couple of documents in Urdu were produced on record

along with their purported English transalation. Even no affidavit of any

translator was filed.

9. Apart from such state-of-affairs, though permission to lead

secondary evidence may not be required and a party is entitled to

make out grounds under section 65 of the Evidence Act entitling it to

lead secondary evidence would suffice, in spite of the fact that the

photocopies were being produced purportedly of a grant and a sale

deed, absolutely no ground under section 65 of the Indian Evidence Act

was even attempted to be established during the testimonies of the

8 SA / 495 / 2002

appellant Mohammed Kasim (PW1) or the witness Gulam Khan (PW3).

Therefore, though the district court was not legally correct in observing

that permission to lead secondary evidence was not sought when it is

not the requirement of law, as reiterated by the supreme court in the

matter of Dhanpat Versus Sheo Ram (Deceased) Through Legal

Representatives and others; (2020) 16 Supreme Court Cases 209,

the fact remains that the grounds which entitle a party to lead

secondary evidence under section 65 of the Evidence Act were not

made out.

10. Resultantly, trial court could not have legally referred to

and relied upon such photocopies of the documents which were not

duly proved to be secondary evidence. The district court has rightly

marked this illegality committed by the trial court in referring to and

even relying upon the documents which were neither the originals nor

they could have been admitted as secondary evidence and still one of

them, the grant, was exhibited even though the other document

purportedly a sale deed was not even treated by the trial court as duly

proved and was not rightly not exhibited.

11. Apart from the above state-of-affairs, the document in Urdu

which purports to be a copy of the sale deed in the name of the

appellants' father is clearly a sale deed which has not been registered

in spite of it being compulsorily registrable under section 17of the

Registration Act. This document has seen the light of the day after

9 SA / 495 / 2002

coming into force of the Registration Act and the Transfer of Property

Act and by virtue of section 17 of the former and section 54 of the

latter, when it purports to transfer an immovable property for a

consideration of Rs.1500/- executed on 02-08-1956, it was not

admissible in evidence in view of the bar contained under section 49 of

the Registration Act.

12. The trial court had committed gross illegality in ignoring

this fact even when the dispute pertains to title and the appellants claim

to have derived title under such an unregistered sale deed. Suffice for

the purpose to observe that the practise of such transfer / covenants of

immovable property on the basis of such documents which require by

law to be registered but are not registered, has been deprecated by the

supreme court in the matter of Suraj Lamp and Industries Private

Limited Vs. State of Haryana and another; (2012) 1 SCC 656.

13. Consequently, the observations and the conclusions of the

district court holding that both these documents; the initial grant and

the subsequent sale deed were not the original, there was no proof

regarding existence of grounds entitling the appellants to lead

secondary evidence and still were erroneously relied upon by the trial

court, deserve to be upheld.

14. As is pointed out by the district court, there is one more

aspect in the matter. Even if these documents are taken at their face

value, there is a serious dispute as to the identification of the suit

10 SA / 495 / 2002

property and the property that was referred to in both these documents.

Absolutely no evidence is led by the appellants about this aspect.

15. One cannot record conclusive findings for want of

evidence that the property that was described in the grant and the sale

deed, as a property out of 20 Acres that was given to the Resaldar in

lieu of his services and subsequently transferred to his successor -

Mohammed Kasim and out of which he sold to the appellants' father,

a portion of 4 Acre 4 Gunthas portion from out of those 20 Acres

portion, is the same i.e. the suit property. The district court has,

therefore, rightly concluded that there is dearth of evidence to

demonstrate that the suit property is nothing but the property out of the

20 Acres portion and that was subsequently transferred in the name of

the appellants' father.

16. In view of such objective analysis undertaken by the

district court in concluding that the trial court had not considered the

evidence in the proper perspective, in the light of the above infirmities,

in my considered view, it has rightly considered all the aspects of the

matter in dispute and has rightly exercised the powers in the four

corners of law as laid down by the supreme court in the case of

"Santosh Hazari V/s. Purushottam Tiwari died by LRs."; 2001 (3)

SCC 179 and under Order XLI Rule 31 of the Code of Civil Procedure

even while concluding that there was no evidence to establish any

11 SA / 495 / 2002

nexus between the grant (Exhibit - 65) and the suit property CTS no.

18311.

17. Hence I answer the substantial question no. 1 in the

affirmative and questions nos. 2 and 3 in the negative.

18. There is no merit in the second appeal. It is dismissed.

19. Pending civil applications stand disposed of.

[ MANGESH S. PATIL ] JUDGE arp/