Bombay High Court
Rahul Amrutsing Vasave vs Adhunik Detergent Limited Thr. ... on 7 January, 2022
Bench: V. V. Kankanwadi
sa-604-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.604 OF 2021
RAHUL AMRUTSING VASAVE
VERSUS
ADHUNIK DETERGENT LIMITED THROUGH THE POWER OF
ATTORNEY HOLDER ANANDSING RADHANATHSING
...
Mr. A. S. Abhyankar h/f Mr. S. V. Natu, Advocate for the appellant.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 03.12.2021
Pronounced on : 07.01.2022
ORDER :-
. Present appeal has been filed by the original defendant
challenging the concurrent judgment and decree passed by the Courts
below. Present respondent - original plaintiff had filed Regular Civil Suit
No.06 of 2008 before the learned Civil Judge Junior Division, Nawapur,
Dist. Nandurbar for permanent injunction. The said suit came to be
decreed on 12.02.2014. It will not be out of place to mention here that
the present appellant - original defendant had made counterclaim and
sought declaration that he has become owner of the suit property by
adverse possession. His counterclaim came to be dismissed in the said
decree. The present appellant challenged the said judgment and decree
before learned Principal District Judge, Nandurbar by filing Regular Civil
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Appeal No.23 of 2014. The said appeal came to be dismissed on
05.08.2021. Hence, the present second appeal has been filed.
2. Heard learned Advocate Mr. A. S. Abhyankar holding for learned
Advocate Mr. S. V. Natu for the appellant.
3. It has been vehemently submitted on behalf of the appellant that
the Courts below have not appreciated the evidence as well as law
points properly. Plaintiff is a company whose main office is situated at
Borivali, Mumbai. It was contended that the company had purchased
the suit property on 03.09.1987. It was agricultural land at that time,
however, thereafter it has been made as non agricultural and the
number has been given as Gut No. 103/1. The another piece of land
was also purchased on the same day by the company which is now
numbered as Gut No.94/1, which is the southern part of Gut No.94.
The land was purchased for erecting a mill/factory, however, since last
4-5 years prior to the suit, the factory is closed. If this fact is tried to be
compared with the report of the Court Commissioner Exhibit-41, then it
can be seen that there are various trees in the land. A boring connection
was taken of which electricity bill is being paid by the defendant. So
also, there is tomb of his father erected in marble. The land was levelled
and sugarcane crops have also been taken. There is cattle shed erected.
It shows the possession of the defendant over the suit land. In spite of
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this fact, both the Courts below have held that the possession is that of
plaintiff. The report will have to be given weightage. Reliance has been
placed on the decision in Southern Command Military Engineering
Services Employees Co-op. Credit Society Vs. V. K. N. Nambiar (since
deceased) by Legal Representatives Madhvi Devi, [AIR 1988 SC 2126] ,
wherein the view taken that "when Court Commissioners report has
been produced which showed demised premises were not in occupation
of tenant but in occupation of strangers, then inference about subletting
will have to be drawn." On the same footing, the interpretation of the
report of the Court Commissioner will have to be taken that the
possession is that of defendant and not that of plaintiff. Both the Courts
below have not considered the credible evidence which has been
produced by the defendant. It is also not seen by the Courts below that
at no point of time when the defendant was levelling the land, erecting
tomb of his father, getting big trees cultivated and taking fruits of those
trees as evidence about hostility. The evidence of Power of Attorney of
the plaintiff who had no personal knowledge could not have been relied
by both the Courts below. Substantial questions of law are, therefore,
arising in this case requiring admission of the second appeal.
4. At the outset, in view of the decision in Ashok Rangnath Magar
Vs. Shrikant Govindrao Sangvikar, [2015 Mh.L.J. Online (S.C.) 140 ::
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(2015) 16 SCC 763], it is not even necessary that the defendant should
be heard at the stage of admission. It is the bounden duty of the
appellant to show that substantial question of law as contemplated
under Section 100 of the Code of Civil Procedure is arising in this case
and then only the appeal can be admitted and notice can be issued to
the respondents. The paperbook is made available and perusal of the
pleadings as well as evidence and the reasons assigned by both the
Courts below is definitely required to be considered here. It appears that
the defendant is more relying on the Court Commissioner's report than
even his own evidence. The first and the foremost question that arises is
as to whether the Court Commissioner could have been appointed by the
learned Trial Judge for collecting evidence. The question involved from
the pleadings was, as to who was in possession and, therefore, for
collecting the evidence on the point of possession, the Court cannot
resort to the provisions of Order XXVI of the Code of Civil Procedure.
Now, that report is not directly in question in the second appeal, but on
the basis of that report, which was the assessment of the Court
Commissioner about the inspection made by the Court Commissioner on
19.10.2008, whether it will prove the continuous possession of
defendant for a period of 12 years, is a question. No doubt, he noted
many trees in the land and recorded the statement that they were grown
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by the father of the defendant, yet exactly when those seeds/plants for
those trees were embedded in the earth cannot be assessed. According
to the defendant, his father expired on 18.10.2005 and even if we take
that the tomb is constructed in the suit premises, yet, it is to be noted
that the suit is filed in the year 2008. Therefore, it cannot prove
possession of 12 years period.
5. Though in the written statement, the defendant had denied the
ownership of the plaintiff, yet it can be seen that in the cross-
examination, he has specifically admitted that Gut No.94/1 and 104/1
are owned by the plaintiff. In any way, when the defendant was
claiming ownership by adverse possession, then he will have to admit
the ownership of the plaintiff. The further question that arises is as to
who was in possession. The normal rule would be the person who is the
owner would be the possessor. Here, in this case, the defendant has not
come with specific pleading in the written statement-cum-counterclaim
as to exactly when the defendants father took possession of the suit
property and in which manner i.e. forcible or in any other manner. No
doubt, his lands are adjacent to the suit land, it cannot be then stated
that while cultivating his own land, he took possession of the suit land
and started cultivating it in order to reckoning of minimum 12 years
period. The defendants should say when his father took the possession
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of the suit land. He has merely stated that since prior to 1994 his father
started cultivating the land. This vague statement will not prove the
adverse possession. Hostile animus is the key ingredient to prove
adverse possession. Even if for the sake of arguments it is accepted that
there are certain statements, which are in favour of the defendant to
show his possession over the suit land, yet those will not be sufficient
because the basic requirement is to prove continuous and open
possession that too in hostility for a period of 12 years or more. By no
stretch of imagination, the evidence that has been led by the defendant
can be stretched to 1987 or prior to that. The suit lands were purchased
in the year 1987 by registered instruments and, therefore, it will have to
be then presumed that the vendor of the plaintiff had put plaintiff in
possession of the suit lands on the date of the sale-deeds. Question then
arises in what manner, after 1987, defendant's father took possession of
the property. Plaintiff has not come with the case that after the purchase
of the land factory was erected. Though word used is factory is closed,
there is no pleading that factory was constructed. Therefore, it is to be
noted even from the revenue record also that has been produced which
has continuous entry of ownership as well as cultivation column in
favour of plaintiff; showing the possession of the plaintiff over the suit
land. Much has been said about the payment of agriculture cess by the
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father of the defendant in respect of the suit land. When it has not been
denied by the defendant that the suit land was converted to non
agriculture, then question of payment of agriculture cess for the suit
land doesn't arise. It cannot be taken as an act in hostility. Taking into
consideration the fact that adjoining land belongs to the defendant
giving sugarcane to the factory and incurring electricity charges on the
part of that land by the father of the defendant cannot be ruled out.
6. Interesting point to be noted is that as per the plaintiff, plaintiff
had given application to the Taluka Inspector Land Records, Navapur for
measuring non-agriculture Gut No.103/1 and 94/1. Even notice was
issued to the defendant, who was the adjoining owner to remain present
for the purpose of measurement, however, defendant objected for
measurement. If he would have allowed the land to be measured, then
the things would have come crystal clear, as to in whose area the trees
are situated. The act of the defendant in obstructing Taluka Inspector
Land Records from doing his duty is in fact not advantageous to the
defendant. That refusal on the part of the defendant to allow
measurement of the land was the cause of action for the plaintiff to file
the suit and then the Court Commissioner has been got appointed in this
case, who was in fact not an expert, but an Advocate practicing before
the said Court.
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7. Both the Courts below have, therefore, come to a correct
conclusion that the plaintiff is the owner and possessor of the suit land,
whereas the defendant has failed to prove that he has perfected his title
over the suit land by adverse possession. The suit has been correctly
decreed and the counterclaim has been correctly dismissed. The ratio
laid down in Southern Command Military Engineering Services
Employees Co-op. Credit Society (Supra) will not be applicable here as
the said citation does not give complete facts in detail and the view that
has been expressed is based on the evidence that was before the Apex
Court.
8. No substantial questions of law as contemplated under Section
100 of the Code of Civil Procedure is arising in this case requiring
admission of the second appeal. The second appeal deserves to be
dismissed at the threshold. Accordingly, it is dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
