Kiniko Cooperative Housing ... vs State Of Maharashtra And Anr
2022 Latest Caselaw 604 Bom

                                         1                 SA / 786 / 1999



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      SECOND APPEAL NO. 786 OF 1999

KINIKO CO-OPERATIVE HOUSING SOCIETY,
Through its Chief Promoter,
Syed Shah Quodri Rais,
S/o. Gulam Mohammed Quodri,
Age : 52 years, Occu. Business,
R/o. Chalipura, Aurangabad                               .. APPELLANT
                                                            (Ori. Plaintiff)

    VERSUS

1] The State of Maharashtra,
   Through the Tahsildar,
   Aurangabad

2] The City and Industrial Development
   Corporation, Aurangabad,
   Through its Administrator,
   Office at N-5, CIDCO, Town Centre,
   Aurangabad                                           .. RESPONDENTS
                                                           (Ori. Defendants)
                                     WITH
                      CIVIL APPLICATION NO. 4134 OF 2007
                      CIVIL APPLICATION NO. 6246 OF 2014
                      CIVIL APPLICATION NO. 5800 OF 1999

                                       ...
  Shri P.V. Mandlik, Sr. Advocate i/b. Mr. G.R. Syed, Advocate for appellant
                 Shri B.V. Virdhe, AGP for respondent no. 1
               Shri A.S. Bajaj, Advocate for respondent no. 2
                                       ...

                                 CORAM          : MANGESH S. PATIL, J.

                                 RESERVED ON   :   11 JANUARY 2022
                                 PRONOUNCED ON :   18 JANUARY 2022


JUDGMENT :

Civil Application no. 4134 of 2007 is filed for intervention by

a third party, who happens to be the widow and the grandson of the

defendant in Regular Civil Suit no. 139 of 1987, being relied upon by

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the appellant. Needless to state that they may have their remedies

which they can independently pursue in the competent court. In the

matter in hand, their presence is not necessary for just decision of the

second appeal. Therefore, they are not entitled to be heard while

deciding the second appeal and their Civil Application no. 4134 of 2007

is liable to be rejected. Civil Application no. 4134 of 2007 is, therefore,

rejected.

2. By the order dated 02-08-2000, this appeal was admitted

observing that the grounds no. XXI(1) to XXI(4) of the appeal memo

would be the substantial questions. The questions would be like this :

(1) When the plaintiff established his possession over the

suit land on the basis of sale deed, city survey record,

revenue record and the decree passed in Regular Civil

Suit no. 139 of 1987 and further established his

possession over the suit property and the defendants

having no right, title or concern over it, whether the

decree passed by the trial court could have been set

aside by the appellate court ?

(2) When it is mandatory on the part of the court below to

frame proper points for determination, in view of the

Order 41 of the Code of Civil Procedure and when

admittedly, the court below has not framed proper points

for determination and delivered a judgment, whether the

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said judgment is a nullity and liable to be set aside in

view of the ratio laid down in the case which has been

reported in AIR 1985 BOM 92 ?

(3) When the toach maps and review sheet and other

relevant record does not show that the suit property is

part and parcel of the survey no. 117 and when only one

document i.e. measurement/review sheet, prepared

behind the back of the plaintiff, showing survey no. 117

over the portion of CTS No. 11489/1, whether relying on

such evidence, which has not even been proved by

calling original record, decree passed by the trial court

can be reversed by the appellate court ?

(4) When the judgment and decree passed by the civil court

in RCS 139/87 holding the vendor Shafi Ahmedkhan as

owner and possessor of the suit property has not even

been challenged by anybody and when vendor Shafi sold

land to the plaintiff under a registered sale deed, under

such circumstances, without setting aside the decree in

RCS No. 139/87, whether the finding of the court below

that the plaintiff is not in lawful possession of the suit

property, can be sustainable ?

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3. These points arise from following facts and circumstances:

The appellant claiming to be the owner in possession of the

suit property, filed a suit for perpetual injunction restraining the

respondent no. 2, which is a development authority constituted under

the Maharashtra Regional & Town Planning Act, 1966, from obstructing

his possession. He described the suit property as a portion

admeasuring 10721 Square metres (2 Acres 26 Gunthas) bearing city

survey no. 11489/1 of Aurangabad. He asserted that it was a part and

parcel of the erstwhile land survey no. 115. He also averred that it was

duly recorded in his name in the property card of the city survey office.

Besides, his predecessor had succeeded in obtaining a decree

regarding declaration of his right and title in the same property in

Regular Civil Suit no. 139 of 1987. Pursuant to the sale deed he

entered into possession and has erected a shed and a shop. He

averred that without there being any right or concern, the respondent

no. 2 (hereinafter "CIDCO") is obstructing his possession.

The respondent no. 2 contested the suit by filing a written

statement. It denied title of the predecessor of the appellant over the

suit property and also consequently denied the appellant having derived

any title and possession. It contended that the suit property bearing

CTS no. 11489/1 is, in-fact, a part and parcel of land survey no. 117 and

not land survey no. 115, as is being averred by the appellant. It

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contended that by virtue of a Government notification, being a

development authority constituted under law, the land survey no. 117

was allotted to it for the purpose of development. By falsely pretending

that it is a part and parcel of survey no. 115, the appellant is laying

claim over a portion of land survey no. 117. It admitted that it has no

concern with the land survey no. 115. It was also contended that the

decree obtained by appellant in Regular Civil Suit no. 139 of 1987 was

a collusive one.

4. The trial court framed necessary issues and by the

judgment and order dated 30-04-1994 decreed the suit, holding that the

suit property was a part and parcel of survey no. 115 and not survey

no. 117.

5. CIDCO went in appeal and by the judgment and order

under challenge in this second appeal, it was allowed. The decree of

the trial court was quashed and set aside and the suit was dismissed.

6. Learned Senior Advocate Mr. Mandlik would vehemently

submit that admittedly the CIDCO has no concern with land survey

no. 115 and only the land survey no. 117 was allotted to it. The

appellant has not been asserting any claim in respect of land survey no.

117. He had succeeded in establishing that the suit property was

carved out from land survey no. 115. The evidence was correctly

appreciated by the trial court. Even there was a corroboration in the

form of the decree passed in Regular Civil Suit no. 139 of 1987 and

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such correct appreciation of the trial court has been unnecessarily

interferred with by the first appellate court which even failed to

formulate the points for determination in accordance with the provision

of Order XLI Rule 31 of the Code of Civil Procedure. There was also a

revenue record and the record of the city survey office which

substantiated the appellant's averments. Without there being any error

committed by the trial court in appreciating the evidence, the appellate

court has jumped to the conclusion on the basis of inadmissible

evidence and overlooking all the aforementioned facts and

circumstances. It is in the light of such state-of-affairs, the second

appeal has been admitted on the aforementioned questions.

7. Mr. Mandlik would further submit that considering the

peculiar nature of the dispute, it cannot be resolved unless there is a

joint measurement of both survey no. 115 and 117 undertaken in

presence of both the sides. That is why even separate application

being Civil Application no. 6246 of 2014 has been filed and is pending

to ascertain the exact location of the piece of land being claimed by the

appellant.

8. The learned Advocate Mr. Bajaj for CIDCO would submit

that no substantial question of law arises in the facts and circumstances

of the case. He would submit that the only dispute that needs to be

addressed is, as to whether the suit property claimed to have been

purchased by the appellant, is a part and parcel of land survey no. 115.

7 SA / 786 / 1999

He would submit that admittedly, the land survey no. 117 is allotted to

CIDCO and if that is so, once it is found that city survey no. 11489 is

carved out from land survey no. 117, there remains nothing to be

adjudicated. He would submit that a witness from the survey office

was examined who specifically stated that city survey no. 11489 is

carved out from land survey no. 117 and not land survey no. 115. The

trial court had failed to appreciate the evidence. The error has been

corrected by the appellate court by appreciating such evidence. The

toach map along with the testimony of the surveyor (DW1) was

correctly appreciated by the appellate court while allowing the appeal.

9. Mr. Bajaj would submit that though the points for

determination were not formulated, all the aspects were duly

considered and decided touching the issues framed by the trial court

and, therefore, no prejudice was caused to the appellant, even if the

points for determination were not meticulously formulated under Order

XLI Rule 31 of the Code of Civil Procedure.

10. He would further submit that inspite of the serious dispute

as to the title of the appellant to the suit property having been raised by

CIDCO, the trial court had conveniently ignored the revenue record

showing that the land survey no. 115 was, in-fact, not a private property.

There was a revenue record showing that it was standing in the name

of the erstwhile ruler and subsequently, as the Government land. In

fact, going by the nature of that property wherein a graveyard and a

8 SA / 786 / 1999

mosque was situated and part of it was a hilly region which was

inconvenient to be developed, that the land survey no. 115 was

subsequently deleted at the request of the CIDCO from the array of

lands that were allotted to it by the Government.

11. He would submit that the appellant is claiming that his

predecessor had derived title on the basis of a grant by the erstwhile

ruler, however, it was never duly established and proved. He would

further submit that in-fact, the description of the suit property itself was

faulty. The appellate court has clearly demonstrated as to how the

boundaries of the suit properties as mentioned in the plaint clearly

indicate that the piece of land i.e. the suit property being claimed by the

appellant is nothing but a portion from land survey no. 117. Since all

these facts and circumstances and the evidence was not correctly

appreciated by the trial court, it is on re-appreciation of such evidence

that the appellate court has reached a plausible conclusion, which is

clearly borne out from the pleadings and the evidence and it has rightly

interferred with and reversed the judgment of the trial court and

dismissed the suit.

12. So far as the Civil Application no. 6246 of 2014 is

concerned, Mr. Bajaj would submit that by way of improvisation, the

appellant is seeking to create some evidence which cannot be allowed

at the second appellate stage. He would submit that there is no dispute

about the extent and dimension of the land survey no. 117. The piece

9 SA / 786 / 1999

of land being claimed by the appellant as suit property, is nothing but a

portion to the north-west corner of land survey no. 117. No purpose

would be served by relegating the parties by undertaking a fresh

measurement. He would submit that it is not a dispute of boundaries

but essentially a dispute pertaining to identity of the property and the

measurement even if it is undertaken afresh would not help this court in

deciding the second appeal.

13. I have carefully considered the rival submissions, perused

the record and proceedings and the judgments of the two courts below.

As can be appreciated, the dispute does not pertain to any boundary

but essentially is regarding identity of the suit property, whether it is the

part and parcel of survey no. 115 or survey no. 117. Pertinently, there

is no dispute about the fact that CIDCO is not laying any claim in

respect of survey no. 115. Conversely, even the appellant is not

disputing that the land survey no. 117 has been allotted to CIDCO. It is

in the light of such a scenario that one will have to approach the

dispute.

14. Simultaneously, it is also important to note that apart from

the above mentioned dispute, the CIDCO is seriously disputing title of

the appellant to the suit property, by contending that the land survey no.

115 was never a private property but was a property of the erstwhile

ruler and the Government which could not have been independently

transferred to an individual who was the predecessor of the appellant.

10 SA / 786 / 1999

But then, this dispute as to the title would come into play if it can be

demonstrated that the suit property is a part and parcel of survey no.

115 and not survey no. 117.

15. Needless to state that since CIDCO was not a party to the

Regular Civil Suit no. 139 of 1987, albeit, the predecessor of the

appellant had succeeded in getting the decree regarding declaration of

his right over a portion of survey no. 115, that would not be binding on

the CIDCO. Besides, as is mentioned earlier, even that fact would have

no bearing on the matter in hand, if ultimately it is concluded that the

suit property is a part of survey no. 117 and not survey no. 115.

16. Now turning to the dispute, true it is that there is a sale

deed describing the suit property as is being claimed by the appellant.

There is also a revenue record created initially and the city survey

record and the property card showing him to be holder of the suit

property. But again all such evidence would be a peripheral evidence.

The crux of the dispute would again boil down to the fact as to if the suit

property is a part of survey no. 115 or survey no. 117.

17. It is in the light of such a state of scenario, the testimony of

the surveyor Sayyed Manjuruddin (DW1) will have to be appreciated.

He had brought the original sheet of city survey no. 11489. He had also

brought a sheet no. 360 and 369 of that city survey number. On the

basis of such original record of his office, he specifically stated that city

survey no. 11489 has been carved out and is a part and parcel of

11 SA / 786 / 1999

survey no. 117. He further deposed that though initially city survey no.

11489 was admeasuring 9870.07 square metre, the portion covered by

survey no. 115 while preparing the original record (Waslewar) was not

calculated. He specifically deposed that no portion of city survey

no. 11489 is a part of land survey no. 115. He also brought on record

the original record by which survey no. 11489 was sub-divided and also

produced the measurement map Exhibit-96 on the record. He further

testified that from the original sheet, review sheet was prepared and

certified copy of the review sheet is at Exhibit-97. He stated that on the

basis of such record, it can be seen that city survey no. 11489/1 is a

part and parcel of survey no. 117.

18. During his testimony, he was unable to tell as to on what

basis the original sheet of city survey no. 11489 mention about survey

no. 115. He was also confronted with the list of the properties

maintained by his office which he himself had brought. Couple of errors

were admitted by him which he was unable to explain as to how the

review sheet Exhibit - 98 does not tally with the list of properties which

was also exhibited as 98. However, conspicuously, this record as

coming from the proper custody and clearly demonstrated that city

survey no. 11489/1 is a part and parcel of land survey no. 117.

19. Pertinently, this witness was an official witness, who had no

axe to grind and clearly testified on the basis of the record maintained

by his office. When on the basis of land record, he had clearly testified

12 SA / 786 / 1999

that city survey no. 11489/1, which is nothing but a suit property, is part

and parcel of survey no. 117, the conclusion is inescapable, since

admittedly survey no. 117 was allotted to CIDCO. No plausible and

appreciable reason was assigned by the trial court for refuting the

testimony of this witness.

20. At the cost of repetition, if one bears in mind the fact that

the dispute does not pertain to boundary, but identity of the property,

going by the dispute being raised by the appellant, there being no

dispute about the topography, it is quite apparent that the appellant has

been asserting the claim on the basis of the sale deed over the north-

west corner portion of the land survey no. 117, and is claiming it to be a

part of survey no. 115. This is what precisely has been appreciated and

considered by the appellate court. It has clearly demonstrated in

paragraph no. 35, as to how the description of the suit property did not

correspond to the toach map and review sheet of the survey office and

clearly demonstrated that the suit property was not a part and parcel of

city survey no. 115 and there was a serious error about the identity of

the property.

21. Similarly, the appellate court has clearly demonstrated as

to how based on such sale deed, the revenue record and city survey

record prepared on that basis, claim is now being laid in respect of a

portion of land survey no. 117. In my considered view, no error is

committed by the appellate court in re-appreciating the evidence and

13 SA / 786 / 1999

rectifying the error committed by the trial court in appreciating the

evidence in proper perspective.

22. As regards actual possession over the suit property is

concerned, admittedly, the appellant has been laying claim to such

possession on the basis of the sale deed of the year 1989. He has not

examined his predecessor in title as witness to substantiate such

delivery of possession. The photograph on the record and the report of

the commissioner appointed by the trial court under Order XXVI Rule 9

of the Code of Civil Procedure was not specifically traversed by the

appellant. The report clearly demonstrates that whatever structures

were erected there, were of recent origin. It was obviously to be so,

inasmuch as the suit was filed soon after the plaintiff purchased the suit

property under sale deed dated 03-01-1989. Therefore, by no stretch of

imagination can it be said that he was in settled possession of the suit

property, so that he could be entitled to the equitable and discretionary

relief of injunction also.

23. Once having reached such a conclusion, mere failure of the

appellate court to formulate the points for determination, as is required

under Order XLI Rule 31 of the Code of Civil Procedure, cannot be a

sufficient ground giving rise to any substantial question of law. In the

result, the above questions of law, in-fact, do not arise in the facts,

circumstances and evidence in the case, for the reasons discussed

herein-above.

14 SA / 786 / 1999

24. To repeat, since it is a matter regarding identity of the suit

property and not a boundary dispute, even a request for undertaking a

fresh measurement, would be an exercise in futility. The Second

Appeal is dismissed. Civil Application no. 6246 of 2014 is rejected.

25. Other pending Civil Applications also stand disposed of.

[ MANGESH S. PATIL ] JUDGE

26. After pronouncement of the judgment, learned Advocate

Mr. Mandlik for the appellant submits that the interim relief granted vide

order dated 02-08-2000 was in operation till date and now that the

appellant wants to approach the Supreme Court, stay may be

continued. Mr. Bajaj for the respondent no. 2 opposes the request.

27. Order dated 02-08-2000 to continue for a period of eight (8)

weeks from today.

[ MANGESH S. PATIL ] JUDGE arp/-