Bombay High Court
Dhondiram Narayanrao Dhage vs Annappa Basappa Ainapure And Ors on 1 December, 2023
2023:BHC-AUG:25127
(1) sa306.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 306 OF 2004
WITH
CIVIL APPLICATION NO. 4098 OF 2017
AND
CIVIL APPLICATION NO. 2294 OF 2004
Dhondiram s/o. Narayanrao Dhage .. Appellant
Died through LRs. [original
Shaila d/o. Dhondiram Dhage Def.No.6]
Age.60 years, Occ. Business,
R/o. Driver Colony, Old Ausa Road,
Latur,Tq. & Dist.Latur.
Versus
1. Annappa Basappa Ainapure .. Respondents
Age. 63 years, Occ. Business, [Res.Nos.1
R/o. Mitra Nagar, Latur. to 6 ori.
Plff., Res.
2. Bhikaji Apparao Kulkarni No.7 to 11
Age. 21 years, Occ.Education, ori. defs]
R/o. Savewadi, Latur.
3. Dattatraya s/o. Apparao Kulkarni,
Age. 19 years, Occ. Education,
R/o. Savewadi, Dist. Latur.
4. Radhabai Govindrao Rawale
Age. 38 years, Occ.Household,
R/o. Latur.
5. Anil Baburao Tandale,
Age. 34 years, Occ. Business,
R/o. Dayaram Road, Latur.
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(2) sa306.04
6. Sow. Kamalbai Ramprasad Parikh
Age. 50 years, Occ. H.H.
R/o. Latur.
7. Vikramsing s/o. Dattusing Chavan
Age. 37 years, Occ. Agri.,
R/o. Latur.
8. Sk. Ahmed Sk. Budan (died)
8-1. Mohammad Ahmed Shaikh
Age. 62 years, Occ. Business,
R/o. Near Shivaji Statue,
Latur.
8-2. Ismail s/o. Ahmed Shaikh
Age. 57 years, Occ. Service,
R/o. C/o. Account Officer,
Panchayat Sammittee, Ahmednagar,
Tq. Ahmednagar, Dist. Latur.
9. Jeevan Hariprasad Thakre,
Age. 37 years,
10. Annappa Basappa Ainapure,
Age. 62 years,
11. Sow. Ranjanabai Govindrao Tawade,
Age. 34 years,
All R/o. Latur, Dist. Latur.
Mr.V.P. Savant and Mr. B.R. Kedar, Advocate for the
appellant.
Mr.N.P. Patil Jamalpurkar with Mr. Girish Awale, Advocate
for the respondents.
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(3) sa306.04
CORAM : KISHORE C. SANT, J.
RESERVED ON : 27.09.2023
PRONOUNCED ON : 01.12.2023
J U D G M E N T :
-
01. This Court by order dated 31.10.2007 admitted
this Second Appeal on the following substantial questions
of law.
(i) Whether in the facts and circumstances of
the present case, the suit merely for mandatory
injunction seeking removal of wire fencing
without claiming possession of alleged
encroached portion was maintainable and could be
considered by the trial Court as the relief
actually claimed was for possession?
(ii) Whether the first appellate Court rendered
perverse finding as regards the question of
encroachment and possession?
02. This Court is, therefore, required to answer
both the substantial questions of law.
03. Heard the learned Advocates for the parties.
Both the parties have made submissions extensively. This
Court has also gone through the paper book and record.
(4) sa306.04
The appeal arises out of the suit filed by respondent
Nos.1 to 6. Present appellant is the heir of original
defendant No.6. Respondent Nos.7 is original defendant
No.2/heirs of defendant No.2. Respondent Nos.8-1 to 8-2
are the legal heirs of original defendant No.2A through
General Power of Attorney holder respondent No.7.
Respondent Nos.7 to 11 are legal heirs of original
defendants. In view of the substantial question of law,
this Court first has to consider the prayers made in the
suit. The prayers in the suit reads as under :-
"1. That, it be declared by decree of this
Hon'ble Court, the plaintiffs are the owners,
possessors of their respective plots i.e. plot
No.109, 107, 106, 11 and 108 as shown in plaint
para Nos. (4,5,6,7,8) out of old Gat No.84/2/1
of village Khadgaon, Tal. Latur out of city sy.
No.9918 comprised in N.A. permission No.
1980/JMB/CR/50 dated 20.12.1980 of Dy.
Collector, Latur.
2. That, the defendants 1 to 2-D be restrained
by means of perpetual injunction from
interferring in peaceful possession of plaintiff
over suit plots in any way.
3. That, by mandatory injunction the def.
Nos.1 be directed and ordered to remove the wire
fencing intruding in the portion of suit plots
(5) sa306.04
and 111 from and out of Gat No.84/2/1 City
Survey No.9918 of village Khadgaon, Taluka
Latur.
4. That, the costs of the suit be awarded to
the plaintiffs from the defendants together with
other equitable relief."
04. The case of the original plaintiffs is that the
suit property land Gat No.84/2/1 admeasuring 4 Acres 3
Gunthas of village Khadgaon was owned and possessed by
one Suryakant Dhage. The land was sold to defendant Nos.
2, 2A, 2B, 2C and 2D. Plaintiff No.1 is also shown as
defendant No.2C after death of defendant No.2 and
therefore he is also shown respondent No.10. Plaintiff
No.6 purchased plot No.108 admeasuring 53 ft. East-West
and 50 ft. on Southern side having width of 40 ft north
south, as per the boundaries shown in the suit. The
sale-deeds were executed in favour of the plaintiffs by
defendant No.2 as a GPA holder of defendant Nos.2A to 2D.
On the strength of sale-deed, plaintiffs became owner of
the respective plots. There was some dispute between
defendant No.1 and defendant No.2 in respect of some
(6) sa306.04
portion of the suit land. There was also settlement
between the parties whereby defendant No.2 agreed to pay
the amount of Rs.18,000/- to defendant No.1 for his share
in the well situated in the land. However, same was not
honoured by defendant No.2. Defendant No.2, therefore, to
bring pressure on defendant No.1 led wire fencing upon
plots of the plaintiffs. The plaintiff, therefore,
requested defendant No.1 to get the land measured of his
share. Defendant No.1, therefore, got the land measured
by the Authorities of the land records on 16.12.1983. In
the said measurement it was found that wire fencing is
erected to the extent of 0.05 R land in plots of the
plaintiffs. The map was made part of the suit. The
plaintiffs, thereafter, requested defendant No.1 to
remove wire fencing. Since the wire fencing was not
removed, the suit was filed for declaration and perpetual
and mandatory injunction as referred above.
05. The defendants' case in written statement is
that since the provisions of the Maharashtra Regional
(7) sa306.04
Town Planning Act are not followed, the sale-deeds are
not valid. There is no prior sanction obtained from the
competent authority before transferring the plots. The
land could not have been transferred in the fraction of
the plots only with prior approval. There is also
violation of the terms and conditions, incorporated in
the NA permission. The plaintiffs have executed sale-
deed without verifying correctness of the statement made
by the seller in the documents of title. As regards well
is concerned, it is accepted that the well is situated in
the land falling to the share of defendant Nos. 2A to 2D.
Defendant No.1 has also easementary right to have water
from the well of Suryakant Dhage - defendant No.2. It is
denied that the wire fencing is made to bring pressure on
defendant No.2. The wire fencing is stated to be in
existence since last more than 40 years. The averments
as regards dispute between defendant Nos.1 and 2 are
denied. The cause of action is also denied. The ground
of limitation is taken. It is stated that the plaintiffs
are not entitled to file the suit after lapse of
(8) sa306.04
limitation for want of proper steps within limitation
period.
06. The learned Trial Court held that the plaintiffs
are in possession having title over the suit plots.
Defendant No.1 has put wire fencing on the suit plot. The
Trial Court framed the issues in view of pleadings of the
parties.
07. After taking evidence, the Trial Court proceeded
and decreed the suit directing the defendants to remove
the wire fencing restraining him from obstructing
plaintiffs' possession over the plots, holding that the
wire fencing was done only 8-15 days prior to the
institution of the suit.
08. Present appellant challenged the said judgment
and decree by filing appeal bearing Regular Civil Appeal
No.16 of 2000. The learned Appellate Court dismissed the
appeal without disturbing the findings and the conclusion
(9) sa306.04
recorded by the Trial Court.
09. After taking this Court through impugned
judgment and evidence, the learned Advocate for the
appellant Mr.B.R. Kedar submitted that the suit of the
plaintiff ought to have been dismissed in view of Order
VII, Rule 3 of the CPC and Bombay Amendment, as no map
showing encroachment was placed on record. In view of
non-observing mandatory provision, the suit was not
maintainable. The land was partitioned 40 years back and
since then there was a wire fencing. The suit was thus
not maintainable merely for mandatory injunction without
making prayer for possession. Both the Courts below have
committed an error by decreeing the suit. A specific
question was framed in the appeal about maintainability
of the suit without seeking relief of possession. The
Court has not answered the question properly. The suit
is collusive suit between the plaintiff and defendant
No.2 and other defendants. He submitted that the learned
Courts below have erred in discarding the Commissioner's
( 10 ) sa306.04
report. Both the properties were not measured. The wire
fencing was since prior to the execution of the sale-deed
and thus there ought to have prayer for possession.
10. Learned Advocate Mr.Jamalpurkar for the
respondents submits that the prayer in the suit was only
to remove wire fencing. For such prayer no further
prayer is required of possession. When it is not a case
of the plaintiffs that they are not in possession, from
evidence of the defendant himself it is clear that he did
not claim possession over the disputed land. When the
identification is given in the sale-deed, there is no
question of giving further particulars. He justified the
judgment of the Courts below and prayed for dismissal of
the appeal. He submitted that in the written statement,
there is no ground taken about Order VII, Rule 3 of the
CPC, neither same is raised in the appeal. The appellant
cannot raise such ground for the first time in this
Court. This Court is sitting in the second appeal and
cannot go into appreciation of the evidence. He
( 11 ) sa306.04
submitted that the question of possession is a mixed
question of fact and law and prayed for dismissal of the
appeal.
11. After hearing the parties, this Court finds that
in the written statement the averment is about
limitation. Even from the evidence it is seen that the
case of the appellant/original defendant is that the suit
is not within limitation stating that the wire fencing is
there since last more than 40 years and in any case prior
to the execution of sale-deed. The Commissioner report
Exh.25, which is referred by the appellant also shows
that there is wire fencing erected on the disputed land.
The panchanama on the basis of which the Commissioner's
report is prepared shows that the spot was visited by the
Commissioner.
12. Learned Advocate Mr.B.R.Kedar relies on the
judgment in the case of Misrilal Ramratan & Ors.
Mansukhlal & Ors. Vs. A.S. Shaik Fathimal (dead) By LRs.
( 12 ) sa306.04
And Ors., reported in 1995 Supp. (4) SCC 600. In the
said case the Hon'ble Apex Court held that the report of
the Commissioner is part of record and therefore the
report cannot be overlooked or rejected on spacious plea
of non-examination of the Commissioner as a witness,
since it is part of record of the case. In that view
when there was report of the Commissioner stating that
age of the building as per the sanctioned plan of 1928
was of 70 years and building requires demolition. In that
case such report was discarded and overlooked. This
Court does not find that this case is relevant for
decision of this appeal.
13. He further relies on the judgment in the case
Sadashiv Lakhuji Choudhary Vs. Laijabai Ramji Madavi &
Ors. reported in 2020 DGLS (Bom) 1269. It is held that
in the suit for declaration and mandatory injunction
alleging encroachment on the land, it was necessary to
produce map in view of Order VII Rule 3 of the CPC, where
the subject matter of the suit is immovable property.
( 13 ) sa306.04
There is no doubt about the said proposition. However,
in the present matter it not case of the plaintiff that
there is encroachment. There is also no prayer for
removal of encroachment or for possession. The direction
is only of removal of wire fencing that was put up 8 to
15 days prior to lodging of the suit. The defendants
could not show or establish that they are in possession
of the suit land. On the contrary, in their evidence
witness has specifically accepted that he has not
encroached upon the land of plaintiff. Their case is only
that the fencing is standing since last more than 40
years. However, they could not prove the said fact.
14. Mr. Kedar further relied upon judgment in the
case of Laxman Wamanrao Nagapure Vs. Shankar Haribhau
Adhau in SA No.123 of 2013. In that case the substantial
question of law was framed as to - whether the Courts
below were right in not directing re-measurement of the
suit field and the adjoining lands, by following due
procedure governing the measurements? It is held that it
( 14 ) sa306.04
was necessary to measure both the lands dividing boundary
marks to find out as to whether there is encroachment as
alleged at the hands of the defendants. Said case is not
applicable for the reasons already recorded.
15. He lastly relied upon judgment in the case of
Manohar Mahadeorao Pagrut Vs. Sunanda Ramdas Tharkar
reported in 2008 (3) Bom.C.R.4. Said judgment is
delivered in writ petition. In that case in a suit for
removal of encroachment Cadastral Surveyor admitted that
no permanent measurement mark was there on one side of
the land. In that view the defendant had applied for
fresh appointment of Commissioner to measure both the
lands. Said request was rejected and therefore the writ
petition was filed. It was directed to measure the land
afresh. This Court finds that this case is not applicable
and the Court need not consider the same in view of
substantial question of law already framed.
16. Learned Advocate Mr. Jamalpurkar relied upon
( 15 ) sa306.04
judgment in the case of Ramanuja Naidu Vs. V. Kanniah
Naidu & Anr., reported in (1996) 3 SCC 392 on the point
of scope of the second appeal. He further relied upon
judgment in the case of Laxmidevamma & Ors. Vs. Ranganath
& Ors., decided by the Hon'ble Apex Court in Civil Appeal
No.176 of 2015, wherein the Hon'ble Apex Court has held
that when both the Courts have recorded concurrent
finding of fact, no substantial question of law arises in
the High Court and there was no substantial ground for
reappreciation of evidence. The High Court still
proceeded to record finding of fact. It is held that it
was not permissible in exercise of jurisdiction under
section 100 of the CPC and the concurrent finding of fact
could not have been upset by the High Court unless same
is shown to be perverse. In the judgment in the case of
Hero Vinoth Vs. Seshammal decided by the Hon'ble Supreme
Court in Appeal (Civil) 4715 of 2000, it is held that the
question of law raised will not be considered as
substantial question of law, if it stands already decided
by a Larger Bench of the High Court concerned or by the
( 16 ) sa306.04
Privy Council or by the Federal Court or by the Supreme
Court, where the facts required for a point of law have
not been pleaded.
17. This Court finds that these judgments cited by
learned Advocate Mr.Jamalpurkar are applicable to the
present case. Considering all these submissions and the
record this Court finds that the suit was not for removal
of encroachment or for possession, but was simply for
removal of wire fencing. There is no material to show
that the cause of action had arisen to pray for relief of
possession. No grounds were also raised about Order VII
Rule 3 of the CPC. In any case considering the
substantial questions of law those were already framed
while admitting the appeal, this Court finds that it was
not necessary to claim possession and suit was
maintainable with prayer made in the plaint. As regards
second question, this Court finds that the findings of
the Appellate Court are not perverse and no interference
is called for.
( 17 ) sa306.04
18. The Second Appeal deserves to be dismissed and
same is dismissed with no order as to costs. In view of
dismissal of the Second Appeal, connected civil
applications do not survive and are disposed off
accordingly.
[KISHORE C. SANT, J.]
. At this stage, learned Advocate for the
appellant makes a request to continue the stay that was
in operation pending the appeal. Since the stay was
running for more than five years, same shall be continued
for further period of four weeks from today.
[KISHORE C. SANT, J.]
snk/2023/NOV23/sa306.04
