Bombay High Court
Shri. Shamrao Mhadu Patil And Ors vs Shri. Rajaram Bapu Jadhav And Ors on 30 March, 2023
Bench: Madhav J. Jamdar
2023:BHC-AS:10060
904.SA.856.22.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.856 OF 2022
WITH
INTERIM APPLICATION NO. 2613 OF 2023
IN
SECOND APPEAL NO.856 OF 2022
Shri. Shamrao Mhadu Patil & Ors. ...Appellants/
Applicant
Versus
Shri. Rajaram Bapu Jadhav & Ors ....Respondents/
Respondent
Mr. Ruturaj Pawar, for the Appellants/Applicants.
CORAM : MADHAV J. JAMDAR, J.
DATE : 30th MARCH, 2023
P.C.:
1. Heard Mr. Pawar, learned counsel appearing for the
Appellant who is the Original Defendant.
2. The Appellant by the present Second Appeal is challenging
legality and validity of Judgment and Decree dated 15 th April,
2014 passed by learned 13th Joint Civil Judge, Junior Division,
Kolhapur in Suit bearing RCS No. 736 of 2011 as well as
Judgment and Decree dated 1st December, 2021 passed by
learned District Judge No. 4, Kolhapur in Regular Civil Appeal No.
247 of 2017.
3. Mr. Pawar submitted that the following substantial question
904.SA.856.22.doc
of law is involved in this Second Appeal :
"Whether the Plaintiff has given proper description of
the Suit Property and whether the Plaintiff has proved
the area and boundaries of the Suit Property. "
4. In this particular case the Plaintiff has given Gram
Panchayat property number as well as number of open plots
situated at Mauje. Andur, Tal- Gaganbavada, Dist- Kolhapur. The
Plaintiff has also set out boundaries of the property. The Plaintiff
has laid his own evidence and offered himself for cross-
examination. He has been cross-examined extensively. However
nothing has been brought on record to point out that, the
description of the suit property is not proper. It is the settled legal
position that, if there is variance between the area of the suit
property and boundaries then, the boundaries shall prevail. In
this particular case, the Gram Panchayat Milkat Property No. 87,
88 and 89 which are the residential houses are mentioned by the
Plaintiff as suit properties as well as open lands in and around the
said houses which are given Property Nos. 87/1, 88/1 and 89/1
are also mentioned in the Plaint. He has also given the boundaries
of the suit properties as more particularly set out in the plaint.
Therefore, the said boundaries will prevail.
5. It is the admitted position that, although, Defendants have
filed written statements they have not laid any evidence.
904.SA.856.22.doc
Therefore, the learned Trial Court and the learned First Appellate
Court have held that the adverse inference is required to be
drawn against the Defendants.
6. Both the Courts have concurrently held that, the Plaintiffs
proved the possession over the suit property and, therefore,
granted injunction. Although it is the claim of the Defendants that
they are the owners of certain portion of the suit property, no
evidence is laid by them and therefore, rightly adverse inference
is drawn by the learned Trial Court as well as Learned First
Appellate Court against them.
7. Therefore there is no substance in the substantial question
of law raised by Mr. Pawar, learned counsel appearing for the
Appellant.
8. The Second Appeal is dismissed however, with no order as
to costs.
9. In view of dismissal of Second Appeal, nothing survives in
the Interim Application and the same is also dismissed.
(MADHAV J. JAMDAR, J.)
