Bombay High Court
Tanaji Saibu Bodre And Ors vs Tukaram Rau Bodre(Since Decd.Thr.Lrs) ... on 28 November, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:35265
56-sa670-2022 with sa-671-2022.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.670 OF 2022
Tanaji Saibu Bodre & Ors. ... Appellants
V/s.
Tukaram Rau Bodre Since Deceased
Through Legal Heirs & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.19062 OF 2022
IN
SECOND APPEAL NO.670 OF 2022
Tanaji Saibu Bodre & Ors. ... Applicants
V/s.
Tukaram Rau Bodre & Ors. ... Respondents
WITH
SECOND APPEAL NO.671 OF 2022
Tanaji Saibu Bodre & Ors. ... Appellants
V/s.
Vijay Shivling Mali & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.19064 OF 2022
IN
SECOND APPEAL NO.671 OF 2022
Tanaji Saibu Bodre & Ors. ... Applicants
V/s.
Vijay Shivling Mali & Ors. ... Respondents
Mr. Abhinandan B. Vagyani i/by Mr. Pankaj Kandhari
and Ms. Deepa A. Vagyani for appellant/applicant.
Mr. Kuldeep U. Nikam for respondent Nos.3 and 4.
1
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CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 28, 2023
P.C.:
1. Since both the second appeals arise out of common
judgments delivered by the Courts below and the subject matter of
appeals is same, both are being disposed of by common judgment.
2. For the sake of convenience, the status of the parties in suit
for possession i.e. R.C.S. No.350 of 1990 is quoted.
3. The appellants are original defendants. The plaintiffs filed
R.C.S. No.350 of 1990 seeking possession of suit properties based
on title. According to the plaintiffs, suit properties Survey No.31
and 32 were owned by Hari Ramji Patil. The plaintiffs' predecessor
i.e. Rau Rama Bodre purchased suit properties from Hari Ramji
Patil in 1918. Rau Rama Bodre died in 1959. According to the
plaintiffs, after the death of Rau Rama Bodre, the defendants got
their names in revenue records and came in possession of the suit
properties. According to the plaintiffs, they have become owners of
the suit properties by succession. On 1st December 1991, plaintiff
Nos.1 and 2 sold suit properties to plaintiff Nos.3 and 4. With the
result, plaintiff Nos.3 and 4 become owner of the suit property.
4. The defendants (appellants) filed a written statement
claiming ownership over the suit properties. According to the
defendants, their predecessor (Saibu) was having ownership rights
along with Rau Rama Bodre but Rau Rama Bodre was karta of
joint family, his name continued in revenue records. The
defendants further pleaded that they are in open possession of the
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suit properties for more than seventy years and, therefore, have
become owners by adverse possession.
5. The defendants (appellants) filed Regular Civil Suit No.1 of
1995 seeking injunction against the plaintiffs not to disturb their
possession over the suit properties without following due process
of law.
6. The Trial Court, by judgment and decree dated 18th February
2012, decreed Regular Civil Suit No.350 of 1990 directing delivery
of possession of suit property in favour of the plaintiffs. Appellants'
suit for injunction was partly decreed against Vijay and Vinayak
restraining them from disturbing appellants' possession without
following due process of law.
7. The appellants filed Regular Civil Appeal No.203 of 2012
and Regular Civil Appeal No.204 of 2012 challenging judgment
and decree passed in Regular Civil Suit No.350 of 1990 and
Regular Civil Suit No.1 of 1995. The Appellate Court, by the
impugned judgment, dismissed both the appeals.
8. Learned advocate for the appellants submitted that there is
no evidence on record to indicate that plaintiff Nos.1 and 2 are the
heirs and legal representatives of original owner Rau Rama Bodre.
According to him, the defendants are in possession for more than
seventy years and, therefore, they are entitled to protect their
possession based on concept of adverse possession.
9. I have considered the judgment and orders passed by the
Courts below and the pleadings of the parties and evidence
produced on record. The Courts below framed a specific issue as to
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whether the plaintiffs proved that they are heirs and legal
representatives of Rau Rama Bodre. The plaintiffs produced on
record voters list (Exhibit-175) which indicates that at Serial
No.819, name of plaintiff No.1 Tukaram has been mentioned as
"Tukaram Rau Bodre". Moreover, plaintiffs produced on record
school leaving certificate which indicates plaintiff No.1's name as
"Tukaram Rau Bodre". The date of birth is shown as 18 th February
1924. The said school leaving certificate is duly proved through
P.W.-3. Moreover, plaintiffs examined. Laxman Siddhappa (P.W.-6)
who deposed that he has profession of maintaining genealogy. He
deposed that as per his genealogy, plaintiffs' father was Rau Rama
Bodre. The Appellate Court based on voters list, school leaving
certificate, genealogy and evidence of P.W.-3 recorded a finding
that plaintiff Nos.1 and 2 are the heirs and legal representatives of
Rau Rama Bodre. There is no serious dispute about the fact that
Rau Rama Bodre purchased Survey No.31 and 32.
10. The defendants failed to adduce evidence to indicate that
their predecessor-in-title was co-owner along with Rau Rama
Bodre. Therefore, the finding of fact recorded by the Courts below
that the plaintiffs are owners of the suit property is based on
admissible evidence.
11. Once the plaintiffs prove their ownership over the suit
property, it is for the defendants to prove their status to hold
immovable property. To protect such possession, defendants tried
to raise plea of adverse possession. On perusal of the pleadings, it
appears that the plea raised by the defendants in the written
statement is not sufficient to frame issue of adverse possession.
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The necessary ingredients of adverse possession are not pleaded in
the written statement. Moreover, the defendants in the earlier part
of the written statement disputes the ownership of the plaintiffs
and claims co-ownership of the property. The essential ingredients
of adverse possession and the date or the period when the
defendants' possession become hostile has not been pleaded or
proved by the defendants. Therefore, the Courts below rightly
decreed suit for possession of title.
12. In so far as the suit of the appellants for injunction
restraining the respondents from disturbing possession of the suit
property is concerned, since the plaintiffs have filed suit for
possession, it amounts to due process of law and, therefore, the
plaintiffs in R.C.S. No.350 of 1990 are entitled to possession of the
suit property.
13. The finding of the plaintiffs ownership is based on admissible
material, the defendants having failed to prove right to continue
with possession, in my opinion, no substantial question of law
involved.
14. The second appeals are dismissed. No costs.
15. In view of dismissal of the second appeals, the interim
applications do not survive and the same stand disposed of.
16. The appellants are entitled to remain in possession for period
of four weeks to enable them to approach Apex Court.
(AMIT BORKAR, J.)
