Bombay High Court
Dr.Vimal Uttamrao Dhere vs Maruti Bhau Kale on 1 February, 2024
2024:BHC-AUG:2739
Judgment-SA-99-1995.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 99 OF 1995
WITH CA/1416/1995
Sau. Dr. Vimal Uttamrao Dhere,
Age Major, Occ: Medical Practitioner,
R/o. Rashin, Tq. Karjat,
Dist. Ahmednagar ...Appellant
(Orig. Defendant)
Versus
Maruti Bhau Kale,
Age Major, Occ. Agri,
R/o. Kalewadi Rashin,
Tq. Karjat, Dist. Ahmednagar ...Respondent
(Orig. Plaintiff)
...
Mr. P. S. Dighe h/f Mr. V. R. Dhorde, Advocate for
Appellants
...
CORAM : R.M. JOSHI, J
RESERVED ON : JANUARY 22, 2024
PRONOUNCED ON : FEBRUARY 01, 2024
JUDGMENT :
1. This appeal is filed under Section 100 of Code
of Civil Procedure takes exception to the judgment and
decree dated 23.08.1994 passed in RCA No. 38/1988
whereby the judgment and decree passed by the Trial
Court in RCS No. 64/1985 dated 30 th December, 1987 is
reversed. This suit was dismissed by the trial Court,
which came to be decreed by the First Appellate Court.
Judgment-SA-99-1995.odt
2. Parties are referred to by their nomenclature
in the original proceedings for the sake of
convenience.
3. Facts which led to the filing of the present
appeal can be summarized as under:
Plaintiff filed suit for simplicitor
injunction restraining Defendant from obstructing his
possession over 3R land from survey nos. 81/2B (Old
Survey No. 120) towards western side of Jagdamba
Hospital. It is the case of the Plaintiff that Old
Survey No. 120 was owned and possessed by him with co-
sharers. The said land admeasured 1H 86R. Out of the
said common land, Plaintiff purchased 1½ Acre land from
Shankar Kale and Others on 03.04.1975. Thereafter,
Plaintiff sold 57R land from the said land to Defendant
on 08.09.1977 by executing sale deed. Because of the
said transaction, original survey no. 120 was
renumbered as 120/1 and 120/2. It is further claimed
that Defendant from the co-sharer has purchased other
portion of the said property and since then properties
are known as 120/2 as 120/2/A and 120/2/B. Plaintiff
has claimed 1/9th share in the said property in common.
Judgment-SA-99-1995.odt
It is further averred in the plaint that after purchase
of new survey no. 81/1 converted agricultural land into
non-agriculture land and constructed Jagdamba Hospital
therein. It is claimed that towards southern corner of
the hospital there is shed and next to the said shed 3R
land from common, owned by the Plaintiff is situated.
It is alleged that without there being any right in
respect of the said property, Defendant has obstructed
act of the Plaintiff of digging foundation for the
purpose of construction of the house, hence, suit came
to be filed.
4. Defendant filed written statement at Exh. 16
wherein it is specifically claimed that Defendant is
the owner of the land purchased from the Plaintiff and
he has been handed over the possession thereof in terms
of sale deed. It is denied that any land is situated
towards western side of the land of the Defendant and
his hospital. It is claimed that description of the
property in sale deed executed between the parties
clearly shows that the land belonging to the Plaintiff
did not exist towards western side as there was road
towards the said side.
Judgment-SA-99-1995.odt
5. Learned Trial Court framed issues at Exh. 29
and burden was cast on the Plaintiff to prove that he
is owner and possession of the suit land and is
entitled for injunction as asked for.
6. Plaintiff examined himself at Exh. 30. He
relied upon various documents i.e., 7/12 extract and
mutation entries including sale deed Exh. 41. Plaintiff
also examined Namdeo Kale at Exh. 34 from whom
Plaintiff has purchased land being known as erwad patti
bearing survey no. 120/B in the year 1975. Similarly,
Dattatraya Kale was examined at Exh. 35. Defendant did
not enter witness box and no oral or documentary
evidence was led.
7. Learned Trial Court by passing judgment and
decree has held that Plaintiff is owner and in
possession of the suit land, however, has failed to
prove the obstruction being caused by Defendant and
hence, ultimately suit was dismissed.
8. First Appellate Court in its judgment has
concurred with findings recorded by the trial Court
with regard to the ownership and possession of the
Judgment-SA-99-1995.odt
Plaintiff over the suit property/land and decreed the
suit by granting injunction. It is specifically
observed by the First Appellate Court that the findings
recorded by the trial Court with regard to the
ownership and possession of the Plaintiff over the suit
property has not been taken exception to by the
defendant by filing Appeal or cross-objection.
9. Learned Counsel for the Defendant submits that
since the suit filed by the Plaintiff was dismissed
there was no occasion/reason for the Defendant to
challenge the findings recorded by the trial Court with
regard to the ownership and possession of the Plaintiff
over the suit land as no decree was passed to that
effect. It is his submission that in this Appeal if the
Defendant is able to show that the findings recorded by
the both Courts below on this issue are perverse, then
such findings can be interfered with. By referring to
the pleadings of the parties and evidence led before
the trial Court, it is contended that Plaintiff has
admitted the transaction of sale between him and
Defendant in respect of 57R land and also conceded to
the fact that the Defendant after converting the said
Judgment-SA-99-1995.odt
agricultural land into non-agriculture has constructed
the hospital thereon. He has drawn attention of this
Court to the sale deed Exh. 41 which provides
description of the property which was sold in favour of
the Defendant. According to him, said document
indicates that to the western side of the land sold to
the defendant there is road and hence, question of
existence of land of Plaintiff to that side does not
arise. He further drew attention of the Court to the
evidence of Plaintiff wherein he has admitted about
Defendant being put in possession of the land purchased
by him in accordance with sale deed. Thus, it is his
submission that both Courts below have committed error
in misreading/mis-construction of document and same
amounts to substantial question of law and hence,
Appeal deserves to be allowed by setting aside judgment
and decree passed by the First Appellate Court. He
placed reliance on judgment of this Court in case of
Temple of Maruti Vs Balkrisna Suryaji S. Kakodkar and
Another, 1998(3) ALL MR 403.
10. This Appeal came to be admitted on 24.02.1995
and the substantial question of law was formulated as
Judgment-SA-99-1995.odt
to the construction of the document with reference to
the area sold.
11. At the outset, this Court is required to take
into consideration the fact that the Defendant did not
challenge the findings recorded by the trial Court with
regard to the ownership and possession of the Plaintiff
over the suit land by filing any cross-objection or
Appeal. In this regard, it is pertinent to note that
there was no decree passed by trial Court declaring the
ownership of the Plaintiff over the suit land though
finding was recorded and as such, there was no occasion
for the Defendant to prefer any Appeal or cross-
objection in order to challenge the same. However, it
was open for Defendant to take exception to the
findings recorded against him by Trial Court i.e., in
the instant case finding about Plaintiff having
succeeded to prove ownership and possession over suit
land. Record does not indicate any such challenge is
raised by Defendant before First Appellate Court. In
this Second Appeal it is not open for Defendant to
challenge the said findings recorded by the Courts
below on facts but a limited challenge is permissible
Judgment-SA-99-1995.odt
if Defendant shows that the said findings arrived at by
both Courts are contrary to material on record or wrong
inferences are drawn from proved facts. Of course it is
also open to challenge the misconstruction of document,
if done by these Courts.
12. At this stage, it is apposite to refer to the
judgment of Hon'ble Apex Court in case of Nazir Mohamed
Vs. J. Kamala and Others, (2020) 19 SCC 57, wherein
substantial question of law in the context of a
document is dealt with and decided to state that:
33.1 An inference of fact from the
recitals or contents of a document is a
question of fact, but the legal effect of
the terms of a document is a question of
law. Construction of a document, involving
the application of any principle of law, is
also a question of law. Therefore, when
there is misconstruction of a document or
wrong application of a principle of law is
construing a document, it gives rise to a
question of law.
Thus, inference of fact drawn in respect of sale
deed (Exh. 41) in the present case would be a question
of fact. It is only in case of legal effect of term of
said document that constitutes question of law.
Judgment-SA-99-1995.odt
13. Even existence of question of law is not
sufficient to entertain second appeal as such question
must be a substantial question of law. From various
pronouncements of Supreme Court term substantial
question of law is well established to say that
The question of law raised will not be
considered as a substantial question of
law, if it stands already decided by a
larger Bench of the High Court concerned or
by the 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, a litigant should not be
allowed to raise that question as a
substantial question of law in second
appeal. Mere appreciation of facts, the
documentary evidence or the meaning of
entries and the contents of the documents
cannot be held to be raising a substantial
question of law. But where it is found that
the first appellate court has assumed
jurisdiction which did not vest in it, the
same can be adjudicated in the second
appeal, treating it as a substantial
question of law. Where the first appellate
court is shown to have exercised its
discretion in a judicial manner, it cannot
be termed to be an error either of law or
of procedure requiring interference in
second appeal.
14. It is also trite that as a general rule High
Court will not interfere with concurrent findings of
Courts below except where material on record is
Judgment-SA-99-1995.odt
ignored, wrong inferences are drawn from proved facts.
Keeping in mind above settled principles of law,
contentions raised by Defendant are considered.
15. There is specific pleading in the plaint
describing the suit property as 3R land towards the
southern side of shed constructed thereof. The
Plaintiff also filed map along with to indicate
location thereof.
16. In the instant case, there are certain facts
which are not in dispute such as Plaintiff is the owner
and in possession of remaining land of Survey No. 120
along with other co-sharers. Defendant has purchased
57R land from Plaintiff. Evidence of the witnesses
examined by Plaintiff shows that the land sold to the
Defendant is a strip of land east to west. It is also
confirmed that the possession of the land was assigned
to the Defendant in accordance with the sale deed. In
this regard, perusal of the sale deed Exh. 41 indicates
that towards southern side of the land belonging to the
Defendant there is part of old Survey No. 120. The said
description of the land sold to the Defendant proves
that towards southern side of the land belonging to the
Judgment-SA-99-1995.odt
Defendant land of Plaintiff exists. It is pertinent to
note that the Defendant has specifically claimed
ownership from the said part of the Survey No. 120 with
description that 3R land is abutted to the shed
constructed by Defendant towards southern side of its
land. It is not the case wherein Defendant alleged any
encroachment against Plaintiff on his land. Plaintiff
on the basis of oral as well as documentary evidence
has established that even after sale of the land
admeasuring 57R to the Defendant certain portion of
Survey No. 120 remained in his possession as owner
thereof. Plaintiff, therefore, has discharged initial
burden on him to prove the ownership and possession in
respect of the suit land. Admittedly, Defendant has not
entered in the witness box or his led any evidence in
order to rebut the evidence led by the Plaintiff.
17. Coming to the submissions made on behalf of
Defendant about misinterpretation of the document i.e.
sale deed Exh. 41, it is pertinent to note that the
said sale deed indicates about existence of portion of
land from Survey No. 120 towards southern side of the
land belonging to the Defendant. Thus, there is no
Judgment-SA-99-1995.odt
question of misinterpretation of document on the part
of trial Court as well as First Appellate Court while
arriving at the conclusion that Plaintiff has succeeded
in proving his ownership and possession over the suit
land. In view of the settled position of law with
regard to the substantial question of law on the point
of construction of the document, the interference drawn
of the fact that from the sale deed could not be
considered as substantial question of law. It is only
in case of legal effect of the said terms of sale deed
that would constitute a question of law. In this case
on both counts this Court finds no error committed by
Courts below in interpreting sale deed in the light of
pleadings and evidence on record to reach to the
conclusion about Plaintiff having succeeded to prove
his case. The said concurrent finding of fact being not
perverse and in ignorance or contrary to the material
evidence on record, cannot be interfered with in this
Appeal.
18. As far as grant of injunction against the
Defendant is concerned, the fact that even in absence
of any plea being raised by the Defendant about any
Judgment-SA-99-1995.odt
encroachment being sought to be done by the Plaintiff
on his property, the suit is sought to be resisted. The
said resistance by the Defendant itself indicates about
there being substance in the contention of the
Plaintiff in this regard. Apart from this, it is
pertinent to note that Plaintiff has pleaded about the
obstruction caused by the Defendant and in support of
the same, evidence of witness is also led. The fact of
obstruction caused by the Defendant is required to be
proved by Plaintiff on preponderance of probability,
which Plaintiff has succeeded in proving. In absence of
any rebuttal on the part of the Defendant, learned
trial Court was not justified in refusing the
injunction sought by the Plaintiff. Learned First
Appellate Court, therefore, has rightly corrected error
committed by the Trial Court in rejecting the relief of
injunction.
19. In view of above discussion, this Court find
that there is no substantial question of law involved
in this Appeal. Though Appeal was admitted by
formulating substantial question of law with regard to
the construction of the document, this Court find no
Judgment-SA-99-1995.odt
error committed by both Courts below in
construction/interpretation of the same. Since no
perversity is found with regard to recording reasons by
both Courts below, the same does not require
interference in this Appeal. In the result, Appeal
stands dismissed. Pending applications are also
disposed of.
(R. M. JOSHI, J.)
1. After pronouncement of judgment, learned
Counsel for the Appellant seeks continuation of interim
relief for the period of eight weeks.
2. None for other side.
3. In view of the fact that the interim relief is
running since year 1995, same is extended as prayed
for.
(R. M. JOSHI, J.)
Malani
