Bombay High Court
Baban@ Vijaykumar Ganpatrao ... vs Mahadeo Dhondiram Patil ... on 5 February, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:5651
Neeta Sawant 1/4 4-SA-61-2020.docx
Monday, 5 February 2024.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 61 OF 2020
WITH
INTERIM APPLICATION NO. 281 OF 2023
Shri. Baban @ Vijaykumar
Ganpatrao Patil ....Appellant
(Orig.Defd. No.1)
V/s.
Mahadeo Dhondiram Patil
(Deceased thr. LRS.) and Ors. ....Respondents
(No.1-Orig.Plff,
No.2-Orig.Defd No.2)
________
Mr. Pratap Patil, for the Appellant.
Mr. Ashutosh M. Kulkarni a/w. Mr. Akshay Kulkarni, for
Respondent Nos.1A to 1D.
_________
CORAM : SANDEEP V. MARNE, J.
Dated : 5 February 2024.
P.C. :
1. By this Appeal, the Appellant challenges the Judgment and
Decree dated 11 April 2018 passed by the District Court, Sangli in
Regular Civil Appeal No. 105 of 2009 thereby confirming the Decree
Neeta Sawant 2/4 4-SA-61-2020.docx
Monday, 5 February 2024.
dated 5 March 2009 passed by the Civil Judge Junior Division, Palus in
Regular Civil Suit No. 143 of 2008.
2. Plaintiff instituted Regular Civil Suit No. 143 of 2008 seeking a
declaration that the suit land admeasuring 4 Ares is in his possession
and seeking injunction against the Defendant from obstructing his
possession over the suit property. Plaintiff also sought consequential
declaration of ownership in respect of the suit property. It appears that
by virtue of registered partition deed executed on 4 June 1965, half
portion of the land bearing City Survey No. 458/A admeasuring 49
Ares came to the share of the Plaintiff. After such partition, Plaintiff's
father executed Agreement for Sale in favour of Defendant's father on 4
September 1974 agreeing to sell the suit property admeasuring 4 Ares
to Defendant's father. It is admitted position that the said Agreement
for Sale has not culminated into a Sale-Deed. It is Defendant's case
that in addition to the Agreement for Sale, a separate agreement was
executed on the same day i.e. on 4 September 1974 by which
Defendant's father was put in possession of the suit property by
Plaintiff's father. On the strength of the said Agreement dated 4
September 1974, the Defendant claims possession over the suit
property. On the contrary, it is Plaintiff's case that his father did not
have any authority to execute Agreement for Sale or the possession
receipt dated 4 September 1974 in favour of Defendant's father. The
Trial Court has proceeded to decree Plaintiff's suit on 5 March 2009
holding that the Plaintiff continued to remain owner of the suit
property. A finding of fact of possession of the suit property by the
Neeta Sawant 3/4 4-SA-61-2020.docx
Monday, 5 February 2024.
Plaintiff is also recorded by the Trial Court. The first Appellate Court
has dismissed Defendant's Appeal by Judgment and Order dated 11
April 2018.
3. Mr. Patil, the learned counsel appearing for the Appellant would
submit that the Plaintiff admitted execution of the possession receipt
dated 4 September 1974. He would also invite my attention to the
deposition of Plaintiff's witness in cross-examination wherein he
admitted that the suit property was being used by the Defendants as a
courtyard in front of the house. It is Mr. Patil's contention that in view
of proof of possession receipt coupled with the deposition of Plaintiff's
witness, the Trial and the first Appellate Court ought to have upheld
Defendant's claim of possession. He would submit that even if the
Defendants have not acquired title in respect of the suit property, their
possession thereof has undoubtedly been proved. He would therefore
criticize the Trial and the first Appellate Court for granting the relief of
injunction in favour of the Plaintiff.
4. In my view, Plaintiff's father did not have any authority to
execute the Agreement for Sale in respect of the suit property in favour
of the Defendant's father as he lost title and possession of the entire
property after execution of the registered partition deed dated 4 June
1965. Mr. Patil fairly admits this position that Plaintiff's father could
not have transferred title in respect of the suit property in favour of
Defendant's father. In that view of the matter, the next question is
whether the Plaintiff's father who had no title could have created
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Monday, 5 February 2024.
possessory right in favour of the Defendant's father ? The answer to
this question is obviously in the negative. Plaintiff's father did not
have any authority to execute possession receipt of the suit property in
favour of Defendant's father. Therefore, even if the execution of the
possession receipt is admitted, in absence of any authority to deliver
possession by Plaintiff's father, the said receipt would not create any
right of possession by the Defendants. So far as deposition of Plaintiff's
witness, Mr. Dilip Balkrishna Nikam is concerned, he has merely
admitted that Defendants used the suit property as courtyard. It has
come in evidence that Defendants have not constructed anything on
the suit property. Therefore, even if it is assumed for the sake of
arguments that Defendants or their family members entered upon the
suit property and used the same as courtyard in front of their house,
the same would not imply exclusive possession thereof by the
Defendants.
5. In my view, the Trial and the first Appellate Court have
correctly appreciated the evidence on record for the purpose of holding
that the Defendants have not acquired either title or possessory rights
in respect of the suit property. No serious error can be traced in the
view taken by the Trial and the first Appellate Court. No substantial
question of law is involved in the Appeal. The Appeal is accordingly
rejected. Interim Application taken out therein stands disposed of.
SANDEEP V. MARNE, J.
