Bombay High Court
Arjun Pralhad Dhane vs State Of Maharashtra on 22 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4122
Sonali Mane 31-SA-27-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 27 OF 2024
WITH
INTERIM APPLICATION NO. 774 OF 2024
Arjun Pralhad Dhane & Anr. .. Appellants
Versus
State of Maharashtra & Ors. .. Respondents
...
Mr. Vishwanath S. Talkute for the Appellants.
...
CORAM : SANDEEP V. MARNE J.
DATE : 22 JANUARY 2024.
P. C.:-
1) The Appellants have filed the present Appeal challenging the
Judgment and Order dated 21 November 2022 passed by District Judge,
Pandharpur dismissing Regular Civil Appeal No. 26 of 2009 and confirming
the Decree dated 17 November 2008 passed by Civil Judge Senior Division in
Regular Civil Suit No. 42 of 2000.
2) Plaintiffs filed Regular Civil Suit No. 42 of 2000 for a declaration
that they are the owners in respect of suit property bearing Gat No. 161 of
Village Shegaon-Dumala, Tal. Pandharpur, District Solapur. Plaintiffs further
sought recovery of possession of suit property from Defendant Nos. 4 and 5.
Plaintiffs also sought mesne profit by the conduct of enquiry under Order 20,
Sonali Mane 31-SA-27-2024.doc
Rule 12 of the Code of Civil Procedure, 1908 (Code). In that suit, the
Appellants herein were impleaded as Defendant Nos. 4 and 5. The Trial
Court proceeded to decree Plaintiff's suit on 17 November 2008 declaring
Plaintiffs to be owners of suit property. Defendant No. 5 was directed to hand
over possession of the suit property to the Plaintiffs. Defendant No. 5 is also
directed to pay compensation of Rs.10,000/- for unauthorized possession of
the suit property. The Trial Court further directed enquiry in respect of
income derived out of suit property under Order 20, Rule 12 of the Code.
Defendant Nos. 1 to 3 were directed to effect necessary entries in the
revenue records in the name of Plaintiffs.
3) Aggrieved by the decree of the Trial Court Defendant Nos. 4 and
5 of the Regular Civil Appeal No. 26 of 2009 in District Court, Pandharpur.
The Appellate Court has however proceeded to dismiss the Appeal by its
Judgment and Order dated 21 November 2022. Aggrieved by the decisions of
the Trial Court and the first Appellate Court, Appellants, who are original
Defendant Nos. 4 and 5, have filed the present Appeal.
4) Mr. Talkute, the learned counsel appearing for the Appellants
would submit that the Trial Court and the first Appellate Court have erred in
holding Plaintiffs to be owners of suit property. That the case of the Plaintiffs
about ownership of suit property was premised on alleged allotment of land
towards resettlement benefits by the government authorities. That therefore
Plaintiffs ought to have produced the allotment order of suit property in their
name. That the burden of proof of allotment of suit property in their name
rested on the shoulders of Plaintiffs. That the Trial Court and the first
Appellate Court have erred in drawing surmise of ownership of Plaintiffs in
the absence of any concrete documents of title. That the Challan produced by
Plaintiffs was about payment of occupancy price in respect of earlier allotted
Sonali Mane 31-SA-27-2024.doc
land, which allotment was subsequently cancelled. That the said occupancy
price is not paid in respect of suit property. That the letter dated
31 March 1979 relied upon by Plaintiffs is about the choice to be exercised
by Plaintiffs for allotment of alternate land. That the third document relied
upon by Plaintiffs was in respect of intimation given by the Resettlement
Officer about taking over possession of the suit property. That the said letter
does not prove that the suit property is allotted in the name of Plaintiffs.
That even in the Register, extract of which is produced by Plaintiffs, cannot
be relied upon to prove allotment of land in the name of Plaintiffs. That the
entry made in the Register does not ipso-facto prove allotment of the suit
property in favour of Plaintiffs. In support of his contention. Mr. Talkute
would rely upon the judgment of the Apex Court in the City Municipal
Council Bhalki Vs. Gurappa (D) By LRs & Anr. 2015 (6) ALL MR 476
(S.C.) and Ramchandra Sakharam Mahajan Vs. Damodar Trimbak
Tanksale & Ors. (2007) 6 Mh.L.J. 609.
5) I have considered the submissions canvased by Mr. Talkute and
have gone through the Judgments of the Trial Court and the first Appellate
Court. No doubt, since the issue of ownership was framed by the Trial Court,
the burden of proving ownership of suit properties rested on the shoulders of
Plaintiffs. It is an admitted position that the suit property was initially
allotted in favour of Digambar Kashinath Dhane. It appears that the Mutation
Entry to that effect was effected in the name of Digambar Kashinath Dhane.
However by Order dated 10 October 1996, the allotment made in favour of
Digambar Kashinath Dhane was cancelled. Therefore, Digambar Kashinath
Dhane, through his Power of Attorney Holder Dnyaneshwar Bhagwan Borate
(Appellant No. 2) instituted Regular Civil Suit No. 61 of 1996 in the Court of
Civil Judge Senior Division, Pandharpur. During the pendency of the suit,
Digambar Kashinath Dhane expired and therefore Arjun Pralhad Dhane
Sonali Mane 31-SA-27-2024.doc
(Appellant No.1) was brought on record as his legal heir. However, Regular
Civil Suit No. 61 of 1996 came to be dismissed by Judgment and Order dated
24 April 2002. Thus cancellation of allotment of Digambar Kashinath Dhane
attained finality.
6) On the other hand, on account of the acquisition of the property
at Village Javalgaon, Rama Daji Navale became project affected person, and
accordingly, land bearing Survey Nos. 9/6, 20/2/B and 59/1 were selected
by him as alternate land. Purchase price of Rs.1612/- was paid for allotment
of the alternate land. However, it transpired that the land which was selected
by Rama Daji Navale was already allotted to someone else. Therefore by
letter dated 31 March 1979. Rama Daji Navale was called upon to select
alternate land. Accordingly, the suit property came to be allotted to Rama
Daji Navale and he was called upon to take possession thereof on
16 October 1982 by the Resettlement Officer.
7) This is how the suit property which was originally allotted in the
name of Digambar Kashinath Dhane came to be allotted in the name of
Rama Daji Navale. The suit filed by Digambar Kashinath Dhane challenging
the cancellation of allotment has been dismissed. Thus cancellation of
allotment of suit property in the name of Digambar Kashinath Dhane has
attended finality. Defendant Nos. 4 and 5 therefore cannot claim any
ownership in respect of the suit property.
8) Faced with the difficulty of dismissal of Regular Civil Suit
No.61 of 1996 thereby attaining finality to the cancellation of allotment
order, Defendant Nos. 4 and 5 expected Plaintiffs to conclusively prove their
title to the suit property. According to Mr. Talkute, it was incumbent upon the
Plaintiffs to produce a letter of allotment in respect of the suit property,
Sonali Mane 31-SA-27-2024.doc
which is the only authentic proof of ownership in the facts of the present
case. Though Mr. Talkute cannot be entirely faulted for contending that the
letter of allotment ought to have been produced by the Plaintiffs, I do not
find any serious error on the part of the Trial Court and the first Appellate
Court in recording the finding of ownership by Plaintiffs in respect of suit
property by relying on two documents. The first document is in the form of a
letter dated 31 March 1979 granting possession of the suit property to
Plaintiffs. The second document is in the form of a Land Acquisition Register.
The register carries entries of cancellation of allotment made in the name of
Digambar Kashinath Dhane and allotment of the land in the name of Rama
Daji Navale. Both the documents conclusively prove that Rama Daji Navale
has been allotted the suit properties.
9) Reliance of Mr. Talkute on the judgments of the Apex Court in
City Municipal Council Bhalki (supra) does not assist the case of the
Appellants. In that judgment, the Apex Court has reiterated the settled law
that Plaintiffs must prove their title independently and a decree in his favour
cannot be awarded only for the reason of Defendants failing to prove their
title. The Apex Court has relied on its previous judgment in R.V.E.
Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple &
Anr., (2003) 8 SCC 752 in which it is held as under:
"In our opinion, in a suit for possession based on title once the plaintiff has
been able to create a high degree of probability so as to shift the onus on the
defendant it is for the defendant to discharge his onus and in the absence
thereof the burden of proof lying on the plaintiff shall be held to have been
discharged so as to amount to proof of the plaintiffs title."
Thus once the Plaintiffs create a high degree of probability of title in a suit
for possession, the onus shifts on the Defendants, and in the absence of
Sonali Mane 31-SA-27-2024.doc
Defendants discharging the burden, the Plaintiffs are entitled to seek
possession based on title. Also Mr. Talkute's reliance on the Judgment of the
Apex Court in Ramchandra Sakharam Mahajan (Supra) does not take case
of his clients any further. The Judgment, far from assisting the case of
Appellants, actually militates against them. In para 13 of the judgment, the
Apex Court held as under:
"13. The suit is for recovery of possession on the strength of title. Obviously, the
burden is on the plaintiff to establish that title. No doubt in appreciating the
case of title set up by the Plaintiff, the Court is also entitled to consider the
rival title set up by the defendants. But the weakness of the defence or the
failure of the defendants to establish the title set up by them, would not enable
the plaintiff to a decree. There cannot be any demur to these propositions."
Thus in a suit for possession based on title, the Court is not prohibited from
considering the rival title set up by Defendants. True it is that Defendants'
failure to prove his title cannot alone be a reason to assume title in favour of
Plaintiffs. However, once the Plaintiffs set up a credible case of title and the
Defendants are unable to dispel the high degree of probability of title in
favor of the Plaintiffs, the Court is entitled to draw presumption of title at
least qua the Defendants.
10) In the present case, Defendant Nos. 4 and 5 have no semblance
of title in the suit property since the Regular Civil Suit No.61 of 1996
instituted by them challenging cancellation of allotment has been dismissed.
On the other hand, though the allotment letter itself is not produced by the
Plaintiffs, they have created a high degree of probability of ownership on the
strength of the possession letter and entries in the land acquisition register.
11) After considering the entire evidence on record, the Trial Court
and the first Appellate Court have correctly recorded findings of fact in
Sonali Mane 31-SA-27-2024.doc
which this Court is not supposed to interfere in the exercise of jurisdiction
under Section 100 of the Code. No substantial question of law is involved in
the Appeal. The Second Appeal is accordingly rejected.
12) In view of rejection of Second Appeal, Interim Application No.
774 of 2024 does not survive. The same also stands disposed of.
SANDEEP V. MARNE J.
