Bombay High Court
Maruti Balu Yadav Deceased vs The Collector Sangli on 23 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:3992
Ganesh Lokhande, PA 1/5 903-SA-726-2023+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 726 OF 2023
WITH
INTERIM APPLICATION NO. 584 OF 2024
WITH
INTERIM APPLICATION NO. 831 OF 2024
IN
SECOND APPEAL NO. 726 OF 2023
Maruti Bala Yadav deceased & Anr. .. Appellants
vs.
The Collector Sangli & Ors. .. Respondent
...
Mr. B. R. Mandlik a/w., Rati S. Sinhasane, for the Appellants.
Ms. Tanaya Goswami, for the Respondents.
...
CORAM: SANDEEP V. MARNE, J.
DATE : 23rd JANUARY, 2024.
P. C.:
1. By this Appeal, the Appellants challenge Judgment and
Order dated 29th August, 2023 passed by District Court, Sangli
dismissing Regular Civil Suit No.202 of 2013 and thereby
confirming the Decree dated 25th February, 2013 passed by Civil
Judge, Senior Division, Sangli.
2. Plaintiffs have instituted Regular Civil Suit No. 311 of
2004, seeking declaration that a suit property bearing Survey No.
440/Gat No. 1625, village Kadepur, Taluka-Kadegaon, District-
Ganesh Lokhande, PA 2/5 903-SA-726-2023+.doc
Sangli is in their possession and seeking injunction against the
Defendants for causing obstruction to Plaintiffs' possession of suit
property. Government Authorities were impleaded as Defendants to
the Suit. The trial Court refused to believe that the suit property is
in possession of the Plaintiffs and proceeded to dismiss Regular
Civil Suit No. 311 of 2004 by Decree dated 25 th February, 2013.
The First Appellate Court has confirmed the Decree of the trial
Court by dismissing Appellants' Regular Civil Appeal No. 202 of
2013. Aggrieved by the decisions of the trial Court and First
Appellate Court, Appellants have filed the present Appeal.
3. I have heard Mr. Mandlik, learned counsel appearing for
the Appellants and Ms.Goswami, learned AGP appearing for
Respondent Nos. 1 to 3.
4. After having considered the submissions canvassed by
the learned counsel appearing for parties, it is seen that the
Plaintiffs' claim of possession over the suit property is premised on
entry made in the revenue record pertaining to the year 1943-44
and 1944-45. The trial Court has however held that in the
cultivation column of the suit property, after the year 1953-54, the
entry "Nil" is made in cultivation column and entries "ljdkjh
caxY;kdMs" and "LVksj dMs" are made in the revenue records. Based on
the revenue entries, the trial Court and the First Appellate Court
have refused to believe that Plaintiffs are in possession of the suit
Ganesh Lokhande, PA 3/5 903-SA-726-2023+.doc
property since the year 1943-44. Another factor considered by the
trial Court and the First Appellate Court is handing over of
possession of the suit property in favour of the Plaintiffs through
auction conducted in the year 1971. Before I consider the exact
effect of handing over of possession through that auction, it must
be borne in mind that the very factum of taking over possession of
the suit property through auction conducted in the year 1971
would belie the theory of Plaintiffs' possession of the suit property
since the year 1943-44. If they were indeed in possession of suit
property from 1943-44, there was no question of handing over
possession once again in the year 1971.
5. Turning to the exact effect of the letter dated 3 rd June,
1971, it is seen that the auction was conducted by the Deputy
Engineer, Building and Project, Sub Division, Vita for the purpose
of cultivating the suit property only for the year 1971. The subject
of the letter dated 3rd June, 1971 clearly states that the auction was
for the purpose of granting land for cultivation only for the year
1971. Therefore, letter dated 3rd June, 1971 cannot be construed to
mean as if the land was given for cultivation to the Plaintiffs for
perpetuity. No doubt, Plaintiffs have relied upon revenue receipts
in support of their contention that the land revenue in respect of
the suit property has been paid by the Plaintiffs up to the year
1981. However, mere deposit of land revenue for few years would
not ipso facto legalise the possession of Plaintiffs over the suit
Ganesh Lokhande, PA 4/5 903-SA-726-2023+.doc
property which they were supposed to possess only during the year
1971.
6. There is yet another factor which needs to be considered
on the basis of letter dated 3rd June, 1971. Plaintiffs' claim of
adverse possession is clearly demolished by letter dated 3 rd June,
1971. The said letter clearly shows that possession of Plaintiffs' is
of permissive nature. Thus, the Plaintiffs were put in possession by
letter dated 3rd June, 1971 only for the year 1971. If they continued
to remain continue in possession of property in violation
stipulation of the letter, the same would not entitle them to claim
title in the property by setting up a plea of adverse possession. Also
of relevance is the fact that such possession, at the highest
continued till the year 1981 as according to the case of the
Plaintiffs, the revenue in respect of the suit property was not paid
by them after the year 1981.
7. Reliance is sought to be placed on letter dated 23 rd
November, 2005 for the purpose of drawl of inference of
possession over the suit property by Plaintiffs. I have seen the letter
dated 23rd November, 2005. It was issued apparently on account of
decision of Regular Civil Suit No. 391 of 1998. Perusal of written
statement filed by the Defendant Nos. 1 to 3 would indicate that
Regular Civil Suit No. 391 of 1998 was filed by Plaintiffs in
respect of another land bearing survey No. 1178 which also fall in
Ganesh Lokhande, PA 5/5 903-SA-726-2023+.doc
the ownership of the State Government. Since, the said suit
was dismissed, the Assistant Engineer, wrote letter dated 23 rd
November, 2005 to the Plaintiffs and unnecessarily called upon
Plaintiffs to remove cattle shed and fodder stock from the suit
property. Therefore, letter dated 23rd November, 2005 cannot be
construed to mean as if Plaintiffs remained in possession of the suit
property as on 23rd November, 2005. In fact, panchanama dated
11th September, 2003 relied upon by Plaintiffs themselves clearly
shows that the land remained uncultivated as on 11th September,
2003.
8. I have also gone through the photographs placed before
the trial Court, which shows existence of mere temporary cattle
shed and fodder stock. Mere existence of such temporary cattle
shed or fodder stock cannot entail possession of the entire suit
property by Plaintiffs.
9. After evaluating the entire evidence on record the trial
Court has recorded finding of fact that Plaintiffs do not possess the
property nor their alleged possession is adverse to the title of the
State Government. No substantial question of law is involved in
Appeal. The Appeal is accordingly dismissed.
10. All Interim Applications are disposed of.
Digitally
signed by
GANESH
GANESH SUBHASH
SUBHASH LOKHANDE
LOKHANDE Date:
2024.01.25
20:39:30
+0530
SANDEEP V. MARNE, J.
