Bombay High Court
Manaji Babu Dhavade (Deceaed Thr. Lrs) ... vs Shantaram Barakya Humane And Ors on 24 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:4045
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.14 OF 2017
WITH
CIVIL APPLICATION NO.38 OF 2017
IN
SECOND APPEAL NO.14 OF 2017
WITH
CIVIL APPLICATION (ST.) NO.2842 OF 2019
IN
SECOND APPEAL NO.14 OF 2017
Manaji Babu Dhavade (since deceased)
through LRs and Ors.. ... Appellants.
Versus
Shantaram Barakya Humane and Ors. ... Respondents.
------
Mr. Tushar Sonawane, Advocate for the Appellants.
------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 24, 2024
P. C.:
1. Heard.
2. Being dissatisfied with the judgment dated 10th March,
2016 passed by the Appellate Court dismissing the Appeal and the
Cross-Objection, the original defendant nos.1 to 8 have filed the
present Appeal.
3. Regular Civil Suit No.40 of 2001 was filed simpliciter for
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injunction. The case of the plaintiff was that the suit property
bearing gut No.233 was owned by Manka Bapu Dalvi, who died
issue-less. According to the plaintiff, the plaintiff is a legatee under
the Will of Manka Bapu Dalvi and the suit property has been
bequeathed to the plaintiff and after the death of the testator, the
plaintiff is in continuous possession of the suit property. It is
further pleaded that the defendants have no right, title and
interest in the property however, the plaintiff's possession being
obstructed by the defendants is on the basis of another Will
propounded in favour of defendant Nos.9 and 10.
4. The suit came to be resisted by the Defendants. The
written statement was filed by defendant no.1 and adopted by
defendant nos. 2 to 8. The contention of defendant no.1 was that
suit property was being cultivated by defendant nos. 8 and 9 and
the defendant nos.8 and 9 were also taking care of Manka Dalvi,
who executed registered Will in their favour. It is contended that
defendant nos.8 and 9 are in possession of the suit property.
Defendant nos.9 and 10 filed their written statement and
supported case of defendant nos.1 to 8. The parties went to trial.
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The trial Court decreed the suit holding that the plaintiffs are in
possession. Against the judgment of trial Court Regular Civil
Appeal No.86 of 2011 was filed which came to be dismissed.
5. Pertinently, the defendant Nos.9 and 10, who were
propounding the later Will of Manka Bapu Dalvi had not preferred
an appeal against the judgment of the trial Court and accepted the
trial Court's judgment. It is the present Appellants, who claimed to
be cultivating the suit property assailed the findings before the
Appellate Court as well as before this Court.
6. Learned counsel appearing for the Appellants would
submit that the substantial question of law which arises in the
present case is whether the suit simpliciter for injunction would lie
when the defendant Nos.1 to 8 have raised a cloud over the title of
the plaintiff by relying upon the later Will of testator in favour of
defendant Nos.9 and 10.
7. The Appellate Court has framed the following points for
consideration, which read thus:
"POINTS FINDINGS
1 Whether the plaintiff proves that he is Yes.
in possession of the said suit property ?
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2 Whether the plaintiff proves that Yes.
defendants are obstructing his peaceful
possession ?
3 What order & decree ? As per final
order."
8. After considering the evidence, the Appellate Court has
observed that as there was no challenge by the defendant Nos.9
and 10, the decree has attained finality as against those defendants
and the present Appellants have no right to challenge for the
reason that they have failed to prove any right, title and interest in
the property and there is no claim that they were in possession of
the property at the time of filing of the written statement. The
Appellate Court observed that the whole effort was to prove that
the defendant Nos.9 and 10 had come in possession of the suit
property by virtue of the later Will executed in the year 1984.
9. As regards the relief of injunction, the Appellate Court
considered the 7/12 extract of the property which showed that the
plaintiff was in possession of the property prior to the death of
Manka Bapu Dalvi and was in continuous possession of the
property till 2001. The Appellate Court also observed that there is
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a specific remark in the mutation entry as regards the name of the
plaintiff being mutated by reason of the registered Will executed in
favour of the plaintiff. The Appellate Court also observed that
there is no Appeal before the Revenue Authority against the said
mutation entries.
10. From the findings of the trial Court, it appears that there
was no document produced by the defendant Nos.1 to 8 to
demonstrate their possession over the suit property. All that is
contended is that the defendant Nos.9 and 10 have given them
right to cultivate. It is settled that a person cannot transfer a better
title than that which he has. In the present case, it is not
demonstrated that the defendant no.9 and 10 were in possession
of suit property and as such no possession of right can be
transferred to defendant nos. 1 to 8. In support, he relies upon the
decision in the case of T. V. Ramakrishna Reddy v. M.Mallappa and
Another, reported in (2021) 13 SCC 135.
11. There is no dispute with the proposition of law laid down
that where the plaintiff's title is under a cloud a suit simpliciter for
injunction would not lie. In case of Anathula Sudhakar vs. P.Bucchi
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Reddy (dead) by Lr's reported in AIR 2008 Supreme Court Cases
2033, the Apex Court has held that where the plaintiff has clear
title supported by documents, if a trespasser without any claim to
title merely denies the plaintiff's title, it does not amount to raising
cloud over his title. Mere denial of the title of the plaintiff should
not drive the plaintiff to file suit for declaration of title. In the
present case, it is not the defendant Nos.9 and 10, who have
propounded the later Will have asserted their title over the suit
property. In fact, the defendant Nos.9 and 10 have accepted the
findings of the trial Court. It is the Appellants, who claim to have
given right of cultivation, who are propounding the Will which has
been executed in favour of the defendant Nos.9 and 10 and
thereby denying the title of the plaintiff. The documents on record
sufficiently indicate the execution of the Will in favour of the
plaintiff as well as the mutation entry which mutates the name of
the plaintiff in the revenue record on the basis of the Will. Unless
there is a serious dispute to the title of the plaintiff, it cannot be
said that a cloud has been raised over the title so as to drive the
plaintiff to seek declaration before seeking injunction.
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12. In the present case, the defendant Nos.9 and 10 have not
even challenged the Will on the basis of which the plaintiff is
claiming title to the property and neither challenged the revenue
entries. Considering the facts of the case, it cannot be said that a
cloud has been raised over the title of the plaintiff, so as to drive
the plaintiff to file a suit for declaration before a suit for injunction
can be said to be maintainable.
13. Having regards to the discussion above, no substantial
question of law arises in the present Appeal. Appeal stands
dismissed. In view of the dismissal of the Appeal, Civil Applications
do not survive and stand disposed of.
14. It is needless to clarify that the observations herein are
only for the purpose of deciding the validity of the judgment and
decree which are subject matter of challenge. If any suit is filed for
declaration of title, the same is required to be decided on its own
merits and in accordance with law.
( Sharmila U. Deshmukh, J.)
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 29/01/2024 13:37:57
