Bombay High Court
Sandeep Manohar Chavan vs Smt. Suvarna Sudhakar Pawaskar on 30 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:4873
sa_mandawgad 903sa806-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.806 OF 2011
Sandeep Manohar Chavan ... Appellant.
Versus
Smt. Suvarna Sudhakar Pawaskar ... Respondent.
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Mr. R.D. Suryawanshi, for the Appellant.
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 30, 2024
P. C.:
1. Being dissatisfied by the judgment dated 22nd June, 2011
passed by the First Appellate Court confirming the findings of the
trial Court dismissing the suit filed for recovery of possession of
the suit property, the original-plaintiff is before this Court.
2. Regular Civil Suit No.174 of 2006 was filed seeking relief
of possession and in the alternative relief of injunction against the
Defendant no.1. The suit property is described as residential
house, which is temporary shed constructed in south-east corner of
the land bearing City Survey No.76-A, 1/90 Plot No.7. It was the
case of the plaintiff that by a registered sale deed of 30th December,
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2004, the plaintiff had purchased the property being plot No.7
from the defendant nos.2 to 6. It was the case in the plaint that at
the time of execution of sale deed, the plaintiff was informed that
the defendant no.1 was residing in the shed with the permission of
the defendant no.2 as the gratuitous occupier. It was pleaded that
after purchase of Plot No.7, the plaintiff become aware of RCS
No.58 of 2002 filed by the defendant No.1 against the defendant
nos.2 to 6. It was the case of the plaintiff that the entire plot No.7
having been purchased and the defendant no.1 being gratuitous
occupier, he is entitled to the possession of the suit property.
3. The suit came to be resisted by the defendant no.1 stating
that the suit has been filed after the decision in Regular Civil Suit
No.58 of 2002, as against which Regular Civil Appeal is pending.
According to the defendant no.1, she had constructed a shed on
the portion of the land which was agreed to be sold to her by the
defendant no.2 by an oral agreement. It was also contended that
by virtue of the oral agreement for sale, consideration of
Rs.8,000/- was paid and she was put into possession of the suit
property. It was contended that for the past 10 to 11 years, the
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defendant no.1 was residing in the suit property which is a
permanent construction. It was contended that the case of the
plaintiff was hit by lis pendens. It was further contended that for
vacating the suit property the plaintiff was harassing her and a
police complaint was filed by her against the plaintiff.
4. The parties went to trial and by judgment dated 12th
August, 2008, the suit came to be dismissed. The Plaintiff
preferred Regular Civil Appeal No.82 of 2008 which also came to
be dismissed by the Appellate Court.
5. Heard Mr. Suryawanshi, learned counsel appearing for the
Appellants.
6. Mr. Suryawanshi, learned counsel appearing for the
Appellants submits that the substantial question of law is the
perversity in the findings of the trial Court and the Appellate
Court, as they have failed to notice that the sale deed was
executed in respect of the entire plot No.7 and the issue as regards
the ownership of the suit property has been negated, as there is no
mention of the temporary structure in the sale deed.
7. Considered the submissions and perused the judgment of
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the trial Court and the Appellate Court.
8. It is not disputed that the defendant no.1 was occupying
the suit property and in respect of the said property, the suit for
specific performance was filed which came to be dismissed and as
against which the Appeal was pending. It is also not disputed that
there is no mention in the sale deed that the suit property has been
sold by the vendors to the plaintiff.
9. The findings of the Appellate Court would indicate the
admission of the plaintiff in the cross-examination that the sale
deed does not mention that suit shed has been sold to the plaintiff,
that he has no right to the suit shed and he has right to the land
beneath the suit shed. The Appellate Court considered that by
virtue of an agreement of sale, the defendant no.1 is in possession
of the suit property since last many years. The Appellate Court
noted that the property sold to the plaintiff is described in the sale
deed as under :
"Bhumapan No.155 Hissa no.3/15A 3A + 1A/7 area
3-91 R, city Survey No.76A1/10. The suit property is
house No.659 of dimension 9.29 Sq. Meter and its
boundaries are :-
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to east side City Survey No.81 and 82,
to west side plot No.16,
to north side plot No. 13 and
to south side City Survey No.83/64 and 83/65."
The house described in the sale-deed is the residential
house of the defendant nos.2 to 5.
10. Considering the recitals in the sale-deed coupled with the
admission of the plaintiff that he has not purchased the suit shed,
the Appellate Court dismissed the Appeal.
11. The right claimed by the plaintiff for the purpose of
seeking the relief of recovery of possession was premised on the
sale deed executed between the defendant Nos.2 to 6 and the
plaintiff, which sale deed did not have any mention about the suit
shed having been sold by the defendant nos.2 to 6 to the plaintiff
and is confined only to residential house of the defendant nos.2 to
defendant no.5. The findings of the trial Court as well as the
Appellate Court based on the documentary evidence cannot be
said to suffer any infirmity. It is settled that when terms of a
contract or of any other disposition of property is reduced to a
document, no evidence shall be admitted for purpose of varying
from its terms.
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12. In the present case, considering the admitted position that
the sale deed did not mention the suit property as having been
sold, the Appellant cannot be said to be the owner of the suit
property, so as to seek recovery of the possession. The evidence on
record demonstrates the possession of the defendant no.1 on the
suit property since last many years. In the absence of any title to
the suit property, the trial Court and the Appellate Court has
rightly dismissed the suit.
13. As such, no substantial question of law arises in the
present case. Appeal stands dismissed.
( Sharmila U. Deshmukh, J.)
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 01/02/2024 16:35:26
