Bombay High Court
Apparao Kashinath Mangire vs Dattatrya Bapurao Holkar on 15 January, 2025
2025:BHC-AUG:1305
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 174 OF 1994
1. Apparao Kashinath Mangire,
Age : 72 years, Occu: Agri.
R/o. Peth Bhoom,
Dist : Osmanabad.
(Died on 16-7-2003) through his legal heirs :-
1A) Dattatraya s/o. Apparao Mangire,
(Deceased)
1A-1 Vijaya w/o Dattatraya Mangire,
Age : 68 years, Occu: Agri.
R/o. Peth Bhoom, Tq-Bhoom
Dist : Osmanabad.
1A-2 Mahesh s/o Dattatraya Mangire,
Age : 47 years, Occu: Agri.
R/o. Peth Bhoom, Tq-Bhoom
Dist : Osmanabad.
1A-3 Umesh s/o Dattatrya Mangire
Age : 43 years, Occu: Agri
R/o. Peth Bhoom, Tq-Bhoom
Dist : Osmanabad.
1A-4 Varsha w/o Anil Kolhe
Age : 40 years, Occu: Agri
R/o. Daghe Mala, Kurwadi Road,
Barshi, Dist-Solapur
1A-5 Sonali w/o Umesh Kolhe
Age : 36 years, Occu: Agri
R/o. Daghe Mala, Kurwadi Road,
Barshi, Dist-Solapur
1B) Abhaykumar s/o. Apparao Mangire,
Age : 34 years, Occu: Agri
R/o. Yermala, Tq-Kalamb
Dist : Osmanabad.
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1C) Padminibai w/o. Apparao Mangire,
(Deleted by Courts order dated 20.02.2024).
1D) Saw. Alka w/o Somnath Baraskar,
Age : 37 years, Occu: Household
R/o. Yermala, Tq-Kalamb
Dist : Osmanabad.
VERSUS
1. Dattatraya Bapurao Holkar,
(deceased)
1A) Manmath Dattatrata Holkar
Age: 49 years, Occu : Agri
R/o : Bhoom, Tq: Bhoom
Dist : Osmanabad
1B) Ravindra Dattatrata Holkar
Age: 46 years, Occu : Agri
R/o : Bhoom, Tq: Bhoom
Dist : Osmanabad
1C) Shital Vasantrao Waskar
Age: 64 years, Occu : Household
R/o : Aasthi, Tq: Aasthi
Dist : Beed
1D) Nirmala Chandrakant Shete
Age: 61 years, Occu : Household
R/o : Ganpati chowk, Sangali
Dist : Sangali
2. Ramling s/o Bapurao Holkar,
(Died)
2A) Smt. Yamunabai w/o Ramling Holkar,
Aged : Major Occu : Household,
At post : Bhoom Tq: Bhoom,
Dist : Osmanabad.
2B) Shanling s/o. Ramling Holkar,
Age: 55 years, Occu : Agri
R/o : Bhoom Tq: Bhoom
904-SA-174-1994-fin.odt 2 of 18
Dist : Osmanabad.
2C) Smt. Babita Ganpat Sadawarte,
Age: 40 years, Occu : Household,
At post Uplai (Dhonge)
Tq: Barshi Dist : Sholapur.
2D) Smt. Kusum @ Shobha w/o. Dattatraya
Waskar, Aged : 42 years.
Occu : household, R/o. Kranti Nagar,
Tq : Patoda, Dist : Beed
2E) Smt. Nanda w/o. Vilas Sadavarte,
Age : 35 years Occu : Household,
At post Tal. Barshi
Dist : Sholapur.
2F) Smt. Kaveri w/o. Ashokrao Shendge,
Age 34 years. Occu : Household
At post Tq. Saswad, Dist : Pune.
3. Utreshwar s/o. Bapurao Holkar,
(Died)
3A) Smt. Vijaya w/o. Ashok Sonawane,
Age : 45 years. Occu : Household
R/o: Kolar Tq: Shrirampur,
Dist : Ahmednagar
3B) Smt. Asha w/o. Ravikant Khadke,
Age : 42 years, Occu : Household,
R/o : Malegaon Road, Hanuman Nagar, Near
Maruti Ganpati Temple, Mukkam post Baramati
Dist : Pune.
4. Bhagwan s/o. Bapurao Holkar,
Age : 61 years, Occu : Agri.
R/o : Bhoom.
5. Shivaji Bapurao Holkar,
Age : 51 years, occu : Agri.
All are residing at Bhoom,
Dist : Osmanabad.
904-SA-174-1994-fin.odt 3 of 18
Mr. P. R. Katneshwarkar, Senior Counsel I/b Mr. K. R. Doke, Advocate for
appellant
Mr. S. Y. Mahajan, Advocate for respondent Nos.1A to 1D
CORAM : R. M. JOSHI, J.
RESERVED ON : 10th January, 2025
PRONOUNCED ON : 15th January, 2025;
JUDGMENT :
-
1. This Second Appeal takes exception to the judgment and
decree passed in Regular Civil Appeal No. 33/1985 dated 03.03.1994
whereby the First Appellate Court has reversed the judgment and decree
passed by the trial Court in Regular Civil Suit No. 108/1974.
2. This Court, by order dated 28.03.2024, has framed following
substantial questions of law after hearing learned counsel for both
sides :-
(i) Whether the learned Second Addl. District Judge,
Osmanabad was justified in framing an issue regarding
limitation for the first time in an Appeal ?
(ii) Whether the appellate court was justified in allowing
the Appeal on the ground that the suit filed by the
appellant was beyond limitation even in the absence of
any mention in the written statement filed by the original
defendants (i.e. present respondent) ?
(iii) Whether the entries in the revenue record such as
7/12 extract and the recitals in the registered sale deeds
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supported by other documentary evidence, such as, report
and map prepared by the cadastral surveyor could have
been discarded by the first Appellate Court ?
2. Facts which led to the filing of this appeal need to be
considered for the sake of proper understanding and decision of the
questions of law involved in this appeal. Parties are referred to as
plaintiff and defendant.
3. Plaintiff filed suit against defendants on the basis of title in
respect of the suit property in which he is the owner of half share of
survey No. 31/B from southern side. It is claimed that he purchased area
admeasuring 8 Acre and 18 R on 04.05.1972 pursuant to the registered
sale deed executed by the original owner Bhujang. The boundaries
described of suit property are like this i.e., towards East of the land there
is land of one Amir Baig Hamja Baig and towards North, land of
defendant No. 1 There is a public road to south side. It is the case of
plaintiff that by removing boundary marks, defendants have encroached
on the land of plaintiff to the extent of 1 Acre & 4 R. He, therefore,
sought possession of the encroached portion from defendants.
4. Defendant Nos. 2 to 5 are brothers of defendant No. 1. Since
they are from same family, they were made as party defendants to the
suit. Defendants resisted the claim of the plaintiff by filing written
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statement. There is no dispute about the fact that the plaintiff has
purchased equal portion from the Sourthern side of Survey No. 31/B. It
is however, denied that he had purchased area admeasuring 8 Acres &
18 R. So also, possession of the plaintiff over the said portion of land is
disputed. It is claimed that Bhujang was not possessing 8 Acre & 18 R
and, therefore, plaintiff could not get the possession of the same.
Defendants also denied the allegations against them of removal of
boundary marks and encroachment upon the land of the plaintiff.
5. Learned trial Court framed issues. Both sides led evidence.
Plaintiff examined himself and also led evidence of cadastral surveyor.
Defendants also led oral evidence to support their contentions.
6. Learned trial Court decreed the suit and directed the
defendants to hand over possession of the land admeasuring 1 Acre & 26
R to the plaintiff by judgment and decree dated 31.12.1994. Defendants
being aggrieved by the said judgment preferred first appeal bearing RCA
33/1985. The Learned First Appellate Court reversed the findings
recorded by the trial Court and dismissed the suit. Hence this appeal.
7. Heard submissions of learned counsels appearing on both
sides at length.
8. It is the contention of the learned senior counsel appearing
904-SA-174-1994-fin.odt 6 of 18
on behalf of the appellant/plaintiff that the First Appellate Court has
committed error in framing the issue of limitation though, no plea of bar
of limitation was raised in the written statement by the defendants. He
drew attention of the Court to the findings recorded by the First
Appellate Court to the effect that the issue of limitation is question of law
and, therefore, the issue was framed for determination for the first time
before the Appellate Court. It is submitted by learned Senior Counsel
that it is a settled position of law that the issue of limitation is not a pure
question of law but mixed question of law and fact. Thus, it is his
submission that the findings recorded by the learned First Appellate
Court with regard to the suit being barred by limitation is perverse.
9. On merit, it is his submission that the plaintiff has examined
cadastral surveyor and the survey report and map made at Exhibit. 76
and 77 were duly proved. He drew attention of the Court to the findings
recorded by the Trial Court with regard to the encroachment being found
to have been done by the defendants over the land belonging to the
plaintiff. It is his submission that admittedly towards southern side of the
land of the plaintiff there is public road, towards northern side land of
defendants is situated and towards northern side of defendants land of
some third party is situated. It is his submission that in such
circumstances, findings recorded by the trial Court on the basis of these
904-SA-174-1994-fin.odt 7 of 18
admitted facts as well as the report of the additional surveyor are in
consonance with the evidence on record and which ought not to have
been interfered with by the First Appellate Court. He drew attention of
the Court to the judgment of the First Appellate Court, more particularly,
paragraph 12 to 16 thereof. According to him, the First Appellate Court
has not only failed to take into consideration the evidence of additional
surveyor in proper perspective but has recorded findings on assumptions
and surmises which is not permissible in law. It is his submission that the
findings recorded by the First Appellate Court that the plaintiff has failed
to prove that he has purchased area admeasuring 8 Acres and 18 R is
incorrect and perverse as the plaintiff has proved by sale deed Exhibit 72
that he purchased area of 8 Acre and 18 R. Thus, it is his contention that
the findings recorded by the First Appellate Court are contrary to the
evidence on record and hence perverse.
10. Learned counsel for the respondent/original defendant
submitted that since there is no dispute about the fact that the vendors
of plaintiff and defendants were holding 8 Annas share in subject
property i.e., Survey No. 31/B, both plaintiffs and defendants can be said
to have held the very same property after purchase of the same. It is his
submission that the case of plaintiff is not supported by the material
evidence on record. He has drawn attention of the Court to the sketch
904-SA-174-1994-fin.odt 8 of 18
annexed to the plaint as well as written statement. Is is his submission
by referring to the same as well as the evidence on record that the
sketch shown by the plaintiff is apparently incorrect. He submits that the
existence of common wealth in Survey No. 31/B shows that there is no
substance in the contention of the plaintiff. He also argued that the
presence of water stream between the two lands is more than sufficient
to indicate that the same was the boundary between the two lands.
Without prejudice to his submissions, he contents that in any case the
trial Court could not have decreed the suit to the extent of removal of
encroachment and delivery of possession by the plaintiff to the defendant
to the extent of area admeasuring 1 Acre and 26 R. It is his submission
that the said relief granted by the trial Court is beyond the pleadings and
prayers in the plaint. It is his submission that the defendants were not
given an opportunity to meet with the said case of plaintiff and as such
in any case a modification is required in the judgment and decree passed
by the trial Court.
11. Learned senior counsel appearing on behalf of plaintiff
oppose the said submission by contending that in the suit for removal of
encroachment, there is no certainty of the area encroached when the
suit is filed. It is his submission that in such circumstances on the basis
of evidence on record, it is open for the Court to mold relief and as such
904-SA-174-1994-fin.odt 9 of 18
there is no perversity in the decree passed by the trial Court. It is his
submission that there is no total embargo for molding the relief
depending upon the subsequent developments. To support his
submission he placed reliance on following judgments :-
i) Nabbobai w/o Ghansiram and another v. Hasan
Gani Abdul Gani and others AIR 1954 MADHYA
BHARAT 181.
ii) Jai Prakash Gupta (D) Thr. L.Rs v. Riyaz Ahamad
and Anr 2010 AIR SCW 225.
iii) Harikishan and others v. Krishna Dhanaji Sheiki
and another AIR 1977 BOMBAY 330.
12. There is no dispute about the fact that the plaintiff as well as
defendants purchased the portion of land from Survey No. 31/B from
their vendors who were initially the joint owners of the said entire land
31/B. This land later on came to be partitioned between vendors equally.
13. As far as plaintiff's case is concerned, he has placed reliance
on the registered sale deed Exhibit 72 executed by erstwhile owner in his
favour to substantiate his contention about the purchase of land
admeasuring 8 Acre 18 R. There cannot be any other apt evidence to
establish title over the suit property than the registered sale deed. The
said document shows that it was put into the possession of purchased
904-SA-174-1994-fin.odt 10 of 18
property. Similar is case with defendants' title. As far as the case of the
plaintiff about encroachment being done by the defendants in the suit
property is concerned, he examined cadastral surveyor Anant Mahamuni
Exhibit No. 75. This witness has deposed about the measurement being
carried out of the respective lands and having arrived at conclusion of
encroachment being done by the defendant to the extent of 1 Acre & 26
R land belonging to the plaintiff. It is also observed that there is
encroachment on Survey No. 31/B by adjoining owner of northern side of
defendants land. It is pertinent to note that the defendants have not
challenged the correctness of the survey report submitted by this
witness. It has been rightly held so by learned trial Court in the
judgment more particularly in Paragraph 13. It is thus clear that at no
point of time, there was any dispute made by the defendants with regard
to the correctness of the measurements carried out. As stated here in
above, there is no dispute about the fact that towards northern side, the
land of the defendants is situated and towards the southern side, there is
public road. These findings recorded by the trial Court with regard to the
defendants encroached upon the portion of the land belonging to the
plaintiff cannot be faulted with.
14. As against this, learned first appellate Court has proceeded to
hold that there is possibility that the predecessors in title of plaintiff and
904-SA-174-1994-fin.odt 11 of 18
defendants were holding land equally, possibly of equal land being
possessed by plaintiff and defendants exists. In order to record such
findings neither there is case of defendants to that effect nor any
evidence is led in this regard. The learned First appellate Court also
proceeds on the footing that since there exists the water canal and it was
treated as boundary. The observations made by the First Appellate Court
are required to be reproduced. In paragraph 15, it is observed that "I
think though they denied the watercourse was treated as boundary,
denial has not much importance towards vendor has specifically stated
that to the western side to watercourse, there is land of defendants".
This finding recorded by the learned First Appellate Court is wholly on
surmises. Apart from this, there is no specific defence taken in the
written statement by the defendants that the watercourse or water canal
was a boundary between the lands nor it so appears from the sale deeds
of both sides. Once, no such specific defence is taken, it was not open for
the First Appellate Court to hold so. It is thus clear that the findings
recorded by the First Appellate Court are contrary to the pleadings and
evidence on record. Thus, substantial question of law framed by this
Court with regard to the appreciation of the evidence of additional
surveyor deserves to be answered in affirmative.
15. With regard to the point of limitation determined by the First
904-SA-174-1994-fin.odt 12 of 18
Appellate Court is concerned, admittedly in the written statement,
defendants have not raised issue of maintainability of suit on the ground
of limitation. It is settled position of law that the issue of limitation is not
a pure question of law but mixed question of fact and law and as such
same cannot be raised unless specific defence is taken by the defendants
in the Court at first instance. No doubt, it may be open for the Court to
decide the said issue of limitation if the same even could be ascertained
from the contentions of the plaint. Perusal of the plaint does not show
that on the face of it, suit is barred by limitation. First Appellate Court,
therefore, has committed error in framing issue of limitation for first time
in appeal and that too without any issue being raised by defendants in its
written statement. The findings recorded by Appellate Court on issue of
limitation is perverse since not in consonance with law and hence
deserve interference. As a result of the above discussion, substantial
questions of law framed above are answered in negative.
16. Since during the course of arguments, submission was made
as a learned counsel for the defendants that the trial Court has exceeded
its jurisdiction in granting the relief which was not prayed by the plaintiff,
following substantial question of law is framed and the learned counsels
were heard on the same :-
"Whether the decree passed by the trial Court beyond the
904-SA-174-1994-fin.odt 13 of 18
prayer made in the plaint is sustainable and whether the First
Appellate Court has committed error in not considering the
same".
17. Record indicates that plaintiff filed suit with following specific
prayer :-
oknhl ekSts vkjlwyh ;sFkhy l-u-31@c e/khy iz-oknhus
vfrdze.k dsysys {ks= 1 ,dj 4 xqaBk pk T;kpk rif'ky
yky jaxkus ijhf'k"V (v) e/khy udk'kkr nk[kfoyk R;kpk
izR;{k rkck iz-oknhP;k rkC~;krwu ns.;kr ;kok-
18. Apart from this pleadings of the plaintiff also indicate that
plaintiff has asked possession of encroached area of 1 Acre and 4 R from
Survey No. 31/B from defendant and since the same was not handed
over, it has become a cause of action for the plaintiff to file the suit. The
law on the point of jurisdiction of the Court to grant decree to the extent
of pleadings and reliefs prayed by the plaintiff is fairly settled. Court does
not have authority/jurisdiction to pass any decree/order which was
neither pleaded nor prayed. The reason behind this is that the
defendant/other side is deprived of an opportunity of meeting the said
relief and prejudice and irreparable loss would cause to such party. In an
instant case, plaintiff did not plead and pray specifically about the relief
which is granted by the trial Court for the relief is granted by learned
trial Court. Even if it is accepted for the sake of argument that in case of
904-SA-174-1994-fin.odt 14 of 18
suit for removal of encroachment, there is no certainty and it is open for
the Court to mould the relief, the basic principle of the pleadings and
prayers cannot be given complete go by. It was always open for plaintiff
to amend the plaint before trial Court and to incorporate prayer for
recovery of the possession of land admeasuring 1 Acre and 26 R, once,
plaintiff found on record evidence to that effect. Admittedly, in spite of
examining cadastral surveyor and in spite of there being evidence of
encroachment being done on the suit land by defendants and knowing its
exact extent, plaintiff chose not to amend the plaint and to make the
prayer for possession of area of 1 Acre and 26 R. Thus, the defendants
are deprived of meeting with the said prayer and which has eventually
led to the miscarriage of justice.
19. It would be relevant to refer to the judgment (cited supra) on
behalf of appellant/plaintiff. In case of Nabbobai (supra) Full Bench of
Madhya Bharat High Court it was held that ordinarily when a suit is
brought by the plaintiff on the basis of right inuring to him on the date of
the suit, the determination of the suit ordinarily involves determination
of such rights as they exists in the parties on the date of the suit. And
any molding in the relief which the plaintiff might be required to resort
go can some time appropriately be regarded as the one relating to
execution and satisfaction of those rights thus determined. An illustration
904-SA-174-1994-fin.odt 15 of 18
is given that in case suit is filed for recovery of the dues by sale of the
mortgaged property on the date of suit and the property is acquired by
the Government, his right to get money remains intact. In such or
similar eventualities, the moulding of relief would be permissible. In case
of Jai Prakash Gupta (supra), the Hon'ble Supreme Court has also taken
into consideration the proposition of law that subsequent developments
of fact or law which have a material bearing on the entitlement of the
parties to relief or on aspect which bear on the moulding of the relief
occur, the Court, even at any stage of the proceeding, is not precluded
from taking a cautions cognizance of the subsequent developments of
fact and law to mould the relief. Similarly, in case of Harikishan (supra)
Full Bench of this Court has held that according to the procedural law in
India, subsequent developments, even after the order, shall have to be
taken into account and that this doctrine is an exception to the ordinary
general rule that rights of the litigants should be decided by reference to
facts existing on the date of the institution of proceedings.
20. There cannot be any quarrel with regard to the proposition of
law laid down by the judgments cited supra. The question arises as to
whether any subsequent development has occurred post decision of suit
in order to exercise such discretion of moulding relief. As already
observed herein above, it was known to the plaintiff on the basis of
904-SA-174-1994-fin.odt 16 of 18
evidence of cadastral surveyor that he was entitled to seek recovery of
land more than prayed in the plaint that made it obligatory for him to
amend pleadings in this regard. Such amendment to pleadings is
absolutely essential in order to enable the defendant to meet with the
same. Here, in this case what has occurred is that without giving an
opportunity of meeting the case of the plaintiff to the extent of recovery
of the suit land as decreed, order came to be passed to that effect. This
has certainly led to the miscarriage of justice. This aspect was ought to
have been considered by the learned First Appellate Court which
admittedly has not been taken cognizance of.
21. Before proceeding to pass further order it is necessary to
record that the suit is filed on 24.10.1974, it was decided on
31.12.1984, first appeal is decided in 1994. Now after 50 years of
initiation of the original proceedings. This Court, therefore, is not inclined
remit the matter back to the trial Court for correcting the said error.
Instead finds it appropriate to correct the same herein.
22. As a result of above discussion, appeal stands partly allowed.
The judgment and decree passed by the First Appellate Court is set
aside. Judgment and decree passed trial Court in RCS No. 108/1974
stands restored to the extent of the suit property admeasuring 1 Acre 4
R from Survey No. 31/B for possession of defendant to the plaintiffs as
904-SA-174-1994-fin.odt 17 of 18
shown in the map at Annexure A to the plaint. Parties to bear their own
costs.
(R. M. JOSHI, J.)
bsj
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