Kachru Bachu Jadhav v. Laxman Sayaji Lihinar & Ors.

Shri A.S. Bajaj, Advocate, for the appellants. Shri U.S.Malte, Advocate for Respondent Nos.1 to 3. Appeal stood dismissed as against Respondent Nos. 4 and 5 vide Registrar's order dated 19.9.1990 and 4.4.1990. ------------------------------------------------------ ORAL JUDGMENT Coram : P.R. Borkar, J. Date : June 09, 2010

This second appeal is preferred by original defendant Nos.1 to 3 being aggrieved by the judgment and decree by the learned II Additional District Judge, Aurangabad, in Regular Civil Appeal No.225 of 1983 decided on 7.1.1988, thereby reversing the 3 judgment and decree of dismissal of suit by the learned Civil Judge, Junior Division, Vaijapur on

12.9.1983 in Regular Civil Suit No.218 of 1977 and decreeing the said suit for perpetual injunction against present appellants-defendants.

Briefly stated, the facts giving rise to this second appeal are' Respondent Nos. 1 to 3 are the original plaintiffs. They filed suit for perpetual injunction simplicitor in respect of lands bearing Gat Nos.153, 154 and 155 situated at village Ladgaon, Taluka Vaijapur, District Aurangabad. Survey 68, 69 of Ladegaon and Survey No.5 of village Fakirabadwadi which were inam lands. Respective plaintiffs' fathers (Sayanji, Tukaram and Genuji) were owners of survey No.68 to the extent of 1/3rd share. The Deputy Collector (Inam Abolition), Aurangabad, declared the plaintiffs' fathers as Inamdars. Accordingly, mutation was effected and names of plaintiffs No.1 to 3's fathers were entered in respect of portions of lands in survey No.68 which were later on given Gat Nos. 153, 154 and 155 respectively. It is stated that after deaths of fathers of Plaintiffs, names of 4 plaintiffs Nos. 1 to 3 were entered in respect of said Gat numbers and they were in actual possession. The Defendants were also Watandars and were declared as owners of remaining 2/3rd portion of survey No.68 of village Ladgaon. Survey No.68 was divided into three parts and western side 1/3rd portion was owned by defendant No.2, middle 1/3rd belonged to plaintiffs and remaining portion was owned by Defendant Nos.1,3 and 4. Thus, according to the plaintiffs, middle 1/3rd portion of survey No.68 belongs to them. It is stated that the defendants started dismantling common boundary bund and encroaching upon plaintiffs' portions and, therefore, the suit was filed.

Present Appellants-original defendant Nos. 1 to 3 filed Written Statement at Exh.24 and denied that the plaintiffs are owners of any portion of land survey No.68 or owners of Gat numbers as claimed, or that the defendants tried to demolish common bund and encroach upon plaintiffs portion. According to the defendants, they are the owners of disputed land for a period more than 12 years and, therefore, they have acquired ownership even by adverse possession. 5

The trial court came to the conclusion that plaintiffs-respondents No.1 to 3 failed to prove their possession and ownership and, therefore, they were not entitled to injunction. The first appellate court reversed the said finding and held that the judgment of the trial court was wrong.

It is argued before this court that the first appellate court did not frame necessary points for consideration; it did not consider all evidence and has thus come to a perverse finding.

Following substantial question of law is framed today and parties are heard on the same. "Whether the first appellate court committed error in not framing necessary points and in not discussing all evidence and whether this has resulted in perverse finding ?"

The suit was for perpetual injunction simplicitor. Now, it is well settled position of law that once plaintiff proves his settled possession over the suit property, he would be entitled to injunction even against true owner and the true owner cannot take law into his own hands and disturb the possession of trespasser except otherwise than by due process of law. 6

Shri A.S. Bajaj, learned counsel for the appellants relied upon the case of Anita M. Barreto (Smt.) vs. Abdul Wahid Sanullah 1985 (1) Bom.C.R.130 and argued that the first appellate court ought to have framed points for consideration and recorded specific finding regarding possession. Although specific points were not framed for determination by the first appellate court and it did not discuss oral evidence in details, I feel that considering the fact that this appeal itself is pending since 1988, it would be appropriate for this court to consider the evidence on record.

At Exhibit 60, there is mutation entry No. 314 which is certified on 28.1.1966 by the Tahsildar, by which Inam Mahar Hadola land was divided and portions of survey No.68 were entered in the names of several persons and names, including those of present appellant Nos.1 Kachru Bachu and 2 Shankar Nathu, so also respondent no. 4 Saraswatibai w/o Ananda.

It is the case of the plaintiffs and it also appears from mutation entry No.314, that the said entry was effected on the basis of the order passed by Naib Tahsildar on 28.1.1966. The copy of the said 7 order shows that the same was passed in proceedings bearing File No.RB.WS.I A 256/61 AR 48/61 under Bombay Inferior Village Watan Abolition Act, 1958 after remand of the matter by the Deputy Collector, (Inam Abolition), Aurangabad with directions to fix up the Anewari shares according to the apportionments of the Inamdars after spot enquiry. Parties were, therefore, allowed to adduce evidence in support of their respective claims. It is argued before me that there was no spot inspection of survey No.68. However, fact remains that there is no evidence to show that the said orders of the Naib Tahsildar dated 28.1.1966 or mutation entry effected consequent thereto were ever challenged.

At Exhibits 56 to 59, there are extracts of V.F. No.7x12 which clearly indicate that from 1971-72 till 1979-80 fathers of respective plaintiffs and after their deaths, the plaintiffs were shown to be in actual possession of the suit land. It does not appear that the consolidation scheme showing certain Gat Numbers in the names of the plaintiffs were ever challenged. Therefore, prima facie, the documentary evidence on record shows that for number of years the plaintiffs were in possession of the suit lands. 8

The first appellate court observed that the trial court was impressed by the evidence of one Gulam Dastgir, who was the talathi, examined by plaintiffs as PW-4 at Exhibit 63. At Exhibits 64 to 66, there are certified copies of V.F. No.7x12 in respect of survey No.68 from 1969 to 1970-71. Witness Gulam Dastgir stated that in the said 7x12 extracts, the plaintiffs were not shown in possession. He does not state about fathers of plaintiffs who were then alive. Moreover, plaintiffs are shown in possession in V.F. 7x12 extracts at Exhibits 57 to 59. It may be noted that the suit was filed in the year 1977 and the concerned entries are for the period prior thereto since 1971-72. It may also be noted that, as can be seen from the deposition of said Gulam Dastgir, that he was not working as Talathi when the alleged entries in V.F. 7x12 extracts were made. He stated in his examination-in-chief that the extracts of V.F. No. 7x12 at Exhibits 64 to 66 were issued by one Bamble.

In support of their case, Respondents No.1 to 3 (Plaintiffs) have examined Respondent-Plaintiff No.1 Laxman as PW-1 at Exhibit 54. He deposed as per his case. He admitted that father of Respondent No.3 Kashinath (Plaintiff No.3) was then alive. He also 9 stated that all the three plaintiffs were in service when his deposition was recorded i.e. in December

1982. In the cross examination of Laxman, it has been brought on record that he is having threshing floor in survey No.42. Ordinarily, a person will have a threshing field in or nearby the land under his cultivation in same village. Evidence of the plaintiff is supported by one Sampat Surywanshi (PW 2, Exhibit 61) and Syed Yasin Ali (PW 3, Exh.62).

On behalf of appellants-defendant Nos.1 to 3, appellant No.1 Kachru is examined as DW-1 at Exhibit 72. He deposed that the plaintiffs had no concern with survey No.68. The plaintiffs reside at Kannad taluka and never come to village Ladgaon in Vaijapur taluka. According to him, the property is in possession of the defendants. Cross examination of this witness clearly indicates that survey Nos. 68 and 69 were owned by the government and the government distributed the lands amongst the persons who were serving the government. However, he could not tell for how many years the plaintiffs' fathers and thereafter plaintiffs resided at village Ladgaon in Taluka Vaijapur. Witness Kachru, however, admitted that their statements were recorded in tahsil office 10 before they started paying revenue. Appellant No.1 also could not tell if his name was recorded in V.F. 7x12 extracts and if any land was allotted to the plaintiffs after the decision by the Tahsildar. He feigned ignorance when it was suggested that the defendants-appellants had filed appeal against the decision of the Tahsildar and that the same was dismissed. Witness could have denied the suggestion, but instead of denying, he pleaded ignorance about such appeal being filed. That indicates that he was not telling truth. It is the case of the defendants- appellants that the suit lands which were part of survey No.68, were regranted to them If that was so, defendants could have produced Sanad re-granting the suit lands to them.

On behalf of the appellants-defendants, Ramrao Nikam (DW-2, Exh.73) and Dwarkanath Somwanshi (DW-3, Exh.74) are examined. But, it has come in the evidence of Ramrao Nikam (DW-2) that he sold his land in the year 1972 itself. Dwarkanath could not tell, if survey No.68 was consolidated and if any Gats were formed of said survey No.68. He, however, admitted that plaintiff No.1's father was resident of Ladgaon. 11

Considering the documentary evidence on record and in absence of any challenge to the mutation or consolidation scheme, in my opinion, the first appellate court did not commit any error in relying upon the documentary evidence and holding on the basis of preponderance of probabilities that the plaintiffs were in possession of the suit lands and were, therefore, entitled to protection of their possession. It, therefore, cannot be said that the ultimate conclusion drawn by the learned District Judge is perverse, or he committed error in granting relief of perpetual injunction.

In the circumstances, this second appeal is dismissed. pnd/SA106.88 (P.R.BORKAR, J.) 12