High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD920 SECOND APPEAL NO. 393 OF 1994NATHU BAPURAO KHILLARE LRS.BHAGWAJ NATHU KHILLAREVERSUSBHAUSAHEB GULABRAO BHOSALEMr. S. D. Jaybhar h/f Mr. D. R. Jaybhar, Advocate for the appellant Mr. N. K. Kakade with Mr. A. N. Kakade, Advocate for respondent nos.1A to 1F.CORAM: R. M. JOSHI, J.DATE: 10th JANUARY, 2025PER COURT :-1.This appeal filed under Section 100 of the Code of CivilProcedure (for short ‘CPC’) takes exception to the concurrent findingsrecorded by the Trial Court in R.C.S. No. 22/1978 and its confirmation bythe First Appellate Court in R.C.A. No. 161/1990.2.Parties are referred to as ‘plaintiffs’ and ‘defendants’ for thesake of convenience.3.While admitting this appeal by order dated 23/11/1994, thefollowing substantial question of law was framed that “whether thefindings recorded by the Trial Court as well as First Appellate Court iswithout appreciating the material evidence on record and are based onextraneous circumstances.”920.sa393.94.odt1 of 9 4.In order to appreciate the case of rival parties andcontentions sought to be made across the bar it would be relevant totake note of certain material facts as they appear from the record.5.Plaintiffs filed suit seeking declaration and injunction inrespect of the suit property being survey no. 15/A/1 admeasuring 1 acre12 R and survey no. 16/A/1 24 Acres 18 R situated at Sangvi Patan, Tal.Ashti. It is the case of the plaintiffs that grandfather of defendant no.2Bhausaheb was original owner of the suit property. Plaintiffs claimedthemselves to be protected tenant in respect of the same. It is furtherclaimed that the name of Nathu (original plaintiff) was recorded as aprotected tenant in the register under Section 38/E of the HyderabadTenancy Act and he became owner of the suit land since 01/12/1957.Plaintiffs further claimed that Bhausaheb as well as defendant no.1Jadabai had raised objection to the tenancy of Nathu before the DeputyCollector and their objections were rejected. It is also claimed that writpetition filed by Govindrao was also rejected on 17/04/1965. Evendefendant no.1 Jadabai filed civil suit in respect of very same subjectproperty against Govindrao being Civil Suit No. 15/1965 seekingpermanent injunction and the said suit was dismissed on 30/04/1968. Noappeal is filed in respect of the said decree and as such it has attainedfinality.920.sa393.94.odt2 of 9 6.Defendant no.2 Bhausaheb filed written statement at Exhibit49 and resisted the claim. He disputes plaintiffs to be protected tenant ofsuit land. There is further denial that the plaintiffs were declared at thetenant of the suit land by preliminary proclamation dated 01/02/1957. Itis claimed that the said proclamation in the name of plaintiffs wasincorrect. He claims ignorance about the proceedings initiated by hisgrandfather so also proceedings filed before this Court. It is claimed thatsince he was not party to the proceedings, therefore, the same are notfinding upon him. There is, however, no dispute about the fact thatBhausaheb is grand son of original owner Govindrao. It is claimed thatprinciple of res judicata would not apply to the present case. He claimstitle in respect of suit land on the basis of sale deed executed in hisfavour by Jadabai.7.Trial Court framed issues. Parties led their respectiveevidence. Trial Court dismissed the suit by holding that the plaintiffs havefailed to prove possession over the suit land. In appeal said findingscame to be confirmed.8.Learned counsel for the plaintiffs submits that there is nodispute about a certificate issued by Competent Authority under theHyderabad Tenancy Act in favour of predecessor of the plaintiffs i.e.Nathu under Section 38E of the Hyderabad Tenancy and Agricultural920.sa393.94.odt3 of 9 Lands Act (for short ‘Act’). He further argued that the possession of thesuit properties was handed over by the Competent Authorities pursuantto the order passed in Spl.C.A. 52/1964. He referred to the order of thisCourt so also the panchnama prepared by the authorities while handingover the possession of the suit land to Nathu. It is his submission thatonce the said aspect is proved by the plaintiffs, their possession must beheld over the suit properties unless it is shown by the defendants thatthey were dispossessed at any point of time from the suit land. On thepoint of declaration of ownership in respect of entire suit properties it ishis submission that the certificate issued under Section 38E of the Actindicated that the plaintiffs are tenants of entire suit lands. It is hissubmission that the subsequent certificate issued by the authorities isnot legal and valid and as such the plaintiffs are entitled for thedeclaration. He claims that the Trial Court as well as First Appellate Courtcommitted serious error in appreciating the evidence on record so also,the position of law while dismissing the suit and since the said findingsare perverse, they deserve interference.9.Learned counsel for the defendants supported the impugnedorders submitting that there are concurrent findings of both Courts belowwhich do not require any interference at the hands of this Court in thesecond appeal. It is submitted that the Competent Authority had issued920.sa393.94.odt4 of 9 fresh certificate under Section 38E of the Act indicating that the plaintiffsare not tenants in respect of the entire suit property. It is his submissionthat plaintiffs took objection to the said certificate newly issued by theauthorities but were unsuccessful. It is thus his contention that in view ofthe fact that there is a certificate issued indicating that plaintiffs are notowners of the entire suit properties, no declaration in this regard couldhave been granted by the Trial Court and the refusal thereof needs nointerference. He further argued that the Trial Court has rightly taken intoconsideration the entire entire evidence on record and has arrived at thefinding that the plaintiffs have failed to prove their possession over thesuit property. It is his submission that the appreciation of documentExhibits 61, 62 and 63 is perfect is legal and not being perverse. It is hissubmission that the contesting defendants has derived title on the basisof registered sale deed executed by Jadabai and as such no order ofinjunction could have been passed against defendants. He, therefore,seeks dismissal of the appeal.10.Following questions of law arise for consideration of thisCourt. (i)Whether the Trial Court as well as First Appellate Court havecommitted error in appreciating the evidence i.e. Exhibits 117, 118and 119 in proper perspective and arrived at perverse findings.(ii)Whether the Courts below were justified in discarding thesedocuments by giving preference to the oral evidence of one witness920.sa393.94.odt5 of 9 over documents on record.(iii)Whether the plaintiff in view of the issuance of new certificateof tenancy in the year 1970 can claim the declaration in respect ofthe entire Survey nos. 16-1/A and 15-1/A.(iv)Whether the plaintiffs have succeeded in proving possessionover the suit property and the whether entitled for injunction.11.Learned counsel for both sides are heard specifically onabove questions of law.12.There is no dispute about the fact that in the year 1967certificate was issued in favour of predecessor of the plaintiffs underSection 38 of the Act in respect of Survey nos. 15 and 16. The saidcertificate was modified and new certificate came to be issued in the year1970. Admittedly, the said new certificate holds field as the same has notbeen set aside by any Competent Authority. In view of this, the plaintiffswould not be in a position to seek declaration of their title in respect ofthe entire suit properties on the basis old certificate issued in the year1967. The dismissal of the suit therefore to that extent is justified. Soalso refusal of other reliefs except relief of injunction requires nointerference. 13.The plaintiffs have claimed to be in possession of the suitproperty, since time of their predecessor and relied upon the documentExhibits 117, 118 and 119 to support the case. It would be material togo through the said documents, only with a view to appreciate whether920.sa393.94.odt6 of 9 the Courts below erred in considering these documents correctly or thereis perversity in the findings recorded to their extent.14.These documents are duly proved and exhibited. Theyclearly show that on 25/08/1965 the possession of survey nos.16 and 15was handed over to the predecessor of plaintiff from the original ownerof the property i.e. Govindrao. These documents leave no room for doubtthat the possession was with Nathu of suit lands, w.e.f. 25/08/1965. TheTrial Court as well as First Appellate Court have committed serious errorin appreciating the said documents when it is recorded that thesedocuments do not indicate the date on which the possession was given.Thus both Courts below recorded finding contrary to the evidence andhence it is a perverse finding.15.The said documents as well as the contention of the plaintiffget further support from application Exhibit 81 filed by original ownerGovindrao before Tahasildar with specific contention that the subjectproperty i.e. survey nos. 15 and 16 were handed over to Nathu Khillarei.e the predecessor of the plaintiff on 15/08/1965. Thus, no otherevidence is required in order to hold that in the year 1965 thepredecessor of the plaintiff was put in to the possession of survey nos.15 and 16. There is no case made out before the Trial Court bydefendants that plaintiffs were ever dispossessed from suit properties or920.sa393.94.odt7 of 9 lost their possession thereon.16.Defendant no.2 herein claims his title and possession inrespect of the suit property on the basis of sale deed executed byJadabai in his favour. He has also placed reliance on one witness who issaid to be adjoining land owner. The question arises as to whether anyweightage can be given to the oral evidence of this adjoining land ownerover the conclusive documentary evidence which indicates thepossession of the suit property being with predecessor of plaintiff since1965. Apart from this, pertinent to note that learned Trial Court has heldthat Jadabai might have got title to transfer the suit land to thedefendant no.2. Such observation in order to hold title of defendant no.1and possession is wholly perverse and hence cannot sustain.17.As far as settlement arrived at between some of the plaintiffsbefore Trial Court is concerned, the same would not bind Appellantsherein as they are not party to the same. Thus the settlement by someplaintiffs would not disentitle appellants to get relief of injunction. 18.Once the plaintiff filed suit claiming that he is in possessionof suit property and he proves his possession on the basis of cogentevidence on record, it becomes obligatory for the defendants to showthat the plaintiff had lost possession at any point of time. There is920.sa393.94.odt8 of 9 absolutely no evidence on record to that effect. In such circumstances,having regard to the evidence led before the Trial Court, there was noother option for the Trial Court but to decree the suit partly to the extentof granting injunction against the defendants in favour of plaintiff inrespect of the suit property.19.In view of the above discussion, substantial questions no.(i),(ii) and (iv) of law are answered in affirmative. Question of law (iii)stands answered in negative. Impugned judgment and decree passed bythe Trial Court and confirmed by the First Appellate Court are hereby setaside. R.C.S. No. 22/1978 stands decreed partly in following terms:(i)Suit is partly decreed with cost.(ii)Defendants No.1 and 2 their servants and agents arerestrained from causing obstructions to the plaintiffs (appellants inSecond Appeal) possession over suit properties, in any manner.20.Appeal stands allowed partly in above terms. (R. M. JOSHI, J.)ssp920.sa393.94.odt9 of 9