High Court
Legal Reasoning
369.1996SA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 369 OF 1996Sayyaji S/o Kishan, since deceased,through his heirs and legal representatives-1.Ratan S/o Sayyaji(Since deceased) Through her L.Rs. a)Sambai W/o Sayyaji, aged 71 years, occu. agriculture, R/o Dharmabad, Tq. Biloli, Dist. nanded. b)Laxmibai w/o Ratan, aged 45 years, occ : agriculture and household, R/o Dharmabad, Tq. Biloli, Dist. Nanded.c)Subhash S/o Ratan, aged 26 years, occu : agriculture, R/o Dharmabad, Tq. Biloli, Dist. Nanded. d)Indu w/o Ananda Haujekar, age 24 years, occ : household, R/o Dharmabad, Tq. Biloli, District Nanded. e)Babu s/o Ratan, aged 22 years, occu. agriculture, R/o Dharmabad, Tq. Biloli, Dist. Nanded. f)Dhamsheela d/o Ratan, aged 12 years, minor, under guardianship of her mother No.1 (b) above. 2.Sidram S/o Sayyaji, aged 43 years,Occ. Agriculture, R/o Dharmabad, Tq. Biloli, Dist. Nanded.3.Vasant S/o Sayyaji, aged 37 years,Occ. Agriculture, R/o Dharmabad,Tq. Biloli, Dist. Nanded.1/11 369.1996SA.odt4.Manohar S/o Sayyaji, aged 36 years,Occ. Agriculture, R/o Dharmabad,Tq. Biloli, Dist. Nanded.5.Uttam S/o Sayyaji, aged 34 years,Occ. Agriculture, R/o Dharmabad,Tq. Biloli, Dist. Nanded.6.Sambai W/o Sayaji, aged 69 years,Occ. Agriculture, R/o Dharmabad,Tq. Biloli, Dist. Nanded.7.Kashibai W/o Sayyaji, aged 49 years,Occ. Agriculture, R/o Dharmabad,Tq. Biloli, Dist. Nanded.8.Kamal W/o Eknath, aged 41 years,Occ. Household, R/o Purna,Tq. Basmath, Dist. Parbhani.(Transpose to Respondent No.3vide Addl. Registrar's order dated 12.06.96) 9.Nilabai D/o Sayyaji, aged 26 years,Occ. Household, R/o Dharmabad,Tq. Biloli, Dist. Nanded.10.Yamunabai W/o Malhari, aged 33 years,Occ. Agriculture, R/o Nizambad,Dist. Nizambad (A.P.) ...APPELLANTS(Heirs & L.Rs. of orig. Plaintiff)VERSUS1.Shrikishan S/o Laxminarayan Mandhane,since deceased through his heirs andlegal representatives :1/1Satyanarayan S/o Shrikishan Mandhane,aged 47 years, Occupatio Business,R/o Dharmabad, Tq. Biloli, Dist. Nanded.2/11
Legal Reasoning
369.1996SA.odt1/2Omprakash S/o Shrikishan Mandhane,aged 37 years, Occ. Business,R/o Dharmabad, Tq. Biloli, Dist. Nanded.1/3Narayandas S/o Shrikishan Mandhane,aged 34 years, Occ. Business, R/oDharmabad, Tq. Biloli, Dist. Nanded. 1/4Janabai W/o Shrikishan Mandhane,aged 62 years, Occ. Household,R/o Dharmabad, Tq. Biloli, Dist. Nanded.1/5Sitadevi Gilda, adult, Occ. Household,R/o Latur.1/6Kiran Somani, adult, Occ. Business,R/o Sailu, Dist. Parbhani.2.Prayagjibhai Patel, aged 68 years, Occ. Business, R/o Dharmabad, Tq.Biloli, Dist. Nanded, presently at Sadhali group Co-operative CottonSale Ginning and Pressing Society Ltd., at Sadhali, Tq. Sinnur, Dist. Baroda, Gujrath State. 3.Kamal W/o Eknath, Age : 41 years, Occ : Household, R/o Purna, Tq. Basmath, Dist. Parbhani. ..RESPONDENTS…Sr. Adv. P. R. Katneshwarkar i/b Adv. V.S. Dhotare and Adv. A.A. Fulfagar,Advocate For Appellant Nos.1(b) and 1(f)Adv. H.H. Padalkar, Advocate for Respondent No. 1/2…CORAM:ROHIT W. JOSHI, J.RESERVED ON :20th MARCH, 2025PRONOUNCED ON:10th JUNE, 2025 3/11 369.1996SA.odtJUDGMENT :1.The appellants in the present second appeal are legalrepresentatives of original plaintiff. The plaintiff had filed suit, beingRegular Civil Suit No.134 of 1979 for declaration that he had becomeowner of suit property, being land bearing survey no.208 admeasuring1.19 HR situated at village Ratnali, Tq. Biloli, Dist. Nanded by way ofadverse possession and for injunction restraining the defendants fromdisturbing his possession over the suit property. 2.It is case of the plaintiff that somewhere around the year1958 and 1959, he had advanced a loan of Rs.10,000/- to defendantno.3. The plaintiff claimed that defendant nos.2 and 3 were partners andloan was obtained by defendant no.3 for both the partners. The plaintiffclaimed that the loan was to be repaid within period of six months andbecause the loan was not so repaid, he entered the property forcibly on01.04.1960 and started cultivating the same. The plaintiff thus claimedto be holding possession of the suit property adverse to the interest ofthe real owner from 01.05.1960 and contended that he had becomeowner by adverse possession w.e.f. 02.05.1972. According to theplaintiff, defendant no.2 was the owner of the suit property. It will bepertinent to state that defendant no.2 could not be served in the civil suitand suit came to be dismissed against defendant no.2 on that count. 4/11 369.1996SA.odt3.The learned Trial Court framed issues in the matter and onrecording evidence was pleased to dismiss the suit on 05.01.1985. Thelearned Trial Court has held that the plaintiff had failed to prove his caseof adverse possession, however, the learned Trial Court has recordedfindings with respect to possession over some portion of the suit propertyin favour of the plaintiff. In this regard, it will be pertinent to mentionthat there are constructed buildings, houses and huts standing on thesuit property. The suit property has a barbed wire fencing with a gate.The learned Trial Court has held that the plaintiff had failed to provepossession over the constructed portion of the suit property, but was inpossession of the open land in the suit property. It will be pertinent tomention that the Trial Court had appointed Commissioner for inspectionof the suit property. The Commissioner report is at Exhibit-49. Perusal ofthe Commissioner report indicates that huts and houses were existing onthe suit property. Some huts were constructed alone side Ratnali-Dharmabad road and some huts were construed alone eastern sideportion. The main buildings appear to be centrally located. 4.Aggrieved by the said judgment and decree dismissing thesuit, the legal representatives of deceased plaintiff preferred an appeal,being Regular Civil Appeal No.105/1985, which came to be renumbered5/11 369.1996SA.odtas Regular Civil Appeal No.5/1993. The appeal came to be dismissedvide judgment and decree dated 21.07.1995 passed by the learnedAdditional District Judge, Biloli. The learned First Appellate Court hasheld that the suit was rightly dismissed with respect to the declaration ofownership by adverse possession since according to the plaintiff,defendant no.2 was owner of the suit property and suit was dismissedagainst defendant no.2 on account of failure to effect service on him andas such, the relief of declaration could not be granted in the absence ofdefendant no.2. As regards physical possession also, the learned FirstAppellate Court has held that the plaintiff had failed to prove physicalpossession over part of the suit property i.e. portion of open land in thesuit property. 5.Aggrieved by the said concurrent decrees, the presentSecond Appeal came to be preferred. The present Second Appeal came tobe admitted vide order dated 08.08.1996, which reads as under :- "There involves substantial question of law on the point ofadverse possession." 6.Heard Shri P.R. Katneshwarkar, learned Senior Advocate forappellants. He has contended that the plaintiff had come up with a clearcase that he had forcibly entered in the suit property and had started6/11 369.1996SA.odtcultivating the same from 01.05.1960. He contended that the plaintiffhad proved his possession over the suit property by leading properevidence including documentary evidence in the form of 7/12 extractsand tax receipts. He contended that the learned Trial Court had rightlyheld that the plaintiff had proved his possession over the suit property.The learned Senior Advocate contended that the learned First AppellateCourt has erred in reversing the finding regarding possession of the suitproperty of the plaintiff. He further contended that in view of possessionbeing proved, decree for declaration of ownership of adverse possessionought to have been passed in favour of the plaintiff. He furthercontended that even if declaration of ownership is not granted, relief ofperpetual injunction against dispossession without following due processof law ought to have been granted. 7.Per contra, Shri H.H. Padalkar, learned Advocate for therespondents contended that both the Courts have rightly dismissed thesuit with respect to prayer for declaration by adverse possession. He alsocontended that the learned First Appellate Court has recorded properfindings on the point of physical possession and has rightly reversed thefindings recorded by the learned Trial Court as regards physicalpossession over the suit property. 7/11 369.1996SA.odt8.The plaintiff has categorically stated in the plaint that suitproperty was owned by defendant no.2. The suit is admittedly dismissedagainst defendant no.2 on account of failure on the part of the plaintiffto effect service of suit summons on defendant no.2. Since the plaintiffprayed that he had become owner by adverse possession while defendantno.2 was the real owner, no fault can be found with respect to dismissalof his suit with respect to prayer for declaration of ownership by adversepossession. 9.As regards the alleged physical possession of the plaintiff, itneeds to be mentioned that the appeal is admitted on the question of lawon the point of adverse possession. However, learned Senior Advocatecanvassed submissions on the findings regarding physical possession aswell to contend that decree of perceptual injunction needs to be granted.Reliance is placed on 7/12 extracts to contend that the plaintiff was inpossession of the suit property. The learned First Appellate Court hasrecorded that the entry regarding possession of plaintiff in 7/12 extractswas recorded as `driver'. The learned First Appellate Court has held thatthis would imply that he was not in alleged possession in his individualright but as a driver of Ginning and Pressing Factory, which wasoperating in the suit property at one point of time. The learned First8/11 369.1996SA.odtAppellate Court has also observed that the plaintiff had failed to bring onrecord any independent evidence regarding cultivation of the land. 10.7/12 extracts relied on by the plaintiff mention the word`driver'. Since the plaintiff is relying on the said document, it wasnecessary for the plaintiff to explain the said circumstance. It wasnecessary for the plaintiff to explain why the word driver was appearingin the 7/12 extracts. However, there is no explanation in this regard bythe side of plaintiff. It must be stated that if possession of a person is as aservant or agent of another, the possession cannot be regarded asindividual possession so as to claim decree for perpetual injunction. Apossession of servant is possession of his master and possession of agentis possession of the principal. 11.Admittedly, there are building structures and hutsconstructed on the suit property. The suit property is fenced and has agate installed for entrance. Even the findings by the learned Trial Courtin favour of the plaintiff holding possession is only with respect to openportion in the suit property. The learned Trial Court has also held thatthe plaintiff has failed to prove his possession over constructed portion.A perusal of the cross-examination of the plaintiff's witness will9/11 369.1996SA.odtdemonstrate that the plaintiff had failed to establish possession overconstructed buildings and huts. Findings in this regard cannot be faulted.12.As regards the open portion, the finding of the learned TrialCourt is difficult to accept. Perusal of Commissioner's report indicatesexistence of several structures including huts. The structures situated inthe middle portion of the land. The huts are constructed on the easternside. Substantial portion of land is covered under the said huts on theeastern side. Likewise there are huts along the north-west boundary ofthe property. The property is fenced from all sides and also has aentrance gate. Open land is appurtenant to the buildings. It is obviousthat the possession of land is with a person holding possession of thestructures. Apart from this, learned First Appellate Court has rightlyplaced reliance on Commissioner's report to hold that the open portionof land was also not under cultivation. It is also necessary to state thatGinning and Pressing Factory was being operated from the suit property.In that view of the matter, the learned First Appellate Court has rightlydisbelieved the case of plaintiff as regards physical possession. 13.The learned senior counsel for the appellants also contendedthat defendant no.1 had failed to prove his ownership over the suitproperty. It is argued that defendant no.1 claims to have purchasedproperty from Sadali group, however, the sale deed in his favour was10/11 369.1996SA.odtexecuted by one Mr.Joshi acting as constituted attorney of Sadali groupand the power of attorney was not proved. There is no need to go intosaid aspect since the plaintiff had failed to prove his possession over thesuit property. 14.In view of the discussion above, substantial question of lawframed in the appeal is answered against the appellants and in favour ofthe respondents. As regards the physical possession and decree forinjunction in that regard no substantial question of law arises, as wassought to be canvassed by the appellants. Second Appeal is, therefore,dismissed with costs. 15.Civil Application, if any, stands disposed of. [ROHIT W. JOSHI]JUDGESGA/11/11