1. Gundu Sandu Gummaidu 2. Mainabai w/o Moti Kawal v. 1. Asaram Bhagwan Chandwade
Case Details
903-SA-328-1992.doc Varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 328 OF 1992 1. Gundu Sandu Gummaidu 2. Mainabai w/o Moti Kawal Vs. 1. Asaram Bhagwan Chandwade … Appellants … Respondent Shri M.M. Patil (Beedkar)- Advocate for Appellants. CORAM : GAURI GODSE, J. RESERVED ON : 2nd MARCH 2023 PRONOUNCED ON : 3rd MAY 2023 JUDGMENT: 1. This Second Appeal is preferred by the original Plaintiff for challenging the concurrent Judgments and Decrees passed by both Courts, thereby dismissing the Suit filed for possession of the suit property. The suit was filed based on the title of the suit property by relying upon a registered gift deed executed by the original owner in favour of the father of the Appellants. The Respondent is claiming to be in possession of the suit property as owner by claiming to be the heir of the original owner. In the alternative, the Respondent has also raised a plea of perfecting title by way of adverse possession. 2. The Second Appeal was admitted on 28th July 1992 by passing the following Order:- “ Heard. This involves a substantial question of law regarding title by adverse possession which is a mixed question of law and facts. Admit. Notice.” Page 1 of 10 903-SA-328-1992.doc 3. The Appellants filed suit for possession based on the title. It was contended that one Tulsiram Kaluram Chandwade was the original owner of the suit property. The original owner was the maternal uncle of the father of the Appellants. Tulsiram treated the father of the Appellants as his son, and he was residing with the said Tulsiram. The Appellants contended that Tulsiram executed a registered gift deed dated 30th December 1959 in favour of the Appellants’ father and had also delivered the possession of the suit property to the father of the Appellants. Tulsiram died issue-less on or about 17th December
Legal Reasoning
1962. Thus, it was contended by the Appellants that his father had become the exclusive owner and was in possession of the suit property till 1969 when the father of Respondent illegally occupied the suit property. 4. The Respondent appeared in the Suit and filed written statement, and denied the suit claim. The Respondent specifically denied that the Appellants’ father was at any time in possession of the suit property. The Respondent further contended that Tulsiram was in possession of the suit property till his death, and thereafter, the father of the Respondent was in possession of the suit property as owner and heir of the deceased Tulsiram. Respondent denied the validity of the gift deed and contended that it was never acted upon. It was contended that the suit was bad for non-joinder of other heirs of the father of the Appellants. Thus, the Respondent claimed to be the owner of the suit property and specifically denied the title of the Appellants. The Respondent relied upon an Order dated 6th April 1964 passed by the Special District Magistrate in proceedings under section 145 of the Code of Criminal Procedure to support his contention that he was in long-standing possession of the suit property. The Respondent, in the alternative, claimed to have perfected title by way of Page 2 of 10 903-SA-328-1992.doc adverse possession. 5. The learned trial Judge dismissed the suit. The learned trial Judge held that the Appellants proved that there was a valid gift deed, and the title of the suit property was transferred to the father of the Appellants and, after his death, to the Appellants. The learned trial Judge held that the Respondent failed to prove the plea of adverse possession. The learned Trial Judge held that the suit was based on title. Thus unless Respondent proved that he was in continuous adverse possession by admitting title of Appellants, he cannot claim any title by way of adverse possession. The learned Trial Judge, however, dismissed the Suit for non-joinder of all the heirs of the Appellant’s father as necessary parties. 6. Being aggrieved by the dismissal of the suit, the Appellants preferred an appeal. The First Appellate Court framed points for consideration as to whether the suit is bad for non-joinder of necessary parties, whether the Respondent has proved that he has become the owner of the suit property by adverse possession and whether the Appellants are entitled to seek possession of the suit property. The First Appellate Court confirmed the findings of the Trial Court and accepted the title of the Appellants to the suit property. However, the First Appellate Court held that the Respondent had perfected the title of the suit property by adverse possession. The First Appellate Court did not accept the finding of the Trial Court on the point of non-joinder of necessary parties. However, based on the findings recorded with respect to the title of the Appellants and Respondent perfecting the title by adverse possession, the First Appellate Court dismissed the Appeal filed by the Appellants and confirmed the dismissal of the Suit by the Trial Court. Page 3 of 10 903-SA-328-1992.doc 7. I have heard the learned counsel for the Appellants. None appeared for the Respondent. The learned counsel for the Appellants made the following submissions; findings recorded by the first Appellate Court on adverse possession are perverse. The Trial Court had rightly appreciated the evidence on record and held that the Respondent failed to prove that he had perfected the title by way of adverse possession. Respondent had pleaded possession on the strength of ownership, being the heir of Tulsiram. Therefore, the first Appellate Court could not have presumed possession on the basis of revenue record. When Respondent is disputing Appellant’s title and is asserting his own title, there is no question of Respondent perfecting his title by adverse possession. Respondent has never given up his plea of ownership, claiming to be heir of Tulsiram. Therefore, Respondent cannot claim title by way of adverse possession. The first Appellate Court had accepted the findings recorded by the Trial Court on the validity of the gift deed. Thus, the Appellant’s ownership of the suit property was accepted. As the Respondent had failed to prove ownership by adverse possession, he had no right to retain possession of the suit property. 8. The learned Counsel for the Appellants relied upon the decisions of the Hon’ble Supreme Court in the cases of Uttam Chand Vs Nathu Ram 1, Dagadabai Vs Abbas@ Gulab Rustum Pinjari,2 and Hemaji Waghaji Jat Vs Bhikhabhai Khengarbhai Harijan & Others,3 in support of his submissions that the Respondent is not entitled to retain possession by claiming adverse possession when he has claimed to be in possession on the basis of his title claiming to be heir of the original owner Tulsiram. 1 2 3