High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 83 OF 1997WITH CIVIL APPLICATION NO. 4468 OF 1994DIGAMBARRAO LAXMANRAO BORAWAKEVERSUSJANAKSINGH IBAJI ASARMs. Achal Y. Raghuwanshi, Advocate a/w Mr. Amardep Naiknaware,Advocate h/f Mr. Deelip Patil Bankar, Advocate for the appellant CORAM: R. M. JOSHI, J.DATE: 13th FEBRUARY, 2024P.C. :-1.This Second Appeal under Section 100 of the Code of CivilProcedure takes exception to the judgment and decree dated 6thSeptember, 1993 passed by the First Appellate Court in Regular CivilAppeal No. 258 of 1985 wherein the judgment and decree dated 26thMarch, 1985 dismissing Regular Civil Suit No. 481 of 1982 is reversed.2.Parties are referred to by their nomenclature in originalproceeding for the sake of convenience.3.The Plaintiff filed suit for injunction against the Defendantrestraining him from obstructing the use of way/road as specificallydescribed in paragraph No. 1B of the plaint. It is the case of the Plaintiffthat the father of the Defendant was owner of C.T.S. No. 1310 MunicipalHouse No. 1515 situated at Shrirampur. It is further contended that opensa83.1997.odt1 of 6 space admeasuring 45x12 ft on the eastern side in CTS No. 1310Municipal House No. 1015 was given to the Plaintiff by the Defendant onrent of Rs.75/- per annum, and Plaintiff was a monthly tenant. On thebasis of rent note executed in favour of the Plaintiff on 7th June, 1971 theDefendant is said to have accepted the rent from the Plaintiff after deathof his father. It is further case of the Plaintiff that 14 ft wide road is keptcommon on the eastern side in CS No. 1310. Plaintiff has further claimedabout having purchased 4R land on the western side of CTS No. 861-Bunder sale deed dated 26th February, 1971 from the father of Defendant.According to him the suit way is a common way for the access to theproperty purchased by him as well as tenanted property. It is contendedby the Plaintiff that the Defendant is likely to close the said way andwhich will make him difficult to run his shop. On these averments suit forinjunction came to be filed.4.Defendant filed written statement opposing the contentionsraised by the Plaintiff. It is denied that the rent note dated 7th June, 1971was issued by his father in favour of Plaintiff. The contentions of thePlaintiff with regard to the common way is also denied by the Defendant.It is in fact claimed that no such way is in existence as the same is notshown in the town planning scheme. It is further claimed that the allegedrent note is not properly stamped and hence it cannot be relied upon.sa83.1997.odt2 of 6 5.Learned Trial Court framed the issues at Exhibit 29 andrecorded evidence of Plaintiff as well as Defendant. Plaintiff examined hisconstituted attorney whereas the Defendant examined himself before theTrial Court. Learned Trial Court has held that the Plaintiff has failed toprove the possession over the open space admeasuring 45x12 ft andexistence of common way to approach the open space and dismissed thesuit. Learned First Appellate Court after re-appreciating the evidence onrecord reversed the said finding in favour of the Plaintiff and decreed thesuit.6.Present Second Appeal is preferred specifically on thegrounds that the First Appellate Court has committed error in relyingupon Exhibits 40, 41 and 42 on the basis of statements of Defendantwhen those documents were not admissible in law. Issue is also raisedwith regard to the incorrect interpretation of these documents. It is alsoclaimed that there was error committed by the Appellate Court ingranting injunction in respect of the way in absence of the declaration oftitle of the Plaintiff.7.Learned counsel for Defendant submits that in order tosubstantiate the case, Plaintiff ought to have proved that the open spaceas claimed by him is let out to him under the valid rent note. It is arguedthat since the rent note is not registered document nor adequatelysa83.1997.odt3 of 6 stamped it ought not to have considered by the Appellate Court for thepurpose of granting injunction. To support his submission reliance isplaced on the judgment of the Hon’ble Apex Court in case of M/s PaulRubber Industries Private Limited Versus Amit Chand Mitra and Anr., inSpecial Leave to Appeal (Civil) No. 15774 of 2022. It is further arguedthat even otherwise the contents of the rent note are not proved as thePlaintiff has not examined himself or any witness to the said rent notebut has relied upon the testimony of his constituted attorney. It issubmitted that the First Appellate Court has committed error inappreciating the oral evidence on record more particularly the cross-examination of Defendant. It is also sought to be argued that evidence ofdefendant has not been recorded correctly by the Trial Court. Accordingto him the burden to prove the case was on Plaintiff and since thePlaintiff has failed to prove the same the suit ought not to have beendecreed, on alleged admissions of defendant. 8.At the outset it needs to be recorded that the Plaintiff doesnot claim any title over the suit way. However, it is specifically averredthat the either side of the way Plaintiff tenanted as well as ownershipproperty situated. It is his claim that on the basis of rent note dated 7thJune, 1971 the open space came in to his possession and that the overside portion of the property was sold by the father of the Defendant tosa83.1997.odt4 of 6 the Plaintiff by sale deed dated 26th June, 1971.9.The Plaintiff therefore is required to prove that he is inpossession of the open space admeasuring 45x12 ft so also in possessionof the land sold by Defendant’s father to him. In this regard it ispertinent to note that the Plaintiff has examined his constituted attorneyand has relied upon the sale deed and rent note. Thus this is not thecase where initial burden has not been discharged by the Plaintiff. Itwould be necessary to take note of the candid admissions given byDefendant in his evidence before the Trial Court. Defendant admits in nouncertain terms that sale deed (Exhibit 49) came to be executed by hisfather and he was signatory to the said sale deed as a witness. Hefurther accepts that the Plaintiff has started his business in the said 4Rland sold to him. Perusal of Exhibit 49 shows that there is specificmention in this document with regard to the existence of the tenancybetween Plaintiff and father of the Defendant. Defendant further in hiscross-examination has accepted that after the death of his father he isaccepted rent from Plaintiff at the rate of Rs.75/- per annum and hasissued receipt Exhibits 41 and 42. It is further candidly admitted that14ft road is given to the Plaintiff from City Survey No. 1310. It is tritelaw that admissions of a party is best evidence. All these admissionsgiven by the Defendant are more than sufficient to prove the case of thesa83.1997.odt5 of 6 Plaintiff with regard to the right of way as claimed.10.Though it is sought to be argued on behalf of the Defendantthat the recording of the evidence of the Defendant is incorrect and thereis discrepancy in English and Marathi recording, however, no any motionis moved before the Trial Court for correcting the said evidence. Sincethe language of the Court is Marathi the recording of the Marathi willprevail over English recording. It is not open for this Court at this stageto hold that the Trial Court has not correctly recorded evidence. In anycase when no specific dispute is made before Trial Court with regard tothe correctness of the recording of the evidence, it is not open for theDefendant to make any grievance about the same at this belated stage.11.In the aforestated circumstances having regard to the candidadmissions of the Defendant with regard to the right of the Plaintiff overthe suit property, it was not necessary for the First Appellate Court to gointo the issue about the validity of rent note etc. As such no substantialquestion of law involves in this Appeal, as this Court finds no perversityin the findings recorded by First Appellate Court. Pending CivilApplication, stands disposed of.(R. M. JOSHI, J.)sspsa83.1997.odt6 of 6