Mr. A. D. Kasliwal, Advocate for v. G. Deshmukh h

Legal Reasoning

(1) sa-68-2013IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.68 OF 20131.Abdul Sayeed Khan s/o Abdul Haque Khan,Age: 56 years, Occ. Bsuiness,R/o: Friends Colony,Konkanwadi, Aurangabad.2.Abdul Noor Khan s/o Abdul Haque Khan,Age: 51 years, Occ. Bsuiness,R/o: Friends Colony,Konkanwadi, Aurangabad.3.Abdul Najib Khan s/o Abdul Haque Khan,Age: 46 years, Occ. Bsuiness,R/o: Friends Colony,Konkanwadi, Aurangabad...Appellants(Orig. Plaintiffs)Versus1.Municipal Corporation,Aurangabad, through itsCommissioner.2.The State of Maharashtra,Through the Collector,Aurangabad...Respondents(Orig. Defendants) …Mr. A. D. Kasliwal, Advocate for Appellants.Mr. V. G. Deshmukh h/f Mr. S. S. tope, Advocate for RespondentNo.1.Mr. V. S. Badakh, AGP for Respondent No.2.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 21st APRIL, 2025.ORDER:- 1.The appellants/original plaintiffs impugn judgment anddecree dated 20.06.2012 passed by District Judge, Aurangabad inRegular Civil Appeal No.19/2010, thereby upholding judgment anddecree dated 31.10.2009 passed by Civil Judge, Senior Division, (2) sa-68-2013Aurangabad in Special Civil Suit No.189/2005, by which claim ofappellants/plaintiffs for grant of decree of possession in respect ofsuit property has been rejected. (Hereinafter, parties are referredto by their original status for the sake of convenience and brevity).2.The facts giving rise to present Second Appeal can besummarized as under:The suit property is a plot bearing no.27, present City SurveyNo.16566 admeasuring 1727.27 square yards situated inUsmanpura, Aurangabad. According to plaintiffs, suit plot wasallotted by respondent no.1 to their father namely Abdul HaqueKhan under Kabala dated 16 Meher 1357 Fasli i.e. in the year 1941against consideration of Rs.855/-. Abdul Haque Khan was put intopossession of suit property. After demise of Abdul Haque Khan,plaintiffs searched documents left behind by him and came across acopy of Kabala in respect of suit property. They obtained certifiedcopy of Kabala from Registration Office. According to plaintiffs,during lifetime of Abdul Haque Khan, he could not pay attention tosuit property, as he was occupied in his business. The plaintiffswere not aware about aforesaid Kabala till they traced outdocuments. The suit property is still standing in the name ofrespondent no.1-Municipal Corporation, Aurangabad and nowsome other persons are in possession and seeking to regularizetheir possession. According to plaintiffs, they being legal (3) sa-68-2013representatives of original Kabala holder, are entitled to succeedproperty and seek possession.3.The contents of plaint were refuted by respondent no.1denying document of title/Kabala so also disputed description ofsuit property. According to them, suit property is standing in thename of respondent no.1 in record of City Survey, which was neverquestioned by plaintiffs’ father and plaintiffs. Their claim is basedon false and fabricated documents.4.The Trial Court framed issues, recorded evidence of partiesand dismissed suit. The Appellate Court concurred with findingsrecorded by Trial Court. Hence, this Second Appeal.5.Mr. Kasliwal, learned Advocate appearing for appellantsvehemently submits that present Second Appeal involvessubstantial questions of law as to interpretation of documents atExhibit-57, titled as Kabala. It is a registered document. Thecontents thereof clearly shows that father of plaintiffs was allottedsuit property with right to further transfer, which constitutesabsolute right of ownership. According to him, condition as to raiseconstruction within period of one year was subject to furthereventuality of obtaining permission for construction fromMunicipal Council/Local Fund. Since plaintiffs’ father neverapplied for construction permission, further requirement of raising (4) sa-68-2013construction within period of one year cannot be insisted upon.The property was put into possession of plaintiffs’ father onpayment of consideration. Therefore, plaintiffs’ ownership inrespect of suit plot ought to have been accepted. Eventually, decreefor possession and injunction ought to have been passed.6.Plain reading of document at Exhibit-57 would show thatMunicipal Council/Local Fund allotted suit plot subject to conditionof raising construction as per permission granted by CompetentAuthority within period of one year, failure to do so, hadconsequence of forfeiture of all rights of allottee or his legalrepresentatives. Similarly, amount deposited in pursuance to grantof Kabala was to be forfeited.7.The plaintiffs’ case is that allotment of plot was for raisingconstruction, which was to be raised within period of one year. Mr.Kasliwal submits that construction was to be raised within periodof one year after obtaining permission from Local Fund. However,it is difficult to countenance with his submissions. The plain andclear reading of Kabala would show that then Local Fund hadallotted property for raising construction as per permission, whichwas to be completed within period of one year. As such, raisingconstruction as per permission was a condition precedent forretaining right over property. From plain reading of document, itcannot be gathered that construction was to be raised within one (5) sa-68-2013year from the date of obtaining construction permission. It onlystipulates that construction must be preceded by constructionpermission of Local Fund.8.The rule for interpretation of document is that intention ofparties to the covenant has to be gathered and contents ofdocuments must be read in such a manner that intention of partiesis given full effect. Apparently, Local Fund allotted property forraising construction over open plot by way of Kabala with riderthat such construction must be raised within period of one year,else allotment/Kabala itself would stood cancel and no right on thebasis of such Kabala would be claimed thereafter. Both Courtshave elaborately considered and interpreted document containingunequivocal and unambiguous term regarding raising ofconstruction within period of one year. There is nothing to gatherthat after obtaining construction permission, starting point of oneyear to be counted. Marathi translated version of aforesaid Kabalais placed at Exhibit-47, PW-2 who is an Advocate, conversant withtranslation of document, has accepted that Marathi version wouldprevail over English translation of Kabala, which connotes thatindependent time for obtaining construction permission was notstipulated to comply condition of raising construction within periodof one year. (6) sa-68-20139.Pertinently, if interpretation as sought to be advanced byplaintiffs is accepted, there would be anomalous situation. Theplaintiffs, who are required to obtain construction permissionwould take no steps to secure permission for years together andretain property without raising construction under pretext thatsuch construction permission is not yet received. Therefore,interpretation sought to be advanced on behalf of plaintiffs wouldread to absurdity, contrary to intention of parties as could begathered from contents of document. In that view of matter, thisCourt finds that interpretation of document as adopted by TrialCourt as well as Appellate Court is in tune with intention of partiesand there cannot be dissent. 10.One more aspect of matter is relevant. The document ofKabala is of the year 1941. It was never acted upon by father ofplaintiffs during his lifetime. The plaintiffs have first time raisedclaim in year 2009 contending that they could find document ofKabala after death of their father. The property has beenconsistently mutated in the name of the Local Fund, MunicipalCouncil and Municipal Corporation. The original Kabala is notproduced on record. The plaintiffs are coming with case that theycould obtain certified copy from office of Registration, however,Trial Court observed that such copy is obtained from CollectorOffice. The plaintiffs are having no personal knowledge as regards (7) sa-68-2013to grant of Kabala. They have not seen original document. Thedocument at Exhibit-57 appears to be issued by District CollectorOffice. It is in Urdu language. The plaintiffs relied upon Englishtranslation of the same. Therefore, existence of Kabala itself isdoubtful. There is nothing on record to show that plaintiffs’ fatherwas put into possession of property. Since 1971 City Surveyscheme is applied to Aurangabad and record of City Surveyconsistently mentions name of Aurangabad Municipal Council asowner. The Trial Court has, therefore, recorded findings thatplaintiffs failed to prove that suit plot was allotted to their father.The Appellate Court also endorsed aforesaid findings. Therefore,basically plaintiffs failed to prove existence of Kabala andallotment of suit property. Even assuming existence of suchdocument, plaintiffs could not establish any right to raise claim forpossession and perpetual injunction.11.In result, no substantial question of law is made out forconsideration in this Second Appeal. Second Appeal sans merit.Hence, Second Appeal stands dismissed. (S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025