High Court

Legal Reasoning

1 sa615.2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.615 OF 2021WITHCIVIL APPLICATION NO.13519 OF 2021 IN SA No.615 of 2021Sopan Yeshwant Chaudhari,age 65 years, Occ. Agri,R/o DHP Nagar, Backside,Balmukutangan School, Nasik,Tq. & District Nasik.Appellant (Orig. defendant.)VersusShantabai Govardhan Borole,age 74 years, Occ. Agri,At Post Kolwad, Near Swaminarayan Mandir,Yawal, Tq. Yawal, Dist. Jalgaon.Respondent. (orig. plaintiff)...Advocate for Appellant : Mr. A. M. Gholap Advocate for Respondents : Mr. V B. Patil ...CORAM :S. G. CHAPALGAONKAR, J.Reserved on :December 04, 2024Pronounced on:January 09, 2025FINAL ORDER :-1.The appellant/original defendant impugns thejudgment and decree dated 3.05.2021 passed in R.C.A. No.7 of2017 by the District Judge-2, Bhusawal, thereby upholding thejudgment and decree dated 7.12.2016 passed by the CivilJudge, Junior Division, Yawal in R.C.S. No.46 of 2013. (For the 2 sa615.2021.odtsake of brevity, parties hereinafter are referred to as per theiroriginal status in the suit).2.The respondent/Plaintiff filed R.C.S. No.46 of2013 claiming relief of possession and mesne profit of 12Rland out of Gat No.459 situated at Kolwad, Taluka Yawal.Plaintiff contends that land gat No.459 was jointly cultivatedby its holders. Lateron, they mutually decided to partitiontheir holdings. Eventually, they applied to the Tahsildar, Yawalfor approval of partition under Section 85 of the MaharashtraLand Revenue Code (for short ‘the Code’). They shownapproximate area of respective sub-division while recording thepartition. Tahsildar approved their request vide order dated1.7.1999. Since then, land was divided in four parts i.e459/1/2/3 & 4. The sub-division held by the plaintiff’s vendorwas allotted gat No.459/3 admeasuring 2H-23R. Plaintiffpurchased same under registered sale-deed dated 20.8.2003.3.On 3.6.2010 joint measurement of the land wascarried by T.I.L.R. Mr. Suhas Jagdish Saraf for fixation ofboundaries. It was revealed that defendant, who is owner ofgat no.459/4 is in possession of 2H 94R land as againstownership of 2H 83R, whereas, plaintiff was found in 3 sa615.2021.odtpossession of 2H-11R as against ownership of 2H 23R.Plaintiff requested defendant to hand over possession of excessland to him, but defendant avoided to do so. Plaintiff,therefore, addressed legal notice dated 26.3.2011 throughAdvocate Kawadiwale calling upon defendant to handoverpossession of excess area. But defendant failed to do so.However, on 3.5.2011 all sub-division holders from gat no.459executed a consent deed on bond paper of Rs.100/- andmutually agreed to measure entire gat no.459 and fix theboundaries of respective area as per 7/12 extract and continueownership and possession.4.On 6.3.2012 a joint application was made tosurveyor for measurement and fixation of boundaries ofrespective sub-divisions. Consequently, on 4.6.2012measurement was carried and boundaries of sub-divisions weredemarcated as per area shown in the 7/12 extract. Thedefendant was found in possession of excess 12R land out ofplaintiff’s land in gat no.459/3. Plaintiff asked for handingover possession; but defendant avoided to do so. Plaintiffagain addressed legal notice dated 1.6.2013 to defendantthrough Advocate Mr.Gholap, which has been falsely replied by 4 sa615.2021.odtdefendant on 11.6.2013. Taking this as a cause of action, thesuit has been instituted seeking possession of 12R land andmesne profit.5.Although, defendant refuted plaintiff’s claim,admitted averments in paragraphs no.1 to 3 of the plaint bywhich plaintiff asserted his ownership of land gat no.459/3admeasuring 2H 23R and ownership of defendant over landgat no.459/4 admeasuring 2H 83R so also fact that originalland holders in gat no.459 have partitioned land by metes andbounds, mutated tentative area of lands in respective divisionand applied for approval of such partition to Tahsildar Yawal,which has been ultimately sanctioned vide order dated1.7.1999. Eventually, land gat no.459/3 admeasuring 2H 23Rwas recorded in the name of predecessor-in-title of the plaintiffand land admeasuring 2H 83R was recorded in the name ofdefendant and his wife.6.Defendant further contends that his possessionover the land is continue since his forefathers. Noencroachment is made by him. In fact, plaintiff removed acement concrete pole, which was in existence for last forty 5 sa615.2021.odtyears on Northern bandh of defendant’s field and raised falseclaim based on collusive measurement.7.The Trial Court framed issues, recorded evidenceof the parties and finally, decreed suit directing defendant tohand over possession of 12R land, as claimed, further directedinquiry as to mesne profit. Aggrieved defendant filedR.C.A.No.7 of 2017 before the District Judge, Bhusawal whichcame to be dismissed upholding the decree passed by the TrialCourt. Hence this second appeal.8.This Court upon hearing respective parties, framedfollowing substantial questions of law vide order dated15.2.2024. Substantial question of law reads thus :-i)Whether the Trial Court and First AppellateCourt committed error in decreeing the suitwithout considering the pleadings of theplaintiff and admitted fact that it is not the caseof encroachment of the suit land but pursuantto the arrangement between the erstwhile jointowners of the entire land, the possession washeld by said respective parties approximately ?ii)Whether both the Courts have committed errorin ignoring the admission of plaintiff that she isin possession of the same land since the time ofpurchase till date of recording evidence ?9.On 26.3.2024 this Court (Coram:Y.G.Khobragade, J.)directed that second appeal to be placed for final hearing at 6 sa615.2021.odtthe stage of admission. Thereafter, vide order dated 15.7.2024this Court (Coram : Sandipkumar C. More, J.) admitted appealon aforesaid substantial questions of law and posted the samefor final hearing. On 4.12.2024, learned advocates appearingfor respective parties advanced oral submissions and laterontendered written notes of arguments.10.Mr. Gholap, learned advocate appearing for theappellant submits that impugned decrees are perverse.Plaintiff admitted during cross-examination that her possessionis continued as she received at the time of sale-deed, so alsodefendant is possessing same land as he possessed on date ofsale-deed. According to him, possession of the partiescontinued as owners as per partition in the year 1999 hence itis not the case of encroachment. According to Mr. Gholap, allsub-division holders from gat no.459 continued theirpossession as it was existing even prior to the partition. Thearea of holding was tentatively mentioned at the time ofpartition without actually measuring land. Tahsildar approvedsub-division/partition on the basis of approximate area.Consequently, entries were effected in Record of Rights againstsubdivisions, therefore, on the basis of mutation entry, 7 sa615.2021.odtownership never transferred. If subsequent measurementdepicts variation in the area possessed by the respective landholders and recorded in the 7/12 extract there cannot be acase of removal of encroachment and restoration of possession,but it would be a case for correction of record in tune witharea possessed by land holders. However, Courts below relyingupon report of faulty measurement, passed the decree. Mr.Gholap, would further submit that 7/12 extract or so-calledconsent deed Exhibit 28 are not documents of title and doesnot confer the right to seek possession in favour of the plaintiff.According to him, measurement map at Exhibit 62 isunreliable. The defendant was not served with notice ofmeasurement nor were adjoining land holders noticed. TheT.I.L.R. has given vital admissions during cross examinationthat shaken sanctity of measurement report and map.11.Per contra, Mr. Patil, learned advocate appearingfor the respondent/plaintiff would urge that defendantalongwith land holders of gat no.459 had agreed for jointmeasurement of land and fixing boundaries of respective sub-divisions as per the area shown in the 7/12 extract.Consequently, joint measurement is carried by the T.I.L.R. Shri 8 sa615.2021.odtS.J. Saraf. The defendant found in possession of 2H 94R areaas against 2H 83R recorded in the 7/12 extract. Plaintiff’s areais found less by 12R as against the area of 2H 23R as recordedin the 7/12 extract. Decree passed by the Trial Court andconfirmed by the Appellate Court is in consonance withpleadings and evidence pressed into service. No substantialquestion of law emerges in this appeal. Hence, he urges todismiss the appeal.12.Having considered submissions advanced by thelearned advocates appearing for the respective parties, it canbe observed that land gat no.459 was jointly cultivated by therespective land holders. In the year 1999, they subdivided itinto four parts and applied for mutating partition effected bymetes and bounds showing approximate area within ownershipand continued the cultivation. Learned Tahsildar approvedsub-division of the land vide his order dated 1.7.1999.Consequently, gat no.459 has been divided into four parts. Thearea of particular part has been recorded in 7/12 extract,however, the boundaries were to be fixed after themeasurement. 9 sa615.2021.odt13.In the year 2010, measurement was carried underorder of Tahsildar. Mr. S.J. Saraf was T.I.L.R. In his report,defendant was shown in possession of excess area thanrecorded in his name. It appears that parties did not act uponhis report dated 3.6.2010 and finally arrived at consensus tocause re-measurement and fix boundaries in tune with arearecorded in 7/12 extract. Copy of consent-deed is at Exhibit28. It has been duly proved. Defendant was one of thesignatory. His signature and photograph appears on the saiddocument. Even, oral evidence of the plaintiff’s witness, whoare also signatories to document proves its contents. Although,defendant endeavors to deny the document, both the Courtsupon appreciation of evidence concurrently held that thedefendant was party to consent deed.14.In deference to the consent-deed Exhibit-28, ajoint application for measurement was made. Mr. Sonar PW-3was appointed as surveyor. He issued notices to respectiveland holders from gat no.459 and carried measurement on4.6.2012 by plain table method. Defendant’s wife was presentat measurement with other land holders. The report ofmeasurement alongwith map at exhibit-62 confirms possession 10 sa615.2021.odtof excess area of 12R with the defendant and commensuratedeficit area in possession of the plaintiff.15.In this backdrop, first of all it would be necessaryto find out whether plaintiff proves his title over the suitproperty i.e. gat no.459/3 admeasuring 02H 23R. A glance topleadings particularly clause nos.1 to 3 of plaint, alongwithwritten statement shows that the defendant has acceptedassertions in the plaint as regards to plaintiffs ownership of2H 23R land in gat no.459/3. The defendant has also acceptedthat area to the extent of 2H 23R was recorded in the name ofplaintiff’s vendor as per partition by metes and bounds and thesame has been purchased by the plaintiff under registered sale-deed. It is, therefore, evident that there was partition by metesand bounds. All four sub-division holders applied for mutationof the area of respective sub-division and got it sanctionedunder order of Tahsildar vide Section 85 of the Code. Therespective land holders derived ownership of land as permutually determined area by them. In that view of the matter,there cannot be dispute that respective sub-division holdersacquired ownership by mutual agreement for mutated area ofrespective sub-division. Hence, contention of Mr. Gholap that 11 sa615.2021.odttitle of respective land holder was passed only for areapossessed by respective land holders at the time of partitioncannot be countenanced. From pleading and evidence onrecord, it is evident that ownership and area of respective sub-division was mutually agreed and fixation of boundaries wasleft for survey measurement.16.What was remained was fixation of boundaries ofsub-divisions and for that purpose, re-measurement was to becarried. First such attempt was made through themeasurement carried by PW-2 Mr. Saraf under the directionsof Tahsildar. Second measurement was carried by Mr. SonarPW-3 on joint application of sub-division holders in pursuanceto the consent-deed dated 3.5.2011. Consent-deed has beenrecorded before the Executive Magistrate, Yawal. All Sub-division holders have specifically agreed to fix boundaries asper area shown in the 7/12 extract. Defendant is signatory tosaid agreement. In deference to such agreement, measurementis carried by PW-3 Mr. Sonar, which depicts 12R excess area inpossession of the defendant.17.Mr. Gholap attacked measurement map Exhibit 62so also evidence of PW 3 Mr. Sonar contending that defendant 12 sa615.2021.odtwas not present at the time of measurement. The fact remainsthat notice of measurement was issued to the defendant. Hiswife presented herself at the time of measurement givingreason that defendant was unwell. The fact remains that Mr.Sonar carried measurement as per joint application of theparties. He measured entire gat no.459 and fixed boundariesof respective sub-divisions as per area of each sub-division.The area in possession of the respective sub-division holders aswell as the area as per 7/12 extract has been separatelyindicated in the map. It clearly depicts that defendant haspossessed 12R area which is from sub-division i.e. gatno.459/3 owned by the plaintiff.18.Although, certain admissions in the crossexamination of PW 3 are relied, those are of no consequence soas to discard report/measurement map or evidence of PW-3.Both Courts accepted measurement report to be proper. Noserious infirmity is brought on record to disturb opinion ofCourts. Corollary of the aforesaid discussion is that, defendantis in unauthorized possession of 12R land from ownership ofthe plaintiff. In absence of plea of adverse possession,defendant is not entitle to claim any right over suit land even 13 sa615.2021.odtassuming his continuous possession. The fact remains thatplaintiff came to know about excess area possessed by thedefendant only upon measurement and fixation of boundariesdone in the year 2010, then, immediately asserted his rightagainst the defendant.19.In the result, substantial questions of law frameddeserves to be answered in the negative. Appeal sans merit,hence, dismissed. No costs. Pending civil application, if any,also stands disposed off.20.At this stage, Mr. Navandar h/f Mr. Gholap,learned advocate for the appellant submits that there wasinterim protection during pendency of the second appeal. Theappellant may take his chance before the Supreme Court. He,therefore, seeks continuation of interim protection for a furtherperiod of eight (8) weeks from today.21.Considering the controversy involved, interimprotection to continue for a period of eight (8) weeks fromtoday. ( S. G. CHAPALGAONKAR ) JUDGE...aaa- (f)