Dismissed

Shri Jagannath Balkirishna Desai v. Raghunath Babaji Desai

Bombay HC10 Jan 2007SA/317/1985

Case brief

AI extract

What is this about?

In this appeal, the High Court of Bombay dismissed the appellant's second appeal. The appellant contested the lower appellate court's dismissal of his suit for permanent injunction. The High Court held that the appellant failed to prove ownership by adverse possession and thus could not claim title to restrain the true owners.

What did the court decide?

The appeal was dismissed with costs; the order of the Assistant Judge, Ratnagiri was upheld.

Shri Jagannath Balkirishna Desai Vs Raghunath Babaji Desai — Property and Title | Bombay HC (2007)

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 CIVIL APPELLATE JURISDICTION

¶4

 SECOND APPEAL NO. 317 OF 1985

¶5

 Jagannath Balkrishna Desai

¶6

 heir and legal represetnative

¶7

 of Balkrishna Vishnu Desai ... Appellant

¶8

 ( Heir of Orig. Plff)
 V/s

¶9

 Raghunath Babaji Desai

¶10

 since deceased by his heirs and

¶11

 legal representatives

¶12

 1. Smt.Sunandabai Raghunasth Desai

¶13

 2. Anant R. Desai

¶14

 3. Smt.Premlata Laxman Salunkhe

¶15

 4. Smt.Deepali Dattaram More

¶16

 5. Arun Raghunath Desai

¶17

 6. Anil Raghunath Desai

¶18

 7. Smt.Jayashree Hemant Chavan

¶19

 8. Smt.Rajani Balwant Satam ... Respondents
 (Heirs of Orig. defts)

¶20

 Mr.Prabhu i/b Mr.N.V.Walawalkar for Appellant
 Mr.G.N.Salunkhe for Respondents

¶21

 CORAM:S.R.SATHE,J.

¶22

¶23

 DATED:10th Jan. 2007

¶24

ORAL JUDGMENT :-

¶25

 1. The Appellant original plaintiff in Regular Civil
 Suit No.1 of 1975 has preferred this appeal against the
 judgment and order passed by the Court of the Assistant
 Judge, Ratnagiri whereby the order passed by the Court
 of the Civil Judge,J.D., Rajapur, decreeing plaintiff’s
 suit for permanent injunction in his favour was set
 aside and the plaintiff’s suit was dismissed with costs
 throughout.

¶26

 2. For the sake of convenience hereafter the parties
 shall be referred to as the plaintiff and defendant.

¶27

 . Brief facts giving rise to this appeal are as under

¶28

 3. Balkrishna Vishnu Desai, original plaintiff filed
 suit for permanent injunction stating therein that suit
 property bearing Survey No.21 Hissa no.8 admeasuring 4
 gunthas situated at village Haradkhale, Taluka Lanja,
 District Ratnagiri was initially recorded inBOT KHOT
 in the name of Kanu Bapu Lotankar in Khata NO.11. From
 the year 1920 it was in possession of plaintiff’s
 father. He constructed Kembli house and was residing
 there. Subsequently the plaintiff constructed a cattle
 shed and also started paying rent of the said property.

¶29

¶30

 According to the plaintiff his father had planted mango
 trees, jack fruits and other trees in the suit land and
 he used to take the yield of those trees. Plaintiff’s
 brother was residing in the said house upto year 1962.
 Thus according to the plaintiff he became the owner of
 the said property by adverse possession.

¶31

 4. After abolition of Khoti, record of rights were
 introduced and plaintiff’s name was entered in 7 x 12
 extract in column of Kabjedar. It is the plaintiff’s
 case that the defendant had no concern with the suit
 land but he got his name entered on the record of
 rights for 9 Ps share and on that basis erected a hut
 on the said land. Not only that but according to the
 plaintiff in the year 1974 the defendant extended the
 said hut in plaintiff’s land and also removed the
 stones of the plaintiff’s wall without giving any heed
 to plaintiff’s objections in that behalf. The
 defendant also unauthorizedly cut two mango trees and
 thus caused loss to the plaintiff. Hence plaintiff
 filed suit for permanent injunction and prayed that
 defendant be restrained from doing any act outside his
 9 Ps share and causing obstruction to the plaintiff’s
 property. Plaintiff also claimed damages of Rs.50/-
 from the defendant.

¶32

 5. The defendant filed his written statement at Exh.19
 and contended that the suit land is from Khata No.11 of

¶33

¶34

 Babu Kanu Lotankar. It was Survey No.21 Phalni No.7
 and in the partition of village amongst co-sharers of
 Khoti, it was allotted to the share of defendant’s
 father Babaji Janardhan Desai in His Dhada No.93. Not
 only that on 6-11-1941 defendant’s father was put in
 possession of the said land. It is the contention of
 the defendant that since then he is in possession of
 the said land. Plaintiff’s father Janardhan was real
 brother of the defendant’s father Babaji. The suit
 land was in possession of the father of the defendant
 even before partition. Plaintiff’s father erected a
 cattle shed with permission of defendant’s father and
 later on converted it in house and plaintiff was
 occupying the same with permission of the defendant.
 However, in the year 1957 plaintiff constructed another
 house and left the house situated in the suit land.
 The defendant contended that since then he is having
 his cattle shed in that portion. When record of rights
 were introduced taking advantage of the act that the
 defendant was not in the village plaintiff got his name
 entered to the suit land. Defendants made complaint
 about the same but it was of no use. The defendant
 further contended that trees standing in the suit land
 are planted by his father and not by plaintiff’s father
 or plaintiff. He, therefore, submitted that the
 plaintiff is not entitled for injunction as prayed.

¶35

 6. On these pleadings the learned trial Judge framed

¶36

¶37

 issues at Exh.22. In order to prove the suit claim

¶38

 plaintiff examined himself and produced certain
 documents. The defendant also examined himself and
 produced several documents. After considering the
 evidence of both the parties the learned trial Judge
 came to the conclusion that the plaintiff has proved
 that he has become the owner of the suit property by
 adverse possession and was in possession of the same on
 the date of the suit. He also held that the defendant
 obstructed the plaintiff’s possession and therefore
 decree the suit in plaintiff’s favour.

¶39

 7. Being aggrieved by the said judgment the original
 defendant filed Civil Appeal No.123 of 1978 in the
 Court of the Assistant Sessions Judge, Ratnagiri.
 After hearing both the learned advocates the learned
 Assistant Sessions Judge, Ratnagiri came to the
 conclusion that plaintiff has not at all proved that he
 is the owner of the suit property by adverse
 possession.On the contrary the defendant is the owner
 of the suit property. He therefore, allowed the appeal
 and dismissed the plaintiff’s suit.

¶40

 8. Being aggrieved by the said order the original
 plaintiff filed the present second appeal. From the
 perusal of the record it appears that while admitting
 the appeal on 5-9-1985 this Court (Coram:
 R.A.Jahagirdar,J) passed the following order:

¶41

¶42

 "Admit on ground at Sr.Nos.3 and 4".

¶43

 The said grounds are as under :-

¶44

 3. The lower Appellate Court ignored material
 evidence on record which clearly showed that
 the plaintiff was having continuous and

¶45

 hostile possession of the suit land.

¶46

 4. The lower Appellate Court failed to
 appreciate that the Defendant knew the
 possession of the plaintiff to be adverse to
 his title when the entry had been made in the
 Record of Rights showing the plaintiff to be
 the owner of the said land, and that the
 defendant had made unsuccessful attempts to
 get the entry of the plaintiff’s name removed.

¶47

 9. In this appeal before me the learned Advocate for
 the Appellant has urged only 2 points. Firstly, he
 submitted that the learned first appellate Court has
 not properly appreciated the evidence on record and has
 wrongly held that the plaintiff has failed to prove
 that he has become owner of the suit property by
 adverse possession. Secondly, he canvassed before me
 that the revenue record goes to show that the plaintiff
 is in fact in possession and even if it is held that

¶48

¶49

 the defendant is co-sharer in the said property still
 there is no evidence to show that the plaintiff was
 ousted from the property and thereby the defendant
 acquired the title. He, therefore, submitted that the
 appeal be allowed and decree for permanent injunction
 be passed against the defendant.

¶50

 10. As against this the learned Advocate for the
 Respondent supported the judgment and order passed by
 the learned first appellate Court. She also submitted
 that plaintiff has in fact failed to prove that he is
 having valid title to the suit property and as such no
 discretionary relief can be granted in plaintiff’s
 favour.

¶51

 11. From the perusal of the plaint, we find that the
 plaintiff has nowhere specifically stated that his
 father was the owner of the suit property or that he is
 the owner of the suit property. On the contrary he has
 alleged that the land in question was initially
 standing in the name of Kanu Bapu Lotankar but
 plaintiff’s father constructed house in the same and
 started vahiwat of the same. In fact the plaintiff has
 stated in the plaint that he has also become the owner
 of the suit property by adverse possession. It is
 needless to say that the plaintiff cannot lay claim at
 one and the same time that he is the owner of the suit
 property since his father was owner and at the same

¶52

¶53

 time contend that he has become owner by adverse
 possession. It is needless to say that the plaintiff
 must stand or fall on his own pleadings. The pleadings
 in the plaint clearly indicate that the case of the
 plaintiff is that he has become the owner by adverse
 possession. It is well settled that to constitute
 adverse possession the possession must be adequate in
 continuity, in publicity and in extent for statutory
 period. In the instant case the plaintiff has not at
 all specifically pleaded as to when he became owner by
 adverse possession. The plaintiff has in fact stated
 that the land originally belonged to Babu Lotankar and
 thereafter his father constructed a house and then he
 came in possession of the suit land. He has also
 stated that his father constructed a house on the old
 plinth which was of Lotankar. It is pertinent to note
 that at the same time he has stated that at present he
 is not residing in that house thereby indicating that
 he is not in actual physical possession of the suit
 land. He has also stated that he used to pay rent of
 the said land to the defendant. When he says so, he
 indirectly admits that he is not the owner of the suit
 land. Not only that but it also shows that he is
 acknowledging the ownership of other person and without
 claiming any proprietary right or ownership right, on
 the contrary pays rent to the other persons, here to
 the defendant. When such is the position, how it can
 be said that the plaintiff has become the owner of the

¶54

¶55

 suit property by virtue of adverse possession. The
 record in fact goes to show that on the date of the
 suit the plaintiff was in fact in actual possession of
 the land in question. He himself has even admitted
 that the defendant got his name entered in the record
 of rights to the extent of 9 Ps share and erected hut
 on that basis. But thereafter he made an encroachment
 and extended the said hut and occupied the suit land.
 So, this also indicates that the plaintiff was not in
 actual physical possession of the suit property on the
 date of the suit. If it is the case of the plaintiff
 that the defendant extended his hut and occupied other
 portion in the suit land then his proper remedy was to
 file a suit for possession and not a suit simplicitor
 for permanent injunction.

¶56

 12. In order to substantiate his case the plaintiff
 has produced certain l;and revenue receipts. However,
 if we see the extract of form no.8 by Khata No.206 then
 we find that number of the suit land is not mentioned
 in the said Khata NO.206. So, the revenue receipts
 produced by the plaintiff are of no help to him to
 prove his case.

¶57

 13. The defendant’s evidence on the contrary goes to
 show that land in question was allotted in partition
 between Khots to his father. His father had in fact
 purchased Khot Hissa when his father made a complaint

¶58

¶59

 and asked for suit land as per his share it was given
 in his possession. So, under such circumstances we
 find that the defendant is in fact having title to the
 suit property. Merely because plaintiff has adduced
 some evidence to show that he has paid the assessment,
 we cannot jump to the conclusion that it was in his
 personal capacity. He might have paid the same for the
 defendant. If we peruse Vatap Takta Exh.61 produced by

¶60

 the defendant then also we find that the land in
 question was allotted to the share of the defendant’s
 father. Thus, from the defendant’s evidence it is
 clear that the land in question was not only given to
 the share of the defendant’s father but the same was
 given in possession of the defendant’s father. So,
 record in fact goes to show that the plaintiff is not
 the owner of the suit property.

¶61

 14. Much is made about the fact that the defendant
 made efforts to get the plaintiff’s name deleted but he
 was not successful in that process and plaintiff’s name
 continued. However, it is pertinent to note that
 plaintiffs have produced the extract of mutation Entry
 NO.1026 at Exh.55 wherein it is clearly mentioned that
 name of the plaintiff in respect of the suit land be
 deleted from the record of rights. So, if thereafter
 the name of the plaintiff has continued, it is
 obviously incorrect and that would certainly not give
 rise to any presumption in favour of the plaintiff.

¶62

¶63

 The learned Advocate for the plaintiff has placed
 reliance on a case Darshan Singh and Ors V/s Gujjar
Singh (Dead) By Lrs and Ors. (2002) 2 SCC 62to show
 that merely because defendant is co-sharer and is in
 possession of some property that will not give any
 title to him unless there is evidence to show that
 defendant has ousted the plaintiff. It has to be noted
 that in the instant case the defendant is not claiming
 any title by virtue of adverse possession. So, the
 question of defendant ousting the plaintiff in fact
 does not arise and hence the said ruling is of no use
 to the plaintiff.

¶64

 15. From the above discussion it is very clear that
 the learned first appellate Court rightly appreciated
 the evidence on record and correctly held that the
 plaintiff has failed to prove that he has become owner
 of the suit property by adverse possession and has also
 failed to prove possession referable to a valid title.
 When such is the position, he was justified in
 rejecting the claim for injunction because even the
 Apex court in Premji Ratansey Shah and Ors V/s Union of
India and Ors. reported in 1995(2) Bom. C.R. 374 SC

¶65

 in similar circumstances has held that discretionary
 relief of injunctioncannot be granted against true
 owners.

¶66

 16. In view of the above, the order passed by the

¶67

¶68

 learned Assistant Judge, Ratnagiri is legal and correct
 and there is no necessity to interfere with the same.
 Hence the appeal is dismissed with costs.

¶69

 (S.R.SATHE,J.)

Shri Jagannath Balkirishna Desai v. Raghunath Babaji Desai

Case brief

What is this about?

What did the court decide?

Shri Jagannath Balkirishna Desai v. Raghunath Babaji Desai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Sharada Shivaji Rajwade and Ors. Vs Ankush Vitthal Rajwade and Anr.

Keda Ratan Patil and Anr. Vs Kashiram Shivram Shewale (Decd.)by Lrs. and Ors.

Shri Mahadeo Ganpat Bansode Vs Shri Bhau Krishna Bansode (Decd) by Heirs and Ors.

Shri Jagannath Balkirishna Desai Vs Raghunath Babaji Desai

Madhav Dsnarayan Agaskar and Ors. Vs Smt.Savitribai Narayanji Bhat and Ors.

Madhav Narayan Agaskar Vs Vinayak Narayan Agaskar and Another