Dismissed

Smt. Jayanti Pandurang Mali v. Smt. Indira Raje D.Mukane

Bombay HC28 Jan 2013SA/17/2012

Case brief

AI extract

What is this about?

This second appeal against the dismissal of a plaint in a suit for adverse possession and injunction was dismissed. The High Court held that concurrent findings that the respondents are tribals protected under a specific Act, based on their led evidence and appellants' failure to lead counter-evidence, did not warrant interference.

What did the court decide?

Second Appeal dismissed; Civil Application No. 153 of 2012 dismissed; No order as to costs.

Smt. Jayanti Pandurang Mali Vs Smt. Indira Raje D.Mukane — Property and Title | Bombay HC (2013)

¶1

17-12-sa=.doc

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

SECOND APPEAL NO. 17 OF 2012 WITH CIVIL APPLICATION NO. 153 OF 2012 IN SECOND APPEAL NO. 17 OF 2012

¶4

Smt. Jayanti Pandurang Mali & Ors.

¶5

.. Appellants

¶6

V/s.

¶7

Smt. Indira Raje D. Mukane & Ors. .. Respondents

¶8

Mr. D.B. Bagve for the appellants Mr. Sanskar Marathe for respondent nos. 1 to 3.

¶9

CORAM : R.Y.GANOO, J. DATED : 28^th JANUARY, 2013

¶10

P.C. :

¶11

Heard learned advocates on both sides.

¶12

The present appellants filed Regular Civil Suit No.13 of 2004

¶13

against the present respondents for a declaration that the title of the appellants over the suit land has been protected by adverse possession. Relief of perpetual injunction was also sought.

1 of 5

U.S.Jagtap

17-12-sa=.doc

In the present suit, the respondents filed an application

¶18

contending that the suit is not maintainable and that the said plaint should be rejected. Preliminary issue as regards jurisdiction was framed. The respondents laid evidence before the Court to say that they are tribals and that they are adequately protected in accordance with the provisions of the Maharashtra Restoration Act of Lands to Scheduled Tribe Act, 1974 (hereinafter referred to as the said Act).

¶19

It is noticed that evidence was laid and the respondents were successful in staking up their claim before the Court and that the plaint was rejected by order dated 20^th April, 2010. Civil Appeal No.25 of 2010 filed by the present appellants in the District Court at Palghar was dismissed on 5^th September, 2011. Hence, this Second Appeal.

¶20

Learned advocate Mr. Bagve appearing on behalf of the appellants contended that the provisions of Order 7 Rule 11 (d) of the Civil Procedure Code could not be used. According to him by reading the plaint only the Court should have decided whether the

2 of 5

U.S.Jagtap

17-12-sa=.doc

suit is barred on the points stated by respondents and then decide whether to reject the plaint as per Order 7 Rule 11 (d) of the C.P.C. Such a contention cannot be accepted.

¶25

In the present case, the respondents had taken a positive stand that they are tribals and they are protected by the said Act. In order to make out such a case, it was necessary for them to lead evidence that they are tribals and the evidence was led by the respondents. The appellants have not led any evidence. This would mean that though the appellants got a chance to lead evidence on the points, which were to be considered by the Court, they did not lead evidence. The judgment of the trial Court indicates that the appellants had filed evidence closure pursis.

¶26

It is noticed that the case of the respondents that they are protected by the said Act has been accepted on the basis of the evidence placed before it. There is a concurrent finding about it. If this is so, the said concurrent finding on the basis of the evidence before the Court need not be interfered with and that the ultimate

3 of 5

U.S.Jagtap

17-12-sa=.doc

decision arrived at by both the Courts that the plaint deserves rejection need not be interfered with.

¶31

No substantial question of law is involved. Second Appeal is dismissed with no order as to costs.

¶32

After this order is passed, learned advocate Mr. Bagve appearing on behalf of the appellants submitted that the appellants have challenged caste certificate issued in favour of the respondents as also caste validity certificate in favour of the respondents by filing writ petition in this Court being Writ Petition No.3868 of 2012 and the said writ petition is pending admission.

¶33

It must be mentioned that this Court has perused the record, which appeared before it in the second appeal and the points have been decided on the basis of the said record. The Court has not expressed any views on merits of the writ petition.

4 of 5

U.S.Jagtap

17-12-sa=.doc

The Civil Application No.153 of 2012 is dismissed.

¶38

[R.Y.GANOO, J.]

¶39

5 of 5

¶40

U.S.Jagtap

Smt. Jayanti Pandurang Mali v. Smt. Indira Raje D.Mukane

Case brief

What is this about?

What did the court decide?

Smt. Jayanti Pandurang Mali v. Smt. Indira Raje D.Mukane

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Shri Balkrishna Ramchandra Lingam and Others Vs Shri Balwant Dada Yadav @ Parit and Others

1SHAIKH Gattehmohammad Amir,Deced.Hisl.R'S 1A. Shaikh Nisar Fattehmohammad Vs 1. Shri Shaikh Gayas Usman and Ors.

Shri Kailas Baban Kodre Vs Shri Hirabhau Gopala Kodre Deceased Thr Lr Sarubai Hirabhau Kodre and Ors.

Krishnadeo Shripati Patil Vs Vitthal Shripati Patil

Kangji Keru Lahane Vs Balu Gopinath Layre

Gopal Ganapati Mali Vs Smt. Ramabai Mahadev Todkar