In an appeal under Section 100 of the CPC, the High Court of Judicature at Bombay dismissed the plaintiff's appeal challenging a decree dismissing the suit for declaration of title and possession. The Court held the plaintiff failed to establish ownership of the suit land, as admitted in his cross-examination.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Tapadia RR
1 / 10 SA/315/1989
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 315 OF 1989 WITH
CIVIL APPLICATION NO. 1242 OF 2003 IN SA/315/1989
Sadashiv Tukaram Pawar ..Appellant Vs Sou.Taibai w/o Pandurang .. Respondents Yadav and Ors
Mr. Rajesh S. Patil, Advocate for the Appellant. Mr.C.G.Gavnekar with Ms A.R.X Baxi, Advocate for Respondent nos 1 to 3.
| CORAM : R.G.KETKAR,J. |
|---|
| RESERVED ON : 20.6.2013 |
| PRONOUNCED ON : 24.9.2013 |
JUDGMENT:
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learned District Judge dismissed the suit instituted by the appellant. The parties shall, hereafter, be referred to as per their status in the trial Court. The relevant and material facts that are necessary for disposal of the present appeal, briefly stated, are as follows.
East: Remaining portion of Gat no.974 of defendant no.2, North:Agrani River,
West: Land bearing Gat No.973 purchased by the plaintiff. South: Gat No.972, that represents 11 Annas share with share in two well situate therein, as more particularly set out in paragraph 1 of the Plaint (for short, 'suit land').
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Pandurang had conveyed in all land admeasuring 4 Acres 10 Gunthas to Dhondi Mehtre (2 Acres 20 Guntha plus 1 Acre 30 Gunthas). On 22.3.1966 Dhondi Bala Mhetre, in turn, sold these lands to defendant no.2 Tukaram Raghnath Patil. The plaintiff further alleges that in the year 1961 Pandurang sold 2 Acres 20 Gunthas to one Topa Dashrath. On 24.7.1964, Pandurang further sold 1 Acre 20 Guntha to said Topa Dashrath. On 15.6.1964 Pandurang sold 2 Acres and 9 Guntha to one Narayan Nikam. On 18.6.1966, said Topa sold the property purchased by him from Pandurang to defendant no.2. On 12.6.1968 Narayan Nikam sold the property purchased by him from Pandurang to defendant no.2-Tukaram Patil. On 27.12.1978, (Exh.116), the plaintiff purchased 1 Hector 73 Are, equivalent to 4 Acres 12 Guntha, from defendant no.2. On 11.5.1979, the plaintiff purchased 6 Acres 13 Guntha from defendant no.2. Thus, by that date the plaintiff had purchased 10 Acres 25 Guntha. Lastly, on 9.2.1988 Pandurang himself sold the land admeasuring 6 Acres 34 Gunthas to the plaintiff. All these pieces of lands are from land bearing Survey Nos. 170, 227 and 228, in all admeasuring 17 Acres 19 Guntha.
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whereof are as under.
| Survey | Area | Hissa | Area | Kabjedar |
|---|---|---|---|---|
| No. | No. | A/G | ||
| 228 | 12.20 | (1) | 2.5 | Dhondi Bala Mhetre |
| (2) | 5.38 | Pandu Balu Yadav | ||
| (3) | 3.7 | Bhau Tatya Shirke | ||
| (4) | 21 G | Shankar Ramu Shirke | ||
| (5) | 34 G | Gvonda @ Ganu Maruti Yadav |
||
| (6) | 5 G | Shivlinga Mahalinga | ||
| Kukbhar 8 Guntha |
||||
| Laxman B. Kumbhar 8 Guntha |
Thus, Survey no.228, Hissa No.(2), admeasures 5 Acres 38 Guntha and in the column of Kabjedar, name of Pandurang was recorded. Survey no.228/2 was further divided in two parts, Survey no.228/2A admeasuring 4 Acres 12 Guntha and Survey no.228/2B admeasuring 1 Acre 26 Guntha (total 5 Acres 38 Guntha). In the consolidation proceedings, survey no.228/2A and survey no.228/2B was given Gat no.974 admeasuring 5 Acres 38 Ares (2 Hector 41 Ares). Out of this, the plaintiff had purchased western portion admeasuring 1 Hector 71 Are and since then he is in possession of the suit land. The plaintiff, therefore, instituted suit for declaration that it be declared that he is owner of the suit land. As a consequential relief, it was prayed that the defendants, their
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agents and servants or anyone claiming through them, may be restrained from disturbing and/or obstructing his peaceful possession. In the alternate he claimed for possession of the suit land. In the alternate, the plaintiff also claimed decree of partition and separate possession to the extent of his share of 11 Anna 6 Paise in the suit land.
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learned trial Judge declared the plaintiff's ownership over the suit land and directed defendant nos 3 to 5 to hand over possession to him and after delivery of possession restrained them from interfering with the plaintiff's possession.
“Coram : S.M.Daud, J.
“Mr Abhayankar for the appellant and Mr Shah for respondents 1 to 3 are heard. Appeal admitted. The substantial question of law being ground nos 6,7,17,21 and 22 of the Appeal Memo. Mr Shah waives service.”
Ground nos 6,7, 17,21 and 22 read as under :
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the Bombay prevention and Fragmentation.
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turn sold the property to Tukaram Patil and from Tukaram Patil plaintiff had purchased these lands under sale deed dated 27.12.1978 at Exhibit 116. By another sale deed dated 11.5.1979 the plaintiff had purchased 6 Acres 13 Gunthas from defendant no.1 Tukaram Patil. Thus, the plaintiff had purchased in all 10 Acres 25 Gunthas and subsequently on 9.12.1988 defendant no.2 Pandurang sold 6 Acres 34 Guntha to the plaintiff. Thus, the plaintiff had purchased entire land from Pandurang. This is substantiated from the sale deeds.
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Survey no. 228/2A and 228/2B. Accordingly, entries were made in Record of Rights. There are six pot Hissa in Survey no.226. Defendant no.2 sold Survey no.228/1 to Dhondi Mehtre on 4.6.1947. On 19.3.1951, Survey no.228/1 was sold by Pandurang to Dhondi Mhetre. He further admitted that defendant no.2 did not sell any other piece of land to anybody else except the above pieces. In other words, Dhondi Mhetre did not sell Survey no.228/2 to anyone. As noted earlier, Survey no.228/2 was divided in two parts, namely Survey no.228/2A admeasuring 4 Acres 12 Guntha and Survey no.228/2B admeasuring 1 Acre 26 Guntha and in consolidation scheme survey no.228/2A and 228/2B was given Gat no.974 admeasuring 5 acre 38 Guntha. In short, the plaintiff admitted that what was sold by Pandurang to Dhondi Mhetre in the year 1947 and in the year 1951, was land from survey no.228/1 and that Pandruang did not sell any other piece of land to anybody else. In view of the admission of the plaintiff in the cross-examination, it cannot be said that the plaintiff has established his ownership in respect of Gat no 974 which was formed in consolidation scheme from survey no 228/2A and 228/2B. In my opinion, the learned District Judge has rightly considered this aspect and held that the plaintiff has not established his ownership over the suit land
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and consequently, the suit is liable to fail. In the light of these discussions, I do not find that the learned District Judge has committed any error in allowing the appeal preferred by defendant nos 3 to 5. It is not shown that the findings recorded by the learned District Judge are perverse being based on no evidence or that on the basis of evidence on record no reasonable person could have come to that conclusion. Merely because another view is possible on the basis of the evidence on record, this Court would not be justified in exercising jurisdiction under Section 100 of C.P.C. In view thereof, the Appeal fails and the same is dismissed.
(R.G.KETKAR, J.)
3 issues framed by the court
Whether the appellant has established ownership over the suit land admitted in crossexamination.
Whether the findings of the District Judge regarding failure to prove title are perverse or based on no evidence.
Whether this Court should exercise its power to interfere under Section 100 of the CPC.
Sadashiv Tukaram Pawar
Sou. Taibai w/o Pandurang Yadav
Defendant Nos. 3 to 5
R.G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
