Dismissed

Shankarrao S/O Udebhanji Lawale v. Rameshchandra Gangadas Budhwani

Bombay HC28 Aug 2013SA/469/2011

Case brief

AI extract

What is this about?

In a second appeal concerning a civil suit for injunctions regarding disputed property, the court dismissed the appeal. Holding that the material discrepancy in property descriptions between sale deeds prevented finding of estoppel, the judge concluded that no substantial question of law arose as the appeal involved mere re-appreciation of evidence.

What did the court decide?

The appeal stands dismissed and no order as to costs.

Shankarrao S/O Udebhanji Lawale Vs Rameshchandra Gangadas… — Property and Title | Bombay HC (2013)

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288sa469.11.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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Second Appeal No. 469 of 2011

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Shankarrao s/o Udebhanji Lawale

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...Versus...

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Rameshchandra s/o Gangadas Budhwani

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Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directio ns and Registrar's orders.

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Mr. V.M. Deshpande with Mr. P.R. Agrawal Advocate for Appellant. Mr. K.R. Lule Advocate for the Respondent.

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CORAM : S.B. Shukre, J.

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DATE : 28.08.2013.

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The appellant had filed R.C.S. No. 12 of 2006 against the respondent for grant of permanent and temporary injunctions. It is the case of the appellant that he had purchased the suit property, which is an open land running East-West to the house of the appellant, from one Indrajit Boke by way of sale-deed dated 30.5.1992 (Ex.25). The appellant submits that Indrajit Boke had purchased the suit property from one Shivaji Bhandwalkar by way of sale-deed dated 14.12.1979 (Ex.55). According to him, both the sale-deeds show that the suit property was indeed passed over from the original owner Shivaji Bhandwalkar to Indrajit Boke and from

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Indrajit Boke to the appellant. Since there was a dispute over the use of the suit property, in order to restrain the respondent from demolishing the North-South wall in the suit property, a suit for grant of permanent and mandatory injunctions was filed. The trial Court dismissed the suit, which judgment and decree were appealed against and in the appeal bearing R.C.A. No. 103/08 the first appellate court dismissed the appeal with costs.

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It is submitted by the learned counsel for the appellant that the appreciation of evidence on record carried out by both the courts below is absolutely perverse and both the courts have not taken into consideration relevant evidence brought on record. There were certain aspects of the matter, particularly the withdrawal of suit filed by one Namdeorao Khonde- the predecessor-in-title of the respondent, against Indrajit Boke- the predecessor-in-title of the appellant, claiming same reliefs in respect of the same property, which have not been considered at all by the courts below and no findings have been recorded as to whether this action on the part of predecessor-in-title of the respondent amounted to estoppel binding upon the present respondent. In support, he refers to the law laid down by the apex court in the case of Jagdish Singh v. Natthu Singh – AIR 1992 SC 1604 wherein the Supreme Court has observed that when finding by the Court of facts is vitiated by nonconsideration of relevant evidence or by an essentially erroneous approach to the matter, a substantial question of law would arise.

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Learned counsel for respondent submits that there has been material difference in the description of the suit properties as noted in the sale-deeds, Exs. 55 and 25, and this difference in the

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description of the suit property has been correctly appreciated by the courts below. According to him, case of the appellant is purely based upon mere re-appreciation of evidence which has been correctly assessed by the courts below, which course is not permissible in second appeal. He places reliance on the judgment of supreme court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & ors. - AIR

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1999 SC 2213 wherein the apex court has held that mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of documents could not be said to be raising substantial question of law.

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It is seen from the judgments of the courts below that the evidence adduced by both the sides has been properly appreciated and there have been concurrent findings recorded on the facts of the case. It is further seen that there has been a material difference in the description of the suit property. In Ex.55, the suit property has been stated to be 74 ft. and 6 inches long whereas in Ex.25 it has been described to be of the length of 97 ft. six inches. No evidence has been led for clarifying this material difference in the description of the suit property. If this is so, it cannot be said that appreciation of evidence by the courts below was perverse or based upon nonconsideration of some relevant material brought on record by either of the parties. Therefore, this is not a case which would give rise to any substantial question of law affecting directly substantial rights of the parties. Since I do not see any non-consideration of relevant material or for that matter even wrong approach having been adopted by either of the courts below, in my opinion, the ratio laid down in the case of Jagdish (supra) referred to me by the appellant,

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would have no application to the instant case. On the other hand, the case of Kondiba (supra) referred to me by the learned counsel for respondent, would have application because what has been essentially and fundamentally sought by appellant here is only mere appreciation of evidence, particularly the documentary evidence and the meaning of various clauses appearing therein, which do not raise any substantial question of law involved in the case.

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As regards the submission about point of estoppel arising from withdrawal of suit filed by the predecessor-in-title of the respondent against the predecessor-in-title of the appellant, I am of the opinion that since there has been material difference in the description of the suit property appearing in the two sale-deeds (Exs. 55 and 25), and also rejection by trial Court of temporary injunction application filed by the predecessor-in-title of the respondent, it can be seen that the predecessor-in-title of the respondent may not have had any explanation to give as regards the material difference in the description of the suit property leading to rejection of his temporary injunction application. Once it is found that there is no evidence forthcoming to clarify the material difference in the description of the suit property thereby creating doubt about the claim over the suit property, I do not think any issue of estoppel arising from the withdrawal of the suit by the predecessor-in-title of the respondent would arise.

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For the reasons stated above, this appeal raises no substantial question of law and, therefore, deserves to be dismissed. The appeal stands dismissed. No order as to costs.

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JUDGE

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/TA/

Shankarrao S/O Udebhanji Lawale v. Rameshchandra Gangadas Budhwani

Case brief

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Shankarrao S/O Udebhanji Lawale v. Rameshchandra Gangadas Budhwani

Case brief

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