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FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Second Appeal No.476/2009
1. Smt. Vijaya Wd/o Vijay Vitthalani,
Aged about 34 Yrs., Occu. Business.
2. Chetan Vijay Vitthalani,
Aged about 13 Yrs., Occu. Eduction.
3. Manjiri Vijay Vitthalani,
Aged about 8 Yrs., Occu. Education.
Nos.2 and 3 being minors through
their mother no.1, all R/o Alapalli,
Tah. Aheri, District Gadchiroli. Appellants
(Ori. Plafts. On R.A.)
..VERSUS..
Shri Jagdish Kanjubhai Vitthalani,
Aged about 38 Yrs., Occu. Business,
R/o Near Dr. Sorte's Hospital,
Raghuvir Chowk, Near lakda Tal,
Bhanapeth, Chandrapur,
Dist. Chandrapur. Respondent
(Ori. Deft. On R.A.)
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Mr. S.P. Kshirsagar, counsel for the appellants.
Mr. R.L. Khapre, counsel for the respondent.
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Coram : F.M.REIS, J.
Dated : 24th February 2010.
Oral Judgment
1. Heard the learned counsel for the appellants and
the respondent.
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2. This is an appeal challenging the judgment and
decree passed by the District Judge, Gadchiroli in Regular Civil
Appeal No.50/2009 whereby the appeal preferred by the
appellants challenging the judgment and decree dated
30/6/2009 passed by the learned Civil Judge (Senior Division),
Gadchiroli in Special Civil Suit No.34/2003 came to be
dismissed.
3. The appellants filed the suit for specific performance
of contract and for injunction and in the alternative for refund
of earnest money that was claimed to have been paid by
them to the respondent. The plaint came to be rejected by
order dated 9/2/2005 and as such the suit of the appellants
did not survive. The counter claim filed by the respondent
was as such taken up for consideration. The counter claim
was for a mandatory injunction to remove the shed which was
raised by the appellants and also for a perpetual injunction
retraining the appellants not to disturb the lawful possession
of the respondent over the suit property.
4. It is the case of the respondent that the land
bearing Kh. No.6, situated at village Allapali, admeasuring
1152 Sq. Ft. was granted to him by the Government as per
the deed dated 16th June 1989. Since then the respondent is
in possession of the suit property. The respondent intended to
raise a construction in the said property and as such had
started putting up such construction which was raised up to
the plinth level. Thereafter, due to paucity of funds the
construction could not be completed. The respondent was
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residing at Aheri till 1996 and thereafter shifted to Chandrapur
on account of his business activities. It is further his case that
after 1996, the respondent used to visit the suit property
regularly and on 8/11/2003 when the respondent visited the
suit plot he noticed two fabricated iron structures placed on
the said plinth. On enquiry, the respondent learnt that the
said structure was kept thereon by the appellant no.1. It is
further his contention that he immediately lodged a report to
the police station against the appellant no.1 and the police
officers orally directed her to stop her illegal activities. It is
further his contention that the appellants had filed a false suit
against him as according to him there was no agreement of
any kind entered into between the respondent and the
husband of the appellant no.1 with regard to the said property.
It is further his case that the illegal structure kept by the
appellants was lying in the suit plot and considering that the
appellants’ were intending to disturb the peaceful possession
of the respondent over the suit plot, the counter claim was
filed for a the decree of mandatory injunction to remove the
said structure kept by the appellant no.1 in the suit plot as
well for permanent injunction restraining the appellants from
disturbing the peaceful possession of the respondent over the
suit plot.
5. The appellants have filed their written statement to
the said counter claim. It is the case of the appellants that the
said plinth level construction in the suit plot was erected by
the husband of the appellant no.1. It is further their
contention that the suit plot was in possession of the
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appellants and accordingly the two structures were
constructed by the appellants. Accordingly, the appellants
contended that the respondent is not entitled for any reliefs
claimed in the counter claim.
6. The learned trial Judge after framing the issues and
recording the evidence decreed the counter claim filed by the
respondent thereby directed by way of mandatory injunction
the appellants to remove the two iron structures kept by the
appellant no.1 in the suit plot bearing Kh. No.66 situated at
village Allapali and granted the permanent injunction
restraining the
appellants from disturbing
possession of the respondent over the suit plot.
the peaceful
7. While dealing with the issues framed in the suit;
the learned Judge came to the conclusion that the appellants
had illegally erected an iron shed on the suit property owned
and possessed by the respondent and on the basis of Exh.38
came to the conclusion that the suit plot belong to the
respondent. The learned Judge on the basis of the 7/12
extract which was at Exh.73 found that the suit plot stood in
the name of the respondent. The learned Judge has
appreciated the evidence adduced by the appellants and held
that though the appellants had contended that they were in
possession of the suit plot which is disputed by the
respondent, nevertheless, the appellant no.1 in her cross
examination had claimed that the thelas or iron structure were
kept over the plinth existing in the suit plot. The contention
of the appellant no.1 that her husband had put up the
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construction up to the plinth area has been to be rejected and
the learned trial Judge has held that said construction up to
the plinth area was owned and carried out by the respondent.
The learned Judge further held that the document which was
sought to be relied by the respondent which was at Exh.108
could not be treated as entries made in the revenue record as
the same were merely a report made by the Talathi in view of
an inspection which had taken place after the proceedings
were initiated in the Court. The learned Judge further held
that as there was some overwriting on the Exh.110 it should
not be relied upon and that Exh.110 discloses the name of
shop Bharat Medical Stores which fact was not even deposed
by the appellant no.1 nor were there any pleadings to that
effect in the written statement of the appellants. As such the
learned trial Judge disbelieved the case of the appellants that
they were in possession of the suit plot and as such decreed
the counter claim and inter-alia directed the appellants to
remove the iron structure from the suit property.
8. The appellants being aggrieved by the said
judgment and decree passed by the learned trial Judge
preferred an appeal before the learned Principal District Judge,
Gadchiroli in Regular Civil Appeal No.50/2009. By judgment
dated 30th October 2009 the appeal preferred by the
appellants came to be dismissed. The learned District Judge
after re-appreciating the evidence on record came to the
conclusion that no agreement for sale was produced by the
appellants nor any evidence was adduced to establish any
right to the appellants to put up the said iron structure and as
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such there was no justification to allow any unauthorized
structure to continue in the suit plot. The learned District
Judge rejected the contention of the appellants with regard to
the dispute in respect of the title over the suit plot in view of
the material produced by the respondent on record. The
learned District Judge rejected the report of the Talathi relied
upon the by appellants on the ground that the Talathi in his
deposition has categorically stated that he personally does not
know anything about the matter. The learned District Judge
on the basis of document produced at Exh.71 by the
respondent came to the conclusion that the title of the
respondent over the suit plot had been established.
learned District Judge on perusal of the document at Exh.73
The
which is 7/12 extract found that the name of the respondent
was figuring therein. On the basis of documentary evidence
on record adduced by the respondent, the learned District
Judge came to the conclusion that the respondent had title
and possession over the suit property. The learned District
Judge further held that merely keeping an iron structure in the
suit plot would not amount to dispossession of the respondent
over the suit property and as such there was no requirement
on the part of the respondent to seek for restoration of
possession. As such the learned District Judge dismissed the
appeal preferred by the appellants.
9. Being aggrieved by the said judgments passed by
the Courts below, the appellants have preferred the present
second appeal. The learned counsel appearing for the
appellants submitted that the Courts below were not justified
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to pass the impugned judgments as according to him the
appellants were in possession of the suit property and there
was no prayer for restoration of possession. The learned
counsel further submitted that by keeping the iron structure in
the suit plot it can be inferred that the possession of the suit
plot was with the appellants. The learned counsel further
submitted that thought the appellants might not be in a
possession of the total area of suit property, nevertheless, the
appellants were in possession of the portion where the said
iron structure has been installed. The learned counsel further
submitted that there was no justification for the Courts below
in rejecting the spot inspection report prepared by the Talathi
which according to the learned counsel establishes that the
possession of the suit plot was with the appellants. The
learned counsel further submitted that as there was no prayer
for restoration of possession, the question of any mandatory
injunction in favour of the respondent does not arise at all.
The learned counsel further submitted that there are perverse
findings of fact arrived at by the Courts below to the effect
that that the respondent was in possession of the suit
property.
10. On the other hand, the learned counsel appearing
for the respondent supported the judgments passed by the
Courts below. It is his submission that the spot inspection
report at Exh.100 cannot be relied upon as in any case such
document is not a record of right within the provisions of
M.L.R. Code. The record of rights are 7/12 extract which
discloses that the same stands in the name of the respondent
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and name of the appellants does not figure therein. The
learned counsel further submitted that said document at
Exh.100 has not been duly proved as the Talathi who was
examined has stated that he is not aware about the contents
therein. The learned counsel further submitted that in any
event the said document does not support the case of the
appellants and as such said document which has been
prepared during the pendency of the suit discloses material
which is not found pleaded nor deposed by the appellant no.1
in her deposition. The learned counsel further submitted that
there is no prayer seeking restoration of possession of the suit
plot as the possession continued with the respondent and as
such there was no question of any dispossession as sought to
be contended by the appellants. The learned counsel further
submitted that both the Courts below have concurrently held
that the possession of the suit plot was with the respondent
and this Court in a second appeal cannot re-appreciate the
evidence to come to any contrary findings. The learned
counsel further submitted that merely keeping an iron
structure in the suit property can by no stretch of imagination
be considered to be dispossession as it is merely a sporadic
act of trespass which cannot be considered to be
dispossession of the suit plot. The learned counsel further
submitted that no substantial question of law arises in the
present appeal and as such the appeal deserves to be
rejected.
11. After hearing the learned counsel for the parties and
on perusal of the record, I find that there can be no dispute
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that suit plot belongs the respondent. The title of the suit plot
has been established on the basis of the documentary
evidence at Exh.71 and 72 which has been relied upon by the
Courts below to come to the conclusion that the title as well as
the possession of the suit plot is of the respondent. It is not
disputed that the 7/12 extracts at Exh.73 which are the
record of right in respect of suit plot stands in the name of the
respondent. The names of the appellants admittedly do not
figure in such records. It is the well settled that revenue
records create a presumption of possession in favour of the
person in whose name they stand. Considering that the
name of the respondent is recorded there, the possession of
the respondent has to be accepted. Apart from that the Courts
below on minute examination of the documents produced by
the appellants came to the conclusion that the appellants
failed to establish that the appellants were in possession of
the suit plot. On the basis of evidence on record and on
appreciating the oral evidence adduced by the parties, I find
the Courts below have rightly come to the conclusion that the
possession of the suit plot was with the respondent.
12. In the judgment reported in 2001 (8) S.C.C
584( Mohan Lal V/s. Nihal Singh) the Apex Court has held that
the question of possession of the suit property is essentially a
question of fact. There is hardly any scope for the High Court
to interfere with the findings of possession concurrently
recorded by the Courts below within the limited parameters of
the second appeal under section 100 of the Civil Procedure
Code. In the present case the Courts below on the basis of
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oral as well as documentary evidence on record specially the
7/12 extract came to the conclusion that the possession of
the suit plot was with the respondent. This concurrent
findings of fact of the Courts below cannot be interfered with
by this court in a second appeal.
13. In 1999 (7) S.C.C. 303 Ram Kumar Agrawal and
another V/s. Thawar Das (dead) through L.Rs.) the Apex court
has held that the jurisdiction of the High Court to interfere with
the lower Courts judgment is confined to only a substantial
question of law otherwise interference with the findings is not
warranted. The High Court cannot
the evidence in exercising jurisdiction
re-appreciate
under provisions of
Section 100 of the Civil Procedure Code. As such considering
that the findings of the Courts below are based on the oral and
documentary evidence adduced by the parties, there is no
scope for this Court to re-appreciate the evidence on record to
come to any contrary finding.
14. The contentions of the learned counsel for the
appellants that the spot inspection report establishes that the
possession of the suit plot was with the appellants cannot be
accepted. Admittedly, the said spot inspection report at
Exh.100 was prepared during the pendency of the suit. The
records are also said to be not complete. The learned trial
Judge while considering the said report has rejected the said
contention on the ground that the Talathi was examined and
had stated that he does not know personally anything about
the spot inspection report. The findings of the learned trial
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Judge cannot be said to be erroneous as the Talathi was
unable to prove the report.
15. With regard to the contention of the learned counsel
about the existence of the Bharat Medical Stores in the suit
plot the learned trial Judge at para 25 discussed the said
contention and held that the existence of such medical Stores
was not even pleaded by the appellants in the written
statement nor was this fact stated in the deposition of the
appellant. Once there are no pleadings to that effect, evidence
beyond the pleadings has no relevance. As such the Courts
below were justified in rejecting the said contentions of the
appellants.
16. The learned counsel for the appellants further
submitted that he is only in a possession of the area where the
iron structure is existing. Admittedly, such area has not been
identified by the appellants. The Courts below have
concurrently held that the plinth level construction was
erected by the respondent by rejecting the claim of the
appellants that such construction was put up by the husband
of the appellant no.1. Admittedly the said iron structure was
kept over and above the existing plinth. It is not disputed
that such iron structure is of a temporary nature. There is no
evidence on record adduced by the appellants that at any
point of time the appellants were occupying the said iron
structure. Though its sought to be claimed by the learned
counsel that some business activities were conducted in the
said structure but however no evidence of any nature has
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been produced to establish the said contention. In case such
activity was carried out, naturally there would have been
evidence such as tax receipt, electricity consumption bill and
so on showing that the appellants were in occupation of the
such structure. As no such material has been adduced by the
appellants it is obvious that the contention of the learned
counsel for the appellants that the iron structure was being
used for business activities has no force.
17. To claim physical possession a person should be in
such a position that he can deal with the property to the
exclusion of others. In the present case no evidence has
been adduced by the appellants to the effect that the
appellants had occupied the said structure at any point of
time. Both the Courts below have rejected the contention of
the appellants to that effect. Merely a sporadic act on the
part of the appellant no.1 of placing an iron structure in the
suit plot can by no stretch of imagination be considered that
the appellants are in possession of the suit plot. Said act
being a mischievous act committed by a trespasser can be
ordered to be removed by way of a mandatory injunction by
the true owner to prevent the perpetuity of a wrong.
18. With regard to the contention of the learned counsel
that the respondent ought to have filed a suit for restoration of
possession, and the relief for mandatory injunction was not
sufficient, I find considering the findings of the Courts below,
the question of seeking of restoration of possession does not
arise at all. The Courts below have concurrently held that the
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respondent is in possession of the suit plot. The Courts below
had found that appellant no.1 had kept only an iron structure
in the suit plot and the respondent is entitled to seek its
removal by way of mandatory injunction. On perusal of the
written statement by the appellants there are no pleadings to
disclose any act of continued possession by the appellants in
the suit plot. There is no material to establish any continued
occupation by the appellants of the said iron structure. It is an
admitted fact that immediately after the respondent noticed
that the appellant no.1 had kept the iron structure, the
counter claim was filed seeking for mandatory injunction. The
learned counsel for the respondent has relied upon the
judgment of this Court reported in 1980 Bombay 123 (Nagin
Mansukhlal Dagli V/s. Haribhau Manibhai Patel) this Court has
held at para 10 as under –
“prayer (b) of the plaint, in the guise of a prayer for a
mandatory injunction against the defendant to remove himself
from the said flat, is in substance no other than a prayer for
the recovery of possession of the said flat, Realizing full well
that the proper relief to pray for would be a decree or order
for possession but at the same time being desirous of bringing
the suit in this Court and simultaneously not wishing the suit
to suffer from a technical defect, the draftsman of the plaint
has in the said prayer sought to protect the plaintiff by using
the phraseology “that the defendant be ordered and decreed
by a mandatory order or injunction…” Thus, really, what is
prayed for is a decree for possession. ” It is now well settled
that when we haw to determine the nature of the suit what we
are to look at is the real substance of the suit and not legal
ingenuity in drafting the plaint. The plaint read as a whole
and the real substance of the suit leave no doubt that this is a
suit between persons who hold the character of a licensor and
licensee, which relationship having come to an end according
to the plaintiff, the plaintiff has become entitled both in law
and under the agreement of licence to recover possession of
the property from the defendant, his licensee.”
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In A.I.R. 1966 Bombay 113 (Miss. Aninha D’costs
V/s. Mrs. Parvatibai M. Thakur) the Division Bench of this Court
has held at para 2 as under –
“….but in that case we also pointed out that the Court would
be entitled to construe the plaint and if on a fair construction
the Court could arrive at the conclusion that what was really
intended by the plaint was a claim to possession, then the suit
ought not to be dismissed only on the ground that court-fee
had been paid as on an injunction. In view of this judgment,
Naik J. construed the plaint and directed the plaintiff to pay
the Court-fee which she would have been bound to pay as on
a suit for possession on the basis of the value of the property
as fixed by him……”
Considering that the appellants failed to establish
that they were in possession of the suit plot, the Courts below
were justified to come to the conclusion that the respondent
was entitled for mandatory injunction to direct the appellants
to remove the iron structure from the suit plot as well as for a
permanent injunction as prayed for and there was no need for
seeking restoration of possession. In any event the said aspect
has no relevance in view of the said judgment of this Court.
19. The learned counsel for the appellants has relied
upon the judgment reported in AIR 1993 S.C.957 ( Vinay
Krishna V/s. Keshav Chandra and another), A.I.R. 1972 S.C.
2685 ( Ram Saran and another V/s. Smt. Ganga Devi), to
support his submissions that the suit for injunction simplicitor
does not lie in case the plaintiff is not in possession of the suit
plot and without prayer for restoration of possession. The
Apex Court in Vinay Krishna, cited supra, held that the plaintiff
was not in possession of the house and as such was not
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entitled for a declaration in view of the proviso to Section 42 of
Specific Relief Act, 1877.
In the case of Ram Saran and another, cited supra,
the Apex Court held that when the defendant is in possession
of the suit property, the plaintiff without seeking restoration of
possession cannot seek for declaration of title.
The said judgments are not applicable to the
present case considering the concurrent findings of fact that
the respondent was in possession of the suit plot and the claim
of possession by the appellants being disbelieved.
20.
The learned counsel for the appellants was unable
to point out any perversity in the findings of the Courts below.
No substantial question of law arises in the present appeal
under section 100 of the Civil Procedure Code. Hence the
appeal stands summarily dismissed.
Judge.
Tambaskar.
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