:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.530 OF 1991 SECOND APPEAL NO.530 OF 1991 SECOND APPEAL NO.530 OF 1991 Pukaraj Rupchand Jain (Since deceased by his legal representative) Mrs.Gulabbai Rupchand Jain ...Appellant. (Org.Plaintiff) v. 1. Laxman Vinayak Bhawe, deceased by legal representatives 1/1. Suman Laxman Bhawe 1/2. Lata Laxman Bhawe 1/3. Sudha Laxman Bhawe 2. Kusum w/o Laxman Bhawe ( Appeal stands dismissed as against respondent no.2 as per Court’s order dated 22/7/2005) 3. Vijay Laxman Bhawe ...Respondents. (Org.Defts.) Mr.P.S.Dani i/by M/s.Legasis Partners , adv. for the Appellant. Mr.C.M.Korde Sr. Advocate with Shri Ashok Shaligram, Sandesh Patil i/by Shivraj Patil , advs. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 10th September, 2008. DATE: 10th September, 2008. DATE: 10th September, 2008. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. This appeal is filed by the legal representative and the widow of the original plaintiff Pukaraj Rupchand Jain challenging the judgment passed by the learned Additional District Judge, Thane whereby he allowed the Civil Appeal No.147 of 1991 filed by the respondents/original defendants challenging the decree passed in Regular Civil Suit No.218 of 1979 by the 2nd :2: Joint Civil Judge, Junior Division, Thane. 2. To state in brief, the original plaintiff Pukaraj Jain claimed to be owner of the land bearing Survey No.363, Hissa No.3 admeasuring 9 and half gunthas situated at Thane, (hereinafter referred to as the ’Suit Property’). According to him, his vendor Mohanlal Chagmalji had purchased the suit property in Court auction held on 10th September, 1959 and the plaintiff purchased the suit property from said Mohanlal under registered sale-deed dated 9th October, 1961. According to the plaintiff, he was put in possession of the suit property at the time of execution of the sale deed and since then he has been in continuous possession of the suit property. Defendants had no right, title or interest in the suit property. Thus, the plaintiff claims title over the property. Alternatively, he contended that his possession is uninterrupted, continuous, open since 1961 and hostile to the title of the true owner, if any. He contended that the Special Executive Magistrate, Thane had wrongly passed an order dated 6th October, 1977 holding that the defendant was in possession of the suit property and that order is liable to be set aside. Plaintiff filed suit for declaration of his title of ownership and for perpetual injunction restraining the defendants from interfering in his possession. It may be noted that the order passed by the Executive Magistrate under Section 145 of :3: the Cr.P.C. was challenged by the plaintiff and he could not succeed and finally pending the suit, that order was executed in 1980 and the defendant was put in possession of the property. The defendant resisted the suit by various contentions. Basic contention of the defendant is that the property, which the plaintiff is claiming belongs to the defendant and the property bearing city survey no.363/3 situated at Pachpakhadi, Thane, which the plaintiff claims on the basis of sale deed executed in his favour by Mohanlal, is not in existence because the property, which he had purchased has been already given different survey numbers. According to the defendant, Damodardas Tribhuvandas, Surajbai Narottamdas and her 3 sons viz. Harshadrai, Harkisandas and Narendrakumar were original owners of land bearing survey no.363A admeasuring 3 Acres 32 III Gunthas. They had sold 9 and half gunthas land out survey no.363A alongwith some other properties to Dr.Khanbahadoor Framroj Moose by registered sale deed dated 12th January, 1928. Dr.Moose gifted that property to his daughter Meherbai Hirajibhai Warden by registered gift deed dated 21st August, 1929. Meherbai sold the said property to the defendant under registered sale deed dated 24th July, 1936. Since then, the defendant was in continuous possession of the said land. According to the defendant, 9 and half gunthas land purchased by him from Meherbai is the same on which the plaintiff is laying claim in the suit. It is contended :4: that after getting the sale deed of portion of land from survey no.363/3 executed by Mohanlal, the plaintiff had made several attempts to encroach upon the suit property but his attempts were failed because of legal action taken by the defendant. Defendant denied that plaintiff was ever in possession of the suit property. According to the defendant suit is also barred by the limitation. 3. Several issues were framed by the trial Court and after hearing the evidence for the parties, the trial Court came to conclusion that plaintiff was put in possession of the suit property on the date on which the sale deed was executed in his favour by Mohanlal and he is the owner of the said property. All the contentions of the defendant were rejected. The trial Court also held that the suit is within limitation. According to the trial Court, the order passed by the Special Executive Magistrate was illegal and not binding on plaintiff. In the result, suit came to be decreed in favour of the plaintiff. 4. Legal heirs of the original defendant Laxman preferred civil appeal no.147 of 1991 challenging the judgment and decree passed by the trial Court. After hearing the parties, the learned lower Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. The lower appellate Court came to conclusion that the plaintiff had not identified :5: his property correctly. The land, which he had purchased from Mohanlal, was already converted into land survey no.363A/2 way back in 1945 and the suit land which presently bears survey no.363A/3 is equivalent to city survey no.171 and this property was purchased by the defendant. The learned lower Appellate Court came to conclusion that the plaintiff was never put in possession of the property, which he had purchased. As he had tried to encroach upon the suit land belonging to the defendant, defendant had filed regular civil suit no.279 of 1977 and had also initiated proceeding under Section 145 of the Cr.P.C. As Executive Magistrate had passed an order in favour of the defendant and he was put in possession of the land, he had withdrawn the suit. In view of this, legal representative of the original plaintiff has preferred the second appeal. 5. Heard the learned counsel for the Parties. The learned counsel have extensively taken me through the judgments of both the Courts below and oral and documentary evidence placed on record. 6. Second Appeal is admitted on the ground nos.2, 3, 4 and 8, which read as follows: 2) That the substantial question of law that arises for consideration is whether the Plaintiff’s derivative title can be questioned by holding that the suit property was not in :6: existence during Court Auction in the year 1959. 3) That whether the lower Appellate Court was justified in going behind the decree passed in Civil Suit No.37/1955 and which was subsequently executed on 10th September, 1959. 4) It ought to have been seen that the Plaintiffs predecessor-in-title Mohanlal Chagmalji had purchased the suit property in Court Auction on 10th September, 1959 and that the same was sold to the plaintiff vide registered sale deed dated 9th October, 1961. 8) That the lower Appellate Court has totally misconstrued and misinterpreted Exh.112 (Sale certificate) and Exh.118 (Sale-warrant). These two documents which form the basis of the Plaintiff’s title have been wrongly interpreted thereby causing grave prejudice to the plaintiff. 7. On perusal of the record, certain facts have become clear, which are no more in dispute. Originally the land bearing survey no.363A admeasuring 3 acres 32 III Gunthas belonged to the Damodardas Tribhuvandas, Surajbai Narottamdas and her three sons viz. Harshadrai, Harkisandas and Narendrakumar. Besides some other properties, they sold 9 and half gunthas out of Survey No.363A to Dr.Moose under the sale deed executed on 15th December, 1927 and registered on 12th January, 1928 vide Exhibit 150. Boundaries of the land are given in the sale deed. Dr.Moose gifted the property to his daughter Meherbai under gift deed dated 15th August, 1929 and registered on 21st August, 1929 vide Exhibit 151. Meherbai sold the same properties to the defendant under sale deed Exhibit 152. That sale deed was :7: executed on 22nd July, 1939 and was registered on 24th July, 1939. Under that sale deed, defendant purchased the same 9 and half gunthas land out of survey no.363A, which was purchased by Dr. Moose from the original owners and the defendant claims to be in possession of that property since the date of purchase. 8. From the record, it also appears that one Mr.Yashwantprasad Hariprasad Desai had purchased 10 and 1/4 gunthas of land out of survey no.363A from the original owners as per the sale deed Exhibit 159. The sale deed was executed on 12th August, 1928 and registered on 21st August, 1928. Later on, in execution of the decree passed in civil suit no.37 of 1955 against Vidyutrai son of Yashwantprasad Desai, that land was put to auction sale and Mohanlal had purchased the said land in auction sale and the sale certificate was issued on 10-9-1959. Plaintiff purchased the same property from Mohanlal on 10-9-1961 under registered sale deed. Even though the plaintiff claims that he was put in possession of the suit land on the date of execution of the sale deed by Mohanlal, this part of his plea and evidence is falsified by the documentary evidence. Sale deed Exhibit 111 executed by Mohanlal in favour of the plaintiff clearly shows that Mohanlal had not received the possession of the land from the Court and, therefore, he was unable to give physical possession of the land to the plaintiff. It was clearly mentioned in :8: the sale deed that the plaintiff was to take legal steps for taking possession of the land from the Court. Not only this in the same sale deed, it was also mentioned that Mohanlal would not be responsible if any objection would be taken in future about the said transaction and possession. From the record, it is also clear that Mohanlal had never made any application to the civil Court for taking possession of the land on the basis of auction sale nor he had put the plaintiff in possession of the land. It is admitted fact that plaintiff himself never approached the Court to take possession of the land on the basis of that sale deed or the auction sale certificate. 9. Question is whether the plaintiff has filed the suit about the property, which he had purchased or he has filed the suit claiming title over the property belonging to the defendant. The learned Additional District Judge has minutely considered the documentary evidence in this regard in the judgment in the first appeal. He noted that the land records were prepared somewhere in 1945 and measurement of pot hissas of land survey no.363A were taken. Original three hissas were cancelled and land survey no.363A was renumbered as Hissa Nos.1 to 18 and accordingly, mutation entry no.1114 dated 31st January, 1946 was taken. The land, which was purchased by the defendant was re-numbered as survey no.363A/3 and the part of the land bearing survey :9: no.363A, which was purchased by the plaintiff was merged in survey no.363A/2. 10. Record reveals that both the parties were claiming title over the land bearing survey no.363A/3 and both the parties applied for measurement before the City Survey Officer/ District Inspector Land Records and City Survey Officer by his order dated 17-4-1984 held that the defendant was the owner of this property and he directed to remove the name of the plaintiff Pukaraj from that record. By that time, the land was given city survey no.171. As per that order, name of the defendant was recorded as a Kabjedar of land bearing survey no.171. That Order was challenged by the plaintiff before the Consolidation Officer, Thane. Consolidation Officer, Thane set aside the order of District Inspector Land Records. The order passed by the Consolidation Officer was challenged by the defendant before the Deputy Director of the Land Records who allowed the appeal filed by the defendant by his order dated 13th February, 1987 and he came to conclusion that the land purchased by the defendant and the land which was put to the action sale dated 15-6-1959 were different and that the land bearing city survey no.171 was the same land, which was purchased by the defendant on 22-7-1939. Order of the Deputy Director was challenged by the plaintiff before the Government and the Principal Secretary (Revenue Appeal and Revisions) dismissed the :10: revision application filed by the plaintiff by his order dated 31st March, 1989 and thus, revenue record clearly shows that the land purchased by the defendant in 1939 and which was re-numbered as survey no.363A/3, now city survey no.171 is the property of the defendant. The land purchased by the plaintiff from Mohanlal is different. It appears that plaintiff is claiming the property, which was purchased and which was owned by the defendant. The learned Additional District Judge, Thane minutely considered the record and came to conclusion that the plaintiff had failed to identify his property correctly and had made a claim over the property of the defendants and, therefore, suit was liable to be dismissed. 11. The learned counsel for the defendant/respondent invited my attention to the documents, which were executed by the parties in support of his contention that the plaintiff is not owner of the suit property and that his property is different. Exhibit 150 is the sale deed in favour of Dr.Moose. As per this sale deed, Dr.Moose had purchased the land bearing Tika No.14. The said Tika Number consisted of lands bearing survey no.363A and 363B. He had purchased 1145 sq.yards of the land survey no.363A and 1633 sq.yards bearing survey no.363B. Sale deed reveals that land survey no.363A and 363B formed one block and that property was bounded to the East by land belonging to Dr.Moose, to the West by :11: Bombay-Agra Road and new proposed road, to the South by a Nala and to the North by land belonging to Dr.Moose and part of Bombay-Agra Road. This property purchased by Dr.Moose was clearly de-marketed in the sale deed. Not only the description was given in the body of the sale deed, map of the land was also attached to the sale deed. Same property with same description was given in gift by Dr.Moose to his daughter Meherbai as per Exhibit 151. The same property was purchased by the defendant from Meherbai under sale deed Exhibit 152. In the sale deed Exhibit 152 area of the survey no.363A was shown as 9 and half gunthas, equivalent to 1145 sq.yards and area of the property from survey no.363B is also given in the sale deed. 12. Yashwantprasad Desai had purchased in all five properties from the original owners under sale deed Exhibit 159. One of those properties was shown to be land situated at Pachpakhadi bearing survey no.363 (part) admeasuring 1227 sq.yards. Other four properties were parts from survey no.7,8, 367 and 368. All these five properties were shown to be bounded on or towards the North by land under survey no.363 (part) and survey no.368 (part), on or towards the South by land survey no.77 and boundary of Chendani, on or towards East by the boundaries of Chendani and Thane and public passage and on or towards the West by the land survey no.8 part of Nawpada, by proposed road and beyond that land survey :12: no.7 (part) Nawpada, Survey No.367 part and 363 part of Pachpakhadi. These properties purchased by Yashwantprasad had its own boundaries given in the sale deed. It is material to note that in the auction notice in Special Darkhast No.30 of 1958 against Vidyutrai Y. Desai, besides the other properties, property bearing survey no.363/3 was put to sale. However, boundaries of the land were not shown. In that auction notice, it was made clear that decree holder would not be responsible for any mistake in the description of the property given in the auction notice. Admittedly, on the basis of auction notice, Mohanlal, the vendor of the plaintiff, claimed to have purchased the land survey no.363/3 (part). Exhibit 175 is the map of the property bearing survey no.363A, 367 and 368 prepared in 1929 by the Revenue Department. In this map, property shown as 363A/1 was marked and was shown to have 9 and half gunthas belonging to Meherbai and the land survey no.363A/3 admeasuring 10.25 gunthas was shown to be owned by Yashwantprasad Hariprasad. From this, it is clear that the Yashwantprasad had purchased 10.25 guntha out of survey no.363A while the plaintiff claims 9 and half gunthas of the land. Location of the survey no.363A/1 and 363A/3 clearly shows that these properties were situated far away from each other. The property shown as survey no.363A/3 tallies with the property, which was purchased by Yashwantprasad while the property bearing survey no.363A/1 tallies with the property, :13: which was purchased by Dr.Moose. If the boundaries given in the respective sale deeds are carefully seen, there remains no doubt that the property belonging to the defendant is totally different from the property, which was purchased by the plaintiff or his predecessor. 13. Taking into consideration all the material including various sale deeds, revenue record and maps, I find that the learned First Appellate Court had rightly appreciated the evidence and had come to conclusion that the plaintiff had failed to identify his property correctly and was wrongly laying claim on the property of the defendant. Therefore, I find no merit in the present appeal. 14. In the result, Appeal stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)