1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 529/2006 (Bagaji Thunaji Thakare & anr. Vs. Ramesh Kariappa Bhandari through L.Rs.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 24 th JULY, 2008. Heard Shri Kshirsagar for the appellants, and Shri Morande for the respondents. Appellants are the original defendants. A suit was filed by the plaintiff against the defendants for removal of encroachment. According to the plaintiff, he was the owner of the Agricultural Land bearing Gat No. 17 to the extent of 3.50 hectares. The land Kh. No. 9/17 came in his possession and ownership by virtue of a registered sale deed dated 9/7/1975 and land Kh. No. 9/12 was purchased by him by a registered sale deed dated 14/11/1975. He was, however, put in possession of the land Kh. No. 9/12 by virtue of agreement of sale executed in the year 1977. It was pleaded by the plaintiff that when he had gone out of station for a period of two months, the defendants, taking undue advantage of his absence, encroached upon Gat No. 17 by making 2 unlawful construction on the same. Though the plaintiff had issued notice for removal of encroachment, the defendants failed to remove the encroachment. Hence, the plaintiff had instituted a suit for possession. The plaintiff also sought permanent prohibitory injunction against the defendants. The defendant no.1 filed the written statement and denied the claim of the plaintiff. It was pleaded by the defendant no.1 that the agricultural land which was the subject matter of the suit, previously, belonged to one Nawab Saheb. It was the case of the defendant no.1 that he had constructed a pacca house in the year 1955 and since then, he had been residing there for a period of 50 years. He, therefore, claimed to be the owner of the suit land by virtue of adverse possession as he was in occupation of the same to the knowledge of said Nawab Saheb and had been enjoying the same peacefully, openly and without any interruption. The defendant sought for the dismissal of the suit. The trial Court, after considering the evidence on record, decreed the suit of the plaintiff by holding that the defendants had encroached on the suit land. The Court relied on the map drawn by the Commissioner/Surveyor who had measured the agricultural land. The Court held that the plaintiff 3 had succeeded in proving his ownership over the suit land by virtue of the registered sale deeds dated 9/7/1975 and 14/11/1979. The Court also held that the plaintiff was the absolute owner of the suit property. Since the Court held that the defendants were in illegal possession of the suit property and had failed to prove their title by adverse possession, the Court decreed the suit of the plaintiff. The Court held that the defendant had failed to prove that the property was owned by Nawab Saheb and the defendants had acquired ownership over the property by adverse possession. The judgment passed by the trial Court was confirmed by the appellate Court in an appeal. Shri Kshirsagar, the learned counsel for the appellant, submitted that the Courts were not justified in holding that the sale deeds executed in favour of the plaintiff on 9/7/1975 and 14/11/1979 were proved. No attesting witness was examined by the plaintiff for proving the same. The counsel for the appellant further submitted that a Trustee or Mutawalli of the Trust was not empowered to transfer the property in favour of the plaintiff as no permission for transferring the same was sought from the authority under the Bombay Public Trusts Act. It was also submitted on behalf of the appellant that the map drawn by the Commissioner ought not have 4 been relied upon by both the Courts as it was clear from the oral evidence, that the property was not properly described in the map. Shri Morande, the learned counsel for the respondents, supported the judgments passed by both the Courts, and submitted that the findings recorded by the Courts are pure findings of facts and this Court may not entertain the second appeal as they do not give rise to any substantial question of law. He, therefore, sought for dismissal of the appeal. I have perused both the judgments in detail. The plaintiff has examined himself and had deposed about the execution of the sale deeds dated 9/7/1975 and 14/11/1979. It is necessary to note that the defendants had not claimed title to the suit property on the basis of document of title and had merely pleaded that one Nawab Saheb was the owner of the suit property, and that they have become the owners of the suit property by adverse possession. Both the Courts held that the defendant no.1 had simply denied the execution of the sale deeds, but had not led any evidence in rebuttal. The Courts further considered the other documents on record which showed the ownership of the vendor from whom the plaintiff had purchased the suit property and the documents produced by the 5 plaintiff also showed that the name of the plaintiff was mutated in the revenue records. Both the Courts had recorded a finding that Nawab Saheb was not the owner of the suit property, and the vendors of the plaintiff had a right to transfer the property in favour of the plaintiff. It is necessary to note that the plaintiff had purchased the suit property from Shri Murtijakhan, Masudkhan, Saidkhan, Wahidkhan, Salma Begukm and Sou. Khairunnisa Begum. The Court also considered the fact that the defendants had not raised a plea in the written statement that the property was a Wakf property and, therefore, Khairunnisa Begum, a Trustee or Mutawalli of the Trust, could not have transferred the suit property in favour of the plaintiff in the absence of any permission from the authority under the Bombay Public Trusts Act. The appellate Court rightly held that the submission made on behalf of the appellant about the inability of the vendors of the plaintiff to transfer the suit property, was liable to be rejected. It is necessary to note that by the aforesaid submission made at the appellate stage, the plaintiff was definitely taken by surprise and was not in a position to rebut the same. In the absence of a plea, the first appellate Court had rightly not decided the question as to whether the suit property was 6 governed by the Wakf Act and the suit was liable to be dismissed because the Wakf Board was not made a party to the suit. The last submission made on behalf of the appellant about the inadmissibility of the Commissioner/Surveyor's report is also liable to be rejected as both the Courts, for cogent reasons recorded in writing, accepted the Commissioner's report and held that the defendants had encroached upon the plaintiff's land. The findings recorded by both the Courts on the question of ownership of the plaintiff and about the failure of the defendants to prove their adverse possession over the suit property, are pure findings of fact and do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP