1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.198 OF 1989 Manohar s/o Ramji Patil, age: 34 years, Occ: Business, R/o Vazirabad, District Nanded. Appellant Versus Sulochanabai w/o Shantilal Bakliwal, age: major, Occ: Household, R/o Vazirabad, Nanded, District Nanded. Respondent Mr.Suresh Kulkarni, advocate for the appellant. CORAM: R.M.BORDE, J. DATE : 17th June, 2009. ORAL JUDGMENT: 1 This is an appeal by original defendant raising exception to the judgment and decree dated 24.01.1989, passed by III Additional District Judge, Nanded in Regular Civil Appeal No.52 of 1986, whereby the first appellate Court, while allowing the appeal, has set aside the judgment and decree passed by the Court of first instance in Regular Civil Suit No.140 of 1981, decided on 20.01.1986. 2 The dispute relates to a wall which runs South-North and situate between House Nos.2-12-24 and 2-12-23. The disputed property is situate at Vazirabad, Nanded. Plaintiff – Sulochanabai had instituted suit 2 claiming perpetual injunction against defendant in respect of disputed wall. Plaintiff claims to be owner and possessor of suit house No.2-12-24, whereas defendant is owner and possessor of adjoining house bearing No.2-12-23. According to the plaintiff, the property has been alienated in her favour along with the disputed wall and as such, defendant has no right to interfere in her exclusive possession in respect of said wall. Plaintiff commenced construction on 01.03.1981 and sought permission from Municipal Council, Nanded. However, defendant obstructed the plaintiff and did not permit her to carry out the construction. As such, plaintiff was required to approach the Court claiming relief, as stated above. 3 Defendant resisted the suit by filing written statement. According to the defendant, disputed wall is common between the houses of plaintiff and defendant and the plaintiff has no entitlement to cause any damage to said wall. Plaintiff also has no right to construct stairs resting on the disputed wall. According to the defendant, there are stairs in the West-North corner of disputed wall and by the side of said stairs, there is a bathroom and water tank of the defendant. The stairs are rested upon the disputed wall. The disputed wall, stairs, bath room and water tank are the exclusive property of the defendant and he acquired same by virtue of sale deed executed by his predecessor-in-title in respect of House No.2-12-23. According to the defendant, the Municipal Council has no right to grant permission in favour of the plaintiff for raising construction by causing damage to the wall and merely because the plaintiff has secured certain permission, it does not vest any title in her. 4 The trial Court, after recording evidence of the parties, 3 dismissed the suit presented by the plaintiff. The trial Court came to the conclusion that although in the sale deed executed in favour of the plaintiff, disputed wall is stated to be transferred in her favour, however, by virtue of subsequent sale deed, it has been shown as a property common amongst the plaintiff and defendant. The predecessor-in-title of the plaintiff and defendant is one and same person. The trial Court, considering recitals contained in the sale deed executed in favour of the defendant, came to the conclusion that the plaintiff cannot be said to be exclusive owner and does not hold title in herself exclusively in respect of the suit wall. 5 Plaintiff approached the first appellate Court by presenting an appeal bearing R.C.A. No.52/86, which came to be heard and disposed of by III Additional District Judge, Nanded, who was pleased to allow the same and passed restraint order against the defendant restraining him from causing interference and obstruction to the possession of plaintiff in respect of disputed wall. The first appellate Court took a view that as the sale deed executed in favour of the plaintiff is earlier in point of time, same shall have precedence. It is observed by the first appellate Court that predecessor-in-title of the plaintiff and defendant, by executing sale deed on 11.02.1974, has already transferred the rights in respect of common wall in favour of the plaintiff. Although in the subsequent sale deed executed in favour of the defendant, the wall has been shown common amongst plaintiff and defendant, same shall have no consequence as there is already alienation in respect of right to possess said wall in favour of the plaintiff. The first appellate Court placed reliance on Section 48 of the Transfer of Property Act and recorded a 4 finding that the earlier sale deed executed in favour of the plaintiff has got precedence. 6 At the stage of admission of appeal, this Court has formulated Grounds No.III and IX, recorded in the memorandum of appeal, to be the substantial questions of law. Those are: III The lower Appellate Court erred in law in interpreting the sale deed at Exhibits-51 and 53, dated 8.6.1978 and 11.2.1974, respectively, in favour of the plaintiff. IX It is an error in law to apply Section 48 of the Transfer of Property Act to the instant case for holding that though the wall has not been exclusively transferred under the sale deed but by virtue of play of Section 48 of the TP Act, the plaintiff has become owner of the said property. 7 I have perused the judgments recorded by both the Courts below. In view of the provisions of Section 48 of the Transfer of Property Act, the purchaser of the property at earlier point of time has precedence as the transferor will have no entitlement at subsequent point of time to transfer the interest, which has already been transferred by him. Section 48 of the Transfer of Property Act provides thus: 48 Priority of rights created by transfer – Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights 5 previously created. 8 The view adopted by the first appellate Court appears to be reasonable. It is not disputed that the predecessor-in-title of the plaintiff and defendant was one and the same. It is also not disputed that the property was purchased by the plaintiff at earlier point of time and in the earlier sale deed executed in favour of the plaintiff, there is a recital in respect of transfer of ownership of the disputed wall by the transferor. The recital in the subsequent sale deed executed in favour of the defendant shall have no consequence in the background that in view of the earlier sale deed, the transferor has already transferred his interest. Although there is a recital contained in the sale deed executed in favour of defendant on 08.06.1978 to the effect that disputed wall in question would be common amongst plaintiff and defendant, same has no consequence as the transferor has already transferred his interest in that regard by executing sale deed in favour of the plaintiff at earlier point of time. The view adopted by the first appellate Court, therefore, cannot be said to be erroneous. There is no substance in the appeal. 9 Second Appeal, therefore, stands dismissed. In view of the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa19889