1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.837 OF 1986 K.Mani Kawandar, 1A) Mrs.Kamal Kasi Kawandar & ors. : Appellants versus Cool Home Versova Co-operative Housing Society Limited and ors. : Respondents. Shri. D.S.Sawant for the Appellants. Miss R.C.Nichani for Respondent No.1. Shri E.K.Shashidharan for Respondent No.4. CORAM : R.M.SAVANT, J. Reserved on : 22/07/2008 Delivered on: 26/09/2008 JUDGMENT :- 1. The above First Appeal is filed impugning the Judgment and Decree dated 03/09/1986 passed by the learned Judge, City Civil Court, Bombay in S.C.Suit No.5985 of 1978. 2 2. The Appellants herein are the original Defendants and, the Respondent No.1 is the original Plaintiff. They would be referred to as per their status in the said suit. 3. The Respondent No.1, who is the original Plaintiff, is a Co- operative Society registered under the Maharashtra Co-operative Societies Act, 1960. It is the case of the Plaintiff that by a conveyance dated 30th March 1972, the Defendant No.8 conveyed the suit property to the Plaintiff which is land bearing Plot No.30, admeasuring about 652.16 sq.mtrs. at Andheri (west). Pursuant to the said conveyance, the Defendant No.8 i.e. Respondent No.3 herein handed over the possession of the said plot of land to the Plaintiff-Society. After the said plot was handed over, the Plaintiff applied to the Municipal Corporation of Greater Mumbai for sanction of plan for construction of a building. The plan was sanctioned but the construction could not be proceeded with on account of lack of funds. It is the further case of the Plaintiff that one of the Promoters of the Plaintiff – Society Shri.N.L.Peswani had engaged the Defendant No.1 3 K. Mani as a watchman. The said Defendant No.1, in collusion with the said Peswani constructed a shed admeasuring 10 x 10 on the Plaintiff's property. The Plaintiff made several complaints to the Municipal Corporation in regard to the said encroachment by the Defendant No.1, as a result of which the Corporation demolished one shed put up by the Defendant No.1 on 1st December 1995. Thereafter it appears that the Defendant No.1 put up another kutcha shed on the said plot in 1976. It appears that the Plaintiff made inquiry with the office of the Tahasildar at Andheri some time in October 1978 at which time the Plaintiff came to know that the Defendant Nos.1 to 7 were shown as occupants of the structures on the land of the Plaintiff. It is further the case of the Plaintiff that the Defendant No.1 has trespassed upon the Plaintiff' s land and the Defendants Nos.2 to 7 are the occupants of the structures put up by the Defendant No.1. In view of the fact that during pendency of the suit the Defendants started putting up further structures, therefore, the Plaintiff had to amend the plaint in the said suit and, the other persons who had come on site were added as party Defendants to the said suit. The 4 Defendant No.9 was one such party who was added as a Defendant to the said suit. The Plaintiff faced with no alternative, therefore, filed the above suit for a declaration that the Defendants are the trespassers on the Plaintiff's land being Plot No.30, admeasuring 652.16 sq.mtrs at Andheri. The Plaintiff also prayed for a decree of possession of the suit property and also for mesne profits. 4. In the said suit, the Defendant Nos.1 to 7 filed their written statement. It is the case of the Defendants that Defendant No.1 is in possession of the entire Plot No.30 and the adjoining Plot No.29 since 1962. It was further the case of the Defendants that there are seven structures out of which one is in possession of the Defendant No.1 and the remaining six are in possession of the Defendant Nos.2 to 6. It is further the case of the Defendants that the structures have been censused by the office of the Controller of Slums. It is also the case of the Defendants that the Defendant No.1 is the owner of a larger structure which is divided into seven parts. The said seven parts are seven sheds which are partly made of brick wall, C.T. Sheet, A.C 5 Sheet, bamboos and tarpaulin and are in existence since 1962. The Defendants in their written statement raised a plea of the pecuniary jurisdiction of the City Civil Court to try the said suit. The Defendant Nos.1 to 7 filed a supplementary written statement in which for the first time a plea of adverse possession was taken. 5. The Defendant No.8, who was the erstwhile owner of the suit property, has filed his written statement, but did not contest the suit. In his written statement, the Defendant No.8 contended that he was the owner of the suit plot prior to the sale which took place on 30th Mach 1972 to the Plaintiff. It is further stated by him in his written statement that the vacant possession of the land was given to the Plaintiff in pursuance of the sale and till the possession was handed over to the Plaintiff, he was in exclusive possession of the suit plot. 6. The Defendant No.9 filed his written statement separately. The stand of Defendant No.9 in his written statement was independent of the stand of the Defendant Nos.1 to 7. The Defendant 6 No.9 in his written statement claimed possession of the suit plot since 1968. It was his case in the written statement filed by him that Plot Nos.29 and 30 totally admeasured 1233 sq.mtrs out of which 864 sq.mtrs of land was in his possession. He also claimed ownership by adverse possession since 1968. The Defendant No.9 on the basis of his physical possession as a Scrap Dealer also claimed ownership of the Plot Nos.29 and 30 to the extent occupied by him on the basis of the adverse possession and also the ownership of the structure admeasuring 10' x 10' on Plot No.29. The Defendant No.9 claimed to have two sheds on Plot No.30. However, the two sheds were demolished by the Bombay Municipal Corporation in November 1978. 7. In so far as the Defendant Nos.10, 12, 13, 14, and 15 are concerned, it is their case that sale of the suit plot by Defendant No.8 to the Plaintiff is null and void and not binding upon them. According to them, the Defendant No.1 is in possession of the entire Plot No.30 and the adjoining Plot No.29 since 1962. The 10th Defendant claims to be the employee of the 5th Defendant. The 12th Defendant claims to 7 the employee of the Defendant No.1. The 13th Defendant claims to be the employee of the 6th Defendant. The 14th Defendant claims to be the employee of the Defendant No.1. The 15th Defendant, who claims to be the employee of the Defendant No.1, stated that he has nothing to do with Plot No.30. 8. The Defendant No.11 also filed his written statement wherein similar contentions have been raised by him. 9. A reading of the said written statements discloses that except Defendant Nos.8 and 9, rest of the Defendants claimed interest in the suit land through the Defendant No.1. In so far as 9th Defendant is concerned, as indicated above, he claims independent right to his shed and also claims ownership on the basis of adverse possession. 10. The trial Court on the basis of the pleadings inter-alia framed 15 Issues. However, considering the challenge raised in the 8 above First Appeal, which is as regards the title of the Plaintiff to the suit property and claim of the Defendants to the suit property by adverse possession in the above Appeal, the following Issues are relevant :- Issue No.5 :- Do Plaintiffs prove their title to the suit property? Issue No.7 :- Does Defendant No.1 prove that he has been in adverse possession of the suit property, as alleged in para 8 of the said W.S.? Issue No.8 :- Whether Defendant No.1 has become entitled to the suit property by virtue of adverse possession as claimed by him in para 10 of the said W.S. ? Issue No.11 :- Whether Defendant No.9 prove that he has right to remain in a portion of the suit property, as alleged in para 7 of the W.S. Dated 1st March 1981 9 Issue No.13 :- Whether Plaintiff are entitled to possession of the suit property or any part thereof ? If so, which part ? The said Issues have been answered by the trial Court as under :- Issue No.5 In the affirmative. Issue No.7 In the negative. Issue No.8 In the negative Issue No.11 In the negative Issue No.13 In the affirmative. 11. On behalf of the Plaintiffs as many as 11 witnesses were examined while on behalf of the Defendants two witnesses were examined. The evidence of said witnesses would be referred to at the appropriate places. 12. The parties went to trial. The trial Court on the basis of the 10 oral and documentary evidence, decreed the said suit in terms of prayer clauses (a), (b), (c) (d) and (k) of the plaint. By the said decree, the Plaintiff was held entitled to the possession of the suit plot from the Defendant Nos.1 to 7 the plea of adverse possession taken by the Defendants was rejected. As indicated above, it is this decree which is the subject matter of the above First Appeal. 13. Having regard to the submissions made by the learned counsel on behalf of the respective parties, the following documents are relevant; (i) Conveyance dated 30/03/1972 (Exh.B); (ii) Gift Deed dated 16/11/1929 (Exh.3-3/A) (iii) Mortgage Deed in favour of Rameshchandra Hanjarimal & Co executed by the Plaintiff (Exh.C) (iv) 7 x12 Extract and 3 Hakka Patrak (Exh.Z-27 Colly) (v) Forms (Exh.W) (vi) N.A. Assessment Orders. 11 14. I have heard the learned counsel for the parties. Shri.D.S.Sawant, learned counsel appearing for the Appellants, restricted his challenged to the decree and limited it to the title of the Plaintiff society to the suit plot and the case of adverse possession of the Defendants. Shri.Sawant, the learned counsel for the Appellants, submitted that on the basis of various documents and the oral evidence adduced on behalf of the Appellants in the said suit, the trial Court out to have held that the Respondent No.1 i.e. the Plaintiff was not the owner of the suit plot and that it had not acquired any right, title and interest thereto. Shri Sawant further submitted that though the Plaintiff claimed that it had purchased the suit plot by conveyance dated 30/03/1972 from the Defendant No.8, however, the description of the suit plot mentioned in the 1st Schedule appended to the sale deed clearly shows that it was a Government land. The 2nd Schedule, appended to the said sale deed also indicates that the Defendant No.8 claimed titled to the suit plot by virtue of Gift Deed dated 16/11/1929. According to Shri Sawant, the said Gift Deed was also in 12 respect of the vacant Government land. The trial Court, therefore, should have held that the Plaintiff had failed to prove its title to the suit plot. The learned counsel for the Appellant Shri Sawant further submitted that the trial Court had failed to appreciate that the suit plot was not properly identified as there were no boundary marks on the suit plot to indicate its independent identity as Plot No.30 and, therefore, the Defendant No.8 could not have delivered the possession thereof to the Plaintiff when the Sale Deed was executed. Shri Sawant further submitted that even when the evidence was recorded in the year 1984 there were no boundary marks on the site to indicate separate existence of the suit plot bearing Plot No.30 which fact was admitted by the witnesses of the Plaintiff i.e. P.W. Nos.6 and 7 in their evidence. Shri Sawant further submitted that the trial Court erred in accepting the evidence of Subhash Gandhi (PW 1), who was the only member of the Plaintiff Society examined in the trial Court. The trial Court failed to appreciate that the said Subhash Gandhi was incompetent to give any evidence regarding the acquisition of the suit plot and delivery of possession thereof in favour 13 of the Plaintiff as on his admission, the said Subhash Gandhi had become member of the Plaintiff only on 5th November 1978 and, therefore, he had no concern with what had taken place prior to 1978. The learned counsel Shri Sawant also submitted that the trial Court erred in recording the finding that the suit was maintainable at the instance of the said Subhash Gandhi and failed to appreciate that the said Gandhi was not competent to depose to the facts which had occurred prior to 5th November 1978. 15. Shri Sawant, the learned counsel for the Appellants, therefore, submitted that the finding of the trial Court in so far as title of the Plaintiff to the suit plot is concerned, was erroneous. 16. In so far as case of adverse possession is concerned, Shri Sawant submitted that on the basis of the evidence adduced by the Defendants, the case of adverse possession was proved by the Defendants. Shri Sawant further submitted that the Defendant No.1, through whom the other Defendants i.e. Defendant Nos.2 to 7 14 claimed, has very truthfully deposed that he is in possession since 1962 and the said stand of his has been consistent throughout. Shri Sawant submitted that the case of adverse possession is also proved on the basis of the documentary evidence in the form of N.A. Assessments for the year 1962 to 1978 which inter alia prove that the Defendant No.1 was in possession of the suit plot since 1962. Shri Sawant further submitted that though the Plaintiff claims to have purchased the suit plot by Conveyance dated 30/3/1972, the fact that the possession of the suit plot was handed over to the Plaintiff by the Defendant No.8 has not been proved and since the Defendant No.1 was in possession of the suit plot since 1962, and the Defendant No.8, through whom the Plaintiff claims had not taken any steps to remove him from the possession, the case of the Defendant No.1 that he is in possession since 1962 and adverse to the true owner is proved. Shri Sawant lastly submitted that the evidence on record fully supports the case of the Defendant No.1 as regards claim of adverse possession. Shri Sawant relied upon the Judgment of the Apex court reported in (2004) 3 SCC 376 in the matter of Vasantiben Prahladji 15 Nayak and ors. V/s. Somnath Muljibhai Nayak and ors in support of his submission that the starting point of limitation does not commence from the date when the right of ownership arises to the Plaintiff but commences from the date the defendant's possession became adverse. In the instant case, according to the learned counsel for the Appellants, the Defendant No.1 is in possession since 1962, the limitation in respect of the said adverse possession would have to be counted from the said date. The learned counsel also relied upon another Judgment of the Apex Court reported in (2004) 10 SCC 779 in the matter of Karnataka Board of Wakf v/s. Government of India and ors. In the said judgment, the Apex Court has laid down the ingredients necessary to substantiate a claim of adverse possession. The said ingredients are mentioned in para 11 of the said Judgment which are reproduced herein under :- (a) on what date he came into possession; (b) what was the nature of his possession; © whether the factum of possession was known to the other party; (d) how long his possession has continued and; 16 (e) his possession was open and undisturbed. Relying upon the said ingredients, Shri Sawant, the learned counsel for the Appellants, submitted that the ingredients necessary to sustain a plea of adverse possession are satisfied in the instant case. Shri Sawant, therefore, submitted that on both counts the decree passed by the trial Court is required to be set aside and the suit filed by the Plaintiff is required to be dismissed. 17. Ms.Nichani, the learned counsel appearing for the Respondent No.1/Original Plaintiff made her submissions as regards the issue of title and the plea of adverse possession raised by the Defendant Nos.1 to 7. Ms.Nichani submitted that the Plaintiff has proved its title to the suit plot on account of the following documents; (a) Registered Conveyance dated 30/3/1972 (Exhibit – B) where the suit plot is referred to as New Survey Nos.91, 95A; 17 (b) Gift Deed dated 16/11/1929 (Exh-3/A) which also refers to the suit land as Survey Nos.91 and 95A; © Mortgage Deed (Exh-C) executed by the Plaintiff in favour of Rameshchandra Hanjarimal & Co where the suit plot is also referred to as Survey Nos.91 and 95A; (d) 7 x12 extract (Exhibit E) and 3 Hakka Patrak (Exhibit Z-27) which refers to Plot No.30 admeasuring 780 sq.mtrs which were initially in the name of Joseph D'Zouza and thereafter in the name of the Plaintiff. (e) Certifiied copy of the Survey Plan prepared by the District Survey Officer which also refers to the suit plot as Survey Nos.91 and 95A. 18. According to Ms.Nichani the learned counsel for the Respondent No.1, the suit property has been consistently described in the said documents as such and, therefore, there is no discrepancy 18 in the description of the suit plot and, therefore, the Defendants' contention that the Plaintiff has not proved its title to the suit plot cannot be accepted. 19. In so far as plea of adverse possession is concerned, the learned counsel for the Respondent No.1 Ms.Nichani submitted that the claim on the basis of adverse possession was made for the first time in the supplementary written statement and was not there in the original written statement as filed and, is therefore, according to Ms.Nichani, an afterthought merely to somehow latch on to the suit property. She further submitted that the said plea is sought to be substantiated only on the basis of the N.A. Assessment Orders pursuant to which the N.A tax was paid for the first time in the year 1979. Ms.Nichani also submitted that in fact the Tahasildar's order levying N.A tax was set aside by the S.D.O in Appeal. She further submitted that the date when the Defendant No.1 actually came into possession is changed from time to time. The learned counsel for the Respondent No.1 submitted that in the suit filed by the Defendant 19 No.1 against the Corporation and the Society, the date mentioned was in the year 1962, but in another suit, there is a different date. Ms.Nichani, relying upon the evidence of D.W.1, submitted that when D.W.1 was not aware as to who is the owner of the suit plot, how could a plea of adverse possession be even taken. According to Ms.Nichani, the very essential ingredient of possessing the property with an attitude hostile to the owner was missing in the instant case. The learned counsel for the Respondent No.1 submitted that in so far as private owners are concerned, the adverse possession has to be for a period of 12 years and, in the instant case, apart from the fact that the said plea of adverse possession has not been substantiated, even period of 12 years is not satisfied. She further submitted that another aspect which requires to be taken into consideration whilst considering the plea of adverse possession of Defendant No.1 is that the shed of the Defendant No.1 in the suit plot was demolished in the year 1975 and again in the year 1978 by the Bombay Municipal Corporation and, therefore, no case for adverse possession could be made out by the Defendant No.1. 20 20. In so far as the Defendant No.9 is concerned, Ms.Nichani, the learned counsel for the Respondent No.1, submitted that though the Defendant No.9 was earlier independently claiming on the basis of his own possession, in the instant Appeal he supports the Defendant Nos.1 to 7 as the learned counsel appearing for him adopted the arguments made on behalf of the Defendant Nos.1 to 7. The learned counsel for the Respondent No.1, therefore, submitted that the Defendant No.9 would now stand or fall along with the Defendant Nos.1 to 7. Ms.Nichani lastly submitted that the findings of the trial Court on both aspects i.e. title and adverse possession require no interference from the this Court in its appellate jurisdiction. On the aspect of adverse possession, the learned counsel Miss Nichani relied upon the Judgment of the Apex court in the matter of T. Anjanappa and others v/s. Somalingappa and another reported in (2006) 7 SCC 570. In the said case the possessor was not sure whether plaintiff or the Government was true owner of the property, and therefore, it was held that claim of adverse possession is not 21 maintainable. The next Judgment relied upon by Miss. Nichani is the Judgment of the Apex Court in the matter of P.T. Munichikkanna Reddy and others v/s Revamma and others reported in (2007) 6 SCC 59 wherein the Apex Court has laid down the ingredients or the tests to be satisfied to sustain a plea of adverse possession. It is the submission of Miss Nichani that the said ingredients have not been satisfied. 21. I have heard the learned counsel for the parties and bestowed my anxious consideration to the said submissions. 22. Since at the trial the competency of the Secretary Subhash Gandhi to file the said suit was challenged, it would be relevant to decide, whether the said Subhash Gandhi had any authority to file the said suit on behalf of the Plaintiff Society. The suit has been filed by the Plaintiff Society pursuant to the Resolution dated 5/11/1978 passed by its Managing Committee which by the said Resolution decided to take all steps for obtaining vacant possession from the 22 Defendant No.1. By the further Resolution dated 6/7/1978, the Managing Committee authorised the said Secretary to take all the steps for obtaining the vacant possession from the occupants. Shri. Subhash Gandhi, the then secretary, was especially authorised to take all the steps and, thereafter the said suit came to be filed on 16/11/1978 and thus, the suit as filed by the said Subhash Gandhi was properly filed in terms of the Resolutions passed by the Plaintiff Society and, therefore, the finding of the trial Court on the issue of competency of the said Subhash Gandhi to file the said suit cannot be faulted with. 23. Now coming to the issue of title of the Plaintiff Society, the oral evidence of the Secretary Subhash Gandhi (PW 1) is relevant. It is through his evidence that the documents on which the society basis its title were produced. The basic document is the Conveyance dated 30/3/1972 (Exhibit B). The Schedule of the property mentioned in the said Conveyance shows that the Plot No.30 admeasuring 652.16 sq.mtrs forming part of the larger piece of land belonging to the 23 Defendant No.8 and bearing survey Nos.82-83 and 99, New Survey Nos.91 and 95A was sold to the Plaintiff Society. The next document is the Mortgage (Exhibit C) by which the Plaintiff mortgaged the suit plot in favour of Rameshchandra Hanjarimal & Co. The description of the property, as found in the schedule annexed to the Mortgage, shows that it tallies with the description in the Conveyance (Exhibit B). The said mortgage was subsequently redeemed by the Plaintiff. The next document is the Property Register Card which shows the Defendant No.8 as the holder of the property falling in Survey No.95. Thereafter 7 x12 extract (Exhibit E) issued in January 1979 which mentions Plot No.30 admeasuring 780 sq.yards. In the said 7 x 12 extract the name of the society is shown as Kabjedar and there is no other name of any other person in the other rights column. The next document is