1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 414 OF 2003 Devanand Sahebrao Rockhakari Appellant Versus The State of Maharashtra Respondent Shri V.D. Hon, advocate for the appellant. Shri Umakant Patil, AGP for the State. CORAM: R.M.BORDE, J. DATE : 17th August, 2009. PER COURT : 1 Appellant / original plaintiff is raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 301/1993 claiming relief of declaration of ownership and perpetual injunction in respect of a strip of land out of survey no. 189 alleged to have been purchased by him from one Dattatraya Rangnath Kondo by securing a registered sale instrument on 6-7-1992. The land survey no. 189 was originally owned by one Dhondiba Deorao Dharashivkar. He transferred two acres of land under 2 registered sale-deed dt. 10-7-1967 in favour of one Rangnath Vitthalrao Kondo. The boundaries of the property purchased by Rangnath Kondo under sale-deed dt. 10-7-1967 are as below : Towards East - Land belonging to Mallikarjun Vishwanath West - Government Godown and remaining land out of said survey no. South - Remaining land out of said survey no. North - Kakamba road. . Rangnath further purchased an area to the extent of 4 acres and 8 gunthas under the registered sale-deed dt.21-1-1968. Boundaries of the area purchased by Rangnath under the sale-deed dt.21-1-1968 are as below : Towards East - Land belonging to Vaze West - Government road South - Land alienated in favour of Tuljabhavani Housing Society North - Land purchased by Rangnath from said survey no. . Plaintiff is alleged to have purchased a strip of land from the legal heir of deceased Rangnath by securing registered sale-deed on 6-7-1992. The boundaries of the area given are : 3 Towards East - Government godown South - Land of the owner from said survey no. West - Tuljapur - Osmanabad road North - Ujani road (Government road) . It is the contention of the plaintiff that defendant / State Government has acquired an area to the extent of 1 acres and 10 gunthas and has raised construction of godown. Acquisition by the State Government is prior to alienation made by Dhondiba Dharashive in favour of the predecessor in title of the plaintiff. Acquisition made by the State Government was during the year 1950 and thereafter the State Government constructed godown over the acquired property. It is the contention of the plaintiff that there is a strip of land which was available with the owner which is situate between the Government road on the one side i.e. western side and the acquired property belonging to the State Government on the eastern side. Defendant contends that such a strip was not available with the owner for alienation. It is further contended that acquisition by the State Government was in the year 1950 and such an area was infact not even alienated in favour of the predecessor in title of the plaintiff. Both the courts below after considering the evidence placed on record have concurrently recorded finding that the plaintiff 4 has failed to establish his title in relation to the suit property. 3 Learned counsel appearing for the appellant has vehemently contended that appreciation of evidence by the courts below is perverse. There was a strip available with the owner i.e. predecessor in title of the plaintiff which has been transferred by him in his favour by executing sale-deed in the year 1992 and this fact has not been considered by both the courts below. It is his contention that the measurement maps those are placed on record by the parties are not correct and as such it was necessary to direct the DILR to conduct measurement afresh. Such a direction in fact was issued by this court and the report submitted by DILR is placed on record. Learned counsel for the appellant seeks leave to place reliance on the report of the DILR and the map tendered by him and wants to contend that when the measuring officer has recorded 4 gunthas land in excess of area under the acquisition, it is to be presumed that the said area belongs to the plaintiff and he is entitled to said area. It is the contention of the plaintiff that the report of the measuring officer alongwith the map is required to be considered as additional evidence. 5 4. I have considered the submissions made by learned counsel for the appellant. The basic question is as to whether the predecessor in title of the plaintiff had entitlement to the property or a strip of land as claimed by plaintiff and, if the predecessor in title of the plaintiff did not have entitlement to the said strip / area of land, he cannot validly transfer the title. For considering whether the predecessor in title of the plaintiff had infact entitlement in relation to the property, one has to consider the boundaries mentioned in the sale-deed executed in favour of the predecessor in title of the plaintiff. I have quoted the boundaries mentioned in both the sale-deeds i.e. in respect of an area alleged to have been purchased by the predecessor in title of the plaintiff. On consideration of the boundaries in respect of the area alleged to have been purchased by the predecessor in title, it cannot be concluded that the strip of land between the Government road and the area acquired by the Government for the purpose of godown was purchased by his predecessor in title under any of the sale-deeds and was infact available for him for making alienation in favour of the plaintiff. Considering the boundaries mentioned in both the sale-deeds exh. 67 and 68, it cannot be concluded that the area purchased by predecessor in title of the plaintiff comprises of the strip falling between the Government godown 6 and the Government road on the western side. In order to get over this difficulty and after initiation of the litigation, correction deed was got executed by the predecessor in title of the plaintiff from the legal heirs of Dhondiba i.e. the original owner of the land and it has been mentioned in the correction deed that by virtue of sale-deed executed on 27-1-1968, in respect of 4 acres and 8 gunthas land, infact an area or a strip falling between the Government road and the Government godown has also been alienated in favour of the predecessor in title of the plaintiff i.e. deceased Rangnath. Relying upon the correction deed got executed on 13-10-2000, plaintiff wants to claim that an area / strip of land which has been alienated by Dattatraya i.e. son of original owner in his favour is in effect a valid transfer of said area. In order to appreciate the contentions raised by plaintiff, one has to take into account that the sale-deed in respect of 4 acres and 8 gunthas was got executed by Rangnath on 27-1-1968. His son Dattatraya thereafter proceeded to alienate the disputed strip of land in favour of the plaintiff by executing sale-deed on 6-7-1992. After finding that the sale-deeds got executed by deceased Rangnath apparently do not have an effect of transfer of an area / strip of land falling between the Government land and the godown, correction deed is got executed in the year 2000, obviously, with a view to 7 get over the difficulty which may arise in the way of purchaser of the property. It is also to be appreciated that before securing execution of the correction deed, the disputed plot had also changed hand and the sale-deed was effected in the year 1992 itself. Correction deed executed in the year 2000 therefore will have an effect so far as entitlement of the plaintiff in relation to the suit property is concerned. These aspects have been taken into account by the courts below while appreciating the evidence. 5 In my view on perusal of the sale-deeds placed on record, it transpires that the strip of land in question has not been transferred in favour of predecessor in title of the plaintiff by the original owner Dhondiba. Moreover, existence of the strip and availability of the area for the use of original owner is itself questionable. In the light of the documentary evidence placed on record, contentions raised by the State Government that the area acquired by the State Government extends to the Government road on the western side will have to be accepted. Considering the relevant circumstances and on appreciation of the sale-deeds which are placed on record, I am of the considered view that the predecessor in title of the plaintiff had no title to transfer the 8 disputed area in favour of the plaintiff. View adopted by the trial court which has been confirmed by the first appellate court therefore appears to be reasonable and proper. No substantial question of law arises for consideration in the instant appeal. Arguments advanced are essentially the matters relating to appreciation of evidence. The instant appeal does not require any consideration. Appeal stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa414.03.odt