1 S.A.No.734/10. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.734 OF 2010 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.Amol S.Sawant, advocate for the appellant. Mr.C.R.Deshpande, advocate for the Respondent Nos.1 to 5. CORAM : S.V.GANGAPURWALA,J. Date : 09.12.2010. 1. This is defendant's Second Appeal. The plaintiffs had filed a suit for possession in respect of the suit property. The trial Court dismissed the suit. The plaintiffs preferred an appeal. The appellate Court allowed the appeal and decreed the suit of the plaintiff. The defendant has assailed the said judgment in the present Second Appeal. 2. Mr. Amol S. Sawant, learned counsel for 2 S.A.No.734/10. the appellant strenuously contended that the lower appellate Court has committed an error in simply relying on the Sanad and passing a decree in favour of the plaintiff. The lower appellate Court has failed to consider that the actual owner of the suit property is State of Maharashtra and in absence of State of Maharashtra, the Court below could not have effectively adjudicated the lis. The learned counsel further contended that the Sanad is in the nature of license and so the provisions of Easement Act would be applicable. Once the house is demolished, the right of the plaintiff over that particular premises on the basis of Sanad would come to an end. Mr.Sawant, learned counsel further contended that Gram Panchayat had constructed the quarters for the sweepers and have allotted to them. As such no decree could have been passed in favour of the appellant. Merely, on the basis of Sanad, the plaintiff could not claim his ownership. Mr.Sawant, learned counsel relied on the Apex Court in a case of "Jagtu Vs. Suraj Mal and others" 2010 AIR SCW 5458. The said 3 S.A.No.734/10. judgment would be of no assistance to the appellant, in view of the fact that in the present case the Sanad issued in favour of the appellant is not disputed and the possession is sought against the appellant who had no right over the suit property. 3. Mr.C.R. Deshpande, learned counsel for the Respondents submitted that the Sanad is issued by the State of Maharashtra which is a proof of title. The person in whose favour the Sanad is issued, he is presumed to be the owner of the property. The defendants could not prove that they are the owners of the property but on the contrary, contend that the State of Maharashtra is the owner of the property. The defendant has not claimed to be the owner of the property, as such the suit of the plaintiff against the Gram Panchayat was always maintainable and State of Maharashtra was not a necessary party. The said property has been allotted vide Exh.75 in perpetuity. 4. With the assistance of the learned counsels, I have gone through the judgments 4 S.A.No.734/10. delivered by both the Courts. The factum of Sanad in favour of the present plaintiff is not disputed. As per Section 129 of the Maharashtra Land Revenue Code, the Sanad is prima facie proof of title. The State of Maharashtra has allotted the said land to the plaintiffs' predecessor to hold the said land in perpetuity . In such circumstances, the plaintiff had every right to protect his property and his rights over the said property. The defendant who had no right, title or interest in the suit property could not have assumed any right over the said property, interalia, their contention that they have constructed the premises over the suit property can not be considered nor same would be sustainable. 5. Even otherwise, the plaintiff has better title than the defendant. On the basis of principle of better title also, the plaintiff would be entitled for possession as defendant has no title to the suit property. 6. The Second Appeal being devoid of any substantial question of law, is dismissed. 5 S.A.No.734/10. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.09.12.2010. asp/office/sa734.10