1 fa18-90-j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.18 OF 1990 Shri Jyoti Laxman Kola ] (since deceased through his LR's) ] 1a. K. J. Rajendra ] Age 48 years. ] ] 1b. V. K. Malthi ] Age – 41 years. ] ] 1c. T. S. Sheela, ] Age – 39 years. ] ] Occu. of 1a to 1c-Service, ] All R/o. B-17, ] Shantiniketan Apts., ] Anna Nagar Madurai – 22, ] Tamil Nadu. ] ] 1d. K. J. Suresh, ] Age – 39 years, ] .. Appellants R/o. 295/06, Sardar Nagar No.1, ] Sion Koliwada, Mumbai – 37. ] V/s. 1. Jitnarayan Tiwari ] (Since deceased through his LR's) ] 1a. Omkarnath Jitnarayan Tiwari ] Age 63 years, Retired ] ] 1b. Tileshwarnath Jitnarayan Tiwari ] Age 55 years, Retired ] ] 1c. Kailashnath Jitnarayan Tiwari ] Age 52 years, Advocate ] 2 fa18-90-j. ] 1d. Jogeswarnath Jitnarayan Tiwari ] Age 49 years, Trade ] ] 1e. Bhuneshwar Jitnarayan Tiwari ] Age 45 years, Trade ] ] All residing at. No.2 Kamrunissa ] Sadan, Konkani Padha, ] Kurar Vilage, Malad (E), ] Mumbai – 400 097. ] 2. Rajaram Pandey ] (Since deceased through is LR's) ] 2a. Smt. Dubraji Rajaram Pandey ] Age 70 years, Occu. Household ] ] 2b. Prabhunath Rajaram Pandey ] Age – 50 years, Occu. – Trade. ] ] .. Respondents Both R/at. Krishna Nagar, ] Tahira Compound, Caves Road, ] Jogeshwari (E), Mumbai-400 060. ] ..... Mr. Rajesh N. Kachare for the appellants. None for the respondents. ..... CORAM : A. S. OKA, J. DATE : MARCH 9, 2011. ORAL JUDGMENT :- The original appellant is the original plaintiff and the respondents are the original defendants. The appellant filed a suit claiming to be the owner of the land admesaruing 2000 square yards out of Survey No.18 3 fa18-90-j. (Part) Kurar village, Bombay 64. The case made out by the appellant is that by the registered sale deed dated 20th July, 1967, he purchased the suit land from one Palani Acharya. It is alleged in the suit that the respondents by encroaching upon the suit land started construction. It is contended that the respondents are trespassers. Therefore, in the suit filed by the appellant, a prayer was made for declaration that he was the owner of the suit land and for mandatory injunction against the respondents as well as for a decree of possession. 2. The suit was contested by the respondents by filing separate written statements. The trial Court framed various issues. The first issue was whether the appellant has proved that his predecessor-in-title Mr. Palani Acharya was the owner of the suit land. The second issue was on the title of the appellant. The third issue was on the basis of the contention raised by the second defendant that one Zipar Maya who was stated to be the original owner had no right, title or interest in the suit land to sale or transfer the suit land to Palani Acharya who was the predecessor-in-title of the appellant. The fourth issue was on the basis of the plea of second respondent that the sale-deed in favour of the plaintiff was obtained by fraud. The fifth issue was on the title of the appellant. The trial Court held that the appellant has failed to prove 4 fa18-90-j. title of his predecessor-in-title. The trial Court held that the second defendant has established that the said Zipar Maya had no right to transfer the suit land to the predecessor of the appellant. However, the trial Court held that the second respondent has failed to establish his plea that the sale deed was obtained by fraud. However, the trial Court proceeded to pass a decree for removal of encroachment and possession without granting the relief of declaration of title. 3. It must be stated here that the Appeal filed by the respondents being First Appeal No.45 of 1989 has been dismissed by this Court by a separate order passed yesterday. The learned counsel appearing for the appellant submitted that the only ground on which the issue of title has been decided against the appellant is that though the said Zipar was a protected tenant and a deemed purchaser, there is nothing on record to show that before execution of sale deed by the said Zipar in favour of the predecessor-in-title of the appellants, any sale permission was granted. He submitted that the trial Court could not have gone into the issue of failure to obtain sale permission as the said issue did not arise. He pointed out that the title of Zipar was established and that the sale deed executed by Zipar in favour of Palani Acharya was produced and proved. He submitted that the sale deed executed by the Palani 5 fa18-90-j. Acharaya in favour of the appellant was also produced and proved. He, therefore, submitted that there was no reason to record findings on issue Nos. 1 and 2 against the appellant. None appears for the respondents. 4. The second respondent in his affidavit in reply which was treated as the written statement, contended that M/s. Estate Finance Limited was the original owner and the said Zipar was declared as protected tenant. It is contended that the said Zipar entered into the partnership with one Amiruddin and others in the year 1962 and on the dissolution of the partnership, area of 16,000 square yards out of Survey No.18 was taken over by the partners A. D. Shaikh and Siraj Amiruddin. It was contended that the said land was transferred in the name of the said partners and value of the share of Zipar was paid to his daughter and son-in-law from time to time. Thus, even the second respondent did not deny the title of Zipar as a deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the “said Act”). About the defence of the respondents regarding partnership, the trial Court has disbelieved the case by holding that the respondents have failed to established that they had acquired title or possession from the said Zipar through the said A. D. 6 fa18-90-j. Shaikh. Thus, the said defence of the defendant was rejected by the trial Court. 5. In paragraph No.10 of the Judgment, the learned Judge observed that the question to be considered was whether the ownership of the land from Zipar who was the protected tenant could vest in the predecessor in title of the appellant in absence of necessary permission under Section 43 of the said Act of 1948. The leaned Judge seems to have taken a view that as the sale permission was not placed on record, the transfer by Zipar in favour of the predecessor in title of the appellant was not legal and, therefore, no title has vested in favour of the predecessor-in-title of the appellant. 6. The affidavit dated 4th November, 1970 filed by the second respondent was treated as a written statement. Perusal thereof shows that there is no specific contention raised that the Deed of Conveyance executed by Zipar in favour of the predecessor in title of appellant was hit by Section 43 of the said Act of 1948. No such contention was raised even by the first respondent. 7. Perusal of the evidence recorded by the trial Court shows that the 7 fa18-90-j. Deed of Conveyance executed by the said Zipar in favour of the appellant's predecessor and the Deed of Conveyance executed by the appellant's predecessor Palani Acharya in favour of the appellant were duly proved and marked as Exhibits. The Conveyance Deed dated 22nd June, 1967 executed by Zipar was marked as Exhibit-“H” and Conveyance Deed dated 20th July, 1967 executed by Palani Acharya in favour of the appellant was marked as Exhibit-“G”. Both the documents are marked as Exhibits without any objection by the respondents. Therefore, the execution of both the sale deeds was duly proved by the appellant. Moreover, it is not disputed that the said Zipar was a deemed purchaser of the suit land. The learned Judge could not have found fault with the appellant on account of his failure to produce the sale permission obtained for the transaction of sale between Zipar and the said Palani Acharya. The sale deed was not challenged on that ground of any of the defendants. Perhaps, if there was a challenge to the sale deed on ground of want of permission under Section 43 of the said Act 1948, an issue on that aspect would have been framed. In such event, the appellant could have adduced evidence of existence of such permission. However, the issue never arose in the suit. In fact, the learned trial Judge has himself recorded that in the mutation entries which were exhibited on record, there is a reference to the sale 8 fa18-90-j. permission granted. As pointed out earlier, there was no such challenge to the sale deed on the ground of want of permission and, therefore, there was no occasion for the appellant to adduce evidence on that aspect. 8. In the circumstances, the finding of the learned trial Judge on issue Nos. 1, 2 and 5 will have to be set aside and the said issues will have to be answered in favour of the appellant. To that extent, the impugned decree will have to be modified. 9. Hence, I pass the following order : :: O R D E R :: (i) Clause (1) of the operative part of the decree is set aside and is substituted by the following : “ It is hereby declared that the plaintiff is the owner of the suit land more particularly described in paragraph (1) of the plaint.” (ii) The rest of the decree is maintained. 9 fa18-90-j. (iii) The Appeal is partly allowed with above terms with no order as to costs. JUDGE