1 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.265 OF 2005 WITH S.A.NO.411 OF 2005 WITH S.A.NO.412 OF 2005. WITH W.P.NO.7515 OF 2004. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.H.K.Mundhe, advocate holding for Mr.S.M.Kulkarni, advocate for the appellant/Petitioner. Mr.A.S.Bajaj, advocate for the Respondent. Mr.L.V.Sangit, advocate for the Respondent in W.P. CORAM : S.V.GANGAPURWALA,J. Date : 16.12.2010. 1. All these Second Appeals and Writ Petition involve common question of fact and law, as such are dealt with together. The Respondent claimed to be the owner of the suit property. He further claimed that the defendant 2 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. Municipal Council is the tenant, as such the appellant filed one suit for possession, another suit for injunction from alienating the property, third suit in respect of an injunction not to construct the approach road and the 4th suit in respect of rent and mesne profits. The trial Court decreed the suits. The Municipal Council preferred an appeal. The District Court dismissed the appeals and confirmed the findings of the trial Court. The Municipal Council has assailed the judgments and the findings in the present Second Appeals. 2. Mr.H.K.Mundhe, learned counsel for the Municipal Council submits that the plaintiff could not prove his ownership over the suit property as such is not entitled for any relief. It is also not proved that his predecessor-in-title was the owner of the property nor his name was at any point of time entered in the relevant records. Mr.Mundhe, learned counsel submits that the theory put forth by the plaintiff about oral agreement is highly improbable and can not be digested as the Municipal Council can not enter 3 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. into oral agreement. 3. The learned counsel further contended that the sale deed of the plaintiff also does not clarify that it is in respect of suit property, as such the plaintiff does not get any right, title or interest over the suit property. The reliance placed by the Courts below at Exh.37 i.e. the Resolution No.31 passed by the Municipal Council is totally misplaced inasmuch as in the said Resolution, the Municipal Council, nowhere admits the ownership of the plaintiff nor has admitted the tenancy. It was on the say of the plaintiff the said Resolution was passed. The same does not give any rise to any contractual relations between the parties. According to the learned counsel the Courts below committed an error in passing the decree against the Municipal Council. 4. Per contra, Mr.Bajaj, learned counsel submitted that even the witnesses of the defendant have admitted that there is nothing on record to show that the Municipal Council is the owner of the property. It has been proved by the 4 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. plaintiff that Mohd.Jummakhan was the original owner. He had sold it to Shivprasad who in turn had sold it to the plaintiff but the name of Jummakhan could not be recorded as objection was raised by the other heirs. Even the proceedings before the revenue authorities had taken place and in the year 1992, the judgment was passed by the quasi judicial authority specifying that the plaintiff's sale deed includes the properties which is a suit property. The said judgment has become final and has not been challenged by the Municipal Council. According to the learned counsel it is settled norms and practice that the rent as determined by the B & C Department is to be charged and in view of that Resolution No.31 (Exh.37) was passed. 5. With the assistance of the learned counsel, I have gone through the judgments. The Municipal Council could not produce any record to substantiate that they have got any semblance of ownership rights over the suit property. On the contrary, their acts of commission such as passing of the Resolution NO.3l (Exh.37) shows 5 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. that they have tacitly accepted the plaintiff to be the landlord and the matter was to be referred to the B & C Department for computation of the rent. The proceedings before the revenue authorities have also attained finality, wherein it has been specified that the properties which were detailed in the sale deed are in respect of City Survey numbers which is a part of the suit property. The details of the ownership of the predecessor has also been given by the plaintiff which shows that the plaintiff has right, title and interest over the suit property. 6. The Courts have evaluated the total evidence on record and have come to a probable and plausible conclusion. The plaintiff has proved the case by preponderance of probabilities. In that light of the matter the conclusion drawn by the Courts below is a plausible conclusion, the Second Appeal can not be entertained only on the ground that some other conclusion may also be possible. Regarding the injunction, the Municipal Council can not construct roads as an approach road when the 6 S.A.No.265/05 with connected SAs. and W.P.No.7515/04. decree for possession itself is passed, no question arises of construction of road for approach purpose. If the Municipal Council wants to construct any road, they have to follow the procedure of law and by following due process of law can construct the road if they so desire. The mesne profits and the rent has been arrived at by taking into consideration the evidence on record. 7. In light of the above, The Second Appeals being devoid of any substantial question of law, are dismissed, so also the Writ Petition. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.12.2010. asp/office/sa265.05 7 S.A.No.265/05 with connected SAs. and W.P.No.7515/04.