1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.387 OF 2009 Prabhakar s/o Sadashiv Patole, Age-59 years, Occu:Pensioner, R/o-Vadekar Chawl, Station Road, Dhule, Tq. & Dist-Dhule. ...APPELLANT. VERSUS 1) Shri Bhaskar s/o Shankar Marathe, Age-Adult, Occu:Tanga player, 2) Shri Subhash s/o Shankar Marathe, Age-45 years, Occu:Service, 3) Deelip s/o Shankar Marathe, Age-40 years, Occu:Service, All R/o- Vadekar Chawl, Station Road, Dhule, Tq. & Dist-Dhule, 4) Dhule Municipal Corporation, Dhule. ...RESPONDENTS. .... Mr. S.I. Nandode Advocate for the Appellant. .... CORAM: K.K. TATED, J. ORDER RESERVED ON : 18TH JUNE, 2009 ORDER PRONOUNCED ON : 26TH JUNE, 2009. 2 ORDER: 1. Heard Mr. Nandode, learned counsel for the Appellant. 2. The present Second Appeal preferred by the original Plaintiff against the Judgment and decree dated 10th December, 2008 passed by District Judge-3, Dhule in Civil Appeal No.42 of 2007 arising out of the Judgment and decree dated 2nd September, 2006 passed by 3rd Joint Civil Judge, Junior Division, Dhule in Regular Civil Suit No.247 of 1998. The Appellant herein above is original plaintiff and Respondents are original defendants. 3. It is the case of the Appellant that he provided Respondents and their family on live and license basis his house property within the territorial jurisdiction of Dhule Municipal Corporation, Dhule. The Appellant further submitted that the Respondents’ father agreed that they will vacate the suit premises after the original plaintiff’s son becomes major. The Appellant further 3 submitted that his forefather were owner of the suit premises and he inherited the same on succession. It is the case of the Appellant that in 1998 the Appellant called upon Respondents to vacate and handover vacant and peaceful possession of the suit premises as the same required by the Appellant and his family members. Inspite of several reminders and requests, it remained on the part of the Respondents – original defendants to vacate and handover vacant and peaceful possession of the suit premises. It constrained the Appellant to file the Regular Civil Suit No.247 of 1998. 4. The Respondents – original defendants appeared before the trial Court and filed their written statement and resisted the suit. It was the contention of the Respondents that their grand father – Maruti Pawar was resident of Morshevadi. His elder daughter Chandrabhaga @ Sakhubai @ Kakubai was given in marriage to Appellant’s father Sadashiv Haibatrao Patole. Due to said reason around 1938-39, Maruti Pawar started residing at Dhule with Sadashiv Haibatrao Patole. At that time Appellant’s father 4 Sadashiv Patole gave East-West 24 feet and South-North 74 feet open space to the Respondents’ grand father Maruti Pawar for his residence. Thereafter, Maruti Pawar constructed house over said open place. Since then, he was residing there till his death. After his death, his sons were residing therein. The Respondents further stated that Appellant is not owner of the suit property and therefore he has no right to call upon the Respondents to vacate and handover vacant possession of the suit premises at all. 5. On the basis of rival contentions between both the parties, the trial Court framed following Issues in Regular Civil Suit No.247 of 1998: ISSUES FINDINGS 1) whether plaintiff proved that he is owner of suit property? In the negative. 2) Whether he proved that defendants and their father were residing in suit property with plaintiff’s consent on leave and license basis on condition of vacating suit premises after plaintiff’s son became major? In the negative. 5 3) Whether he proved that defendants avoided to handover possession of suit premises to him inspite of repeated demands? Not survive. 4) Whether defendants proved that they became owner of suit property by way of adverse possession? Not survive. 5) Whether suit is within limitation? Not survive. 6) Whether suit is bad for non joinder of necessary parties? Not survive. 7) Whether suit is bad for want of notice under section 303 and 304 of M.M. Act? In the affirmative. 8) Whether plaintiff is entitled to reliefs claimed? In the negative. 9) What order? As per final order. 6. The trial Court after hearing both the sides, held that Appellant not produced a single document to show that he is owner of the suit 6 premises. The trial Court further held that the Appellant failed to produce even city survey record or municipal record of the suit property to show that he is owner of the suit property. The trial Court further held that even the Appellant has not disclosed Survey number or Gat number if any, of the suit property. The trial Court examined Exhibit 61, 64 and 65 produced by the Appellant in support of his contention about the ownership of the suit property. After considering Exhibit 61, 64 and 65, the trial Court held that these three documents are not in support of the averments made by the Appellant in his Plaint. The trial Court further held that the evidence produced by the Appellant is contradictory to his own pleadings. 7. Mr. Nandode, learned counsel appearing on behalf of the Appellant produced the Paper Book in Civil Appeal No.42 of 2007, in which the Lower Appellate Court has passed the impugned Judgment and decree of present Second Appeal. With the assistance of learned counsel for the Appellant, I have gone through the Plaint, written statement and evidence adduced by both the parties before the trial Court. It 7 is clear from the evidence of PW1 i.e. Prabhakar Sadashiv Patole – Appellant, that he failed to produce any documentary evidence to show that he is owner of the suit property. In para 5 of his evidence, Appellant stated that he paid municipal taxes for the year 1989-90, 1991-992, 1993-94, 1994-95, 1995-96, 1997-98, 2001-02, 2003-04 and 2005-06. Except these receipts, the Appellant failed to produce any cogent evidence to show that he is owner of the suit property. The Appellant in support of his case, examined one witness as PW2. His evidence is at Exhibit 55. In his evidence, the witness stated that the out of final plot No.164, Plot No.3 in which the structure is standing, is belonging to the Appellant as he received the same by succession. Except the bare statement of this witness, there is no documentary proof on record to show that the Appellant is the owner of the suit property. Therefore, the trial Court held that the Appellant failed to prove his ownership over the suit premises and therefore he is not entitled to decree for possession. As the Appellant failed to produce any cogent evidence; to show his ownership over the suit property, the other issues 8 were held against Appellant. 8. Being aggrieved by the Judgment and decree dated 2nd September, 2006 passed by 3rd Joint Civil Judge, Junior Division, Dhule, the Appellant preferred Civil Appeal No.42 of 2007 which also came to be dismissed mainly on the ground that Appellant - original plaintiff failed to prove the ownership in respect of suit premises. 9. Learned counsel for the Appellant submitted that both the Courts below failed to appreciate that defendants failed to produce any evidence to show that they are owner of the suit premises. Learned counsel for the Appellant submitted that both the Courts below wrongly saddled the burden of proof on the shoulder of the Appellant regarding his title. He submitted that the Respondent - original defendant in his evidence claimed the adverse possession against Appellant, therefore, it is to be presumed that the Appellant is the owner of the suit premises. He further submitted that both the Courts below committed jurisdictional error due to lapse of non framing of point for 9 consideration as mandated by Order 41 Rule 31 of the Code of Civil Procedure and non consideration of vital aspects which affects valuable proprietary rights of the parties. 10. Learned counsel for the Appellant in support of his submission about onus of burden about title, relied on the Apex Court Judgment in the matter of R.V.E. Venkatchala Gounder vs. Arulmigu Vishwesaraswami & V.P. Temple and another, reported in 2003 S.A.R. (Civil), Page 929. In this case the Apex Court held that in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. Para 29 of this Judgment reads as under: "29. In a suit for recovery of possession based on title it is for the plaintiff to prove his 10 title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. However, as held in A. Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's case." 11. I have carefully gone through the Apex Court 11 Judgment. In any case, this Authority is not applicable in the present case on the facts and circumstances as narrated by the Appellant which are altogether different. In the present case, the Appellant himself failed to produce even a single document to show that he is owner of the suit property. As Appellant failed to adduce any cogent oral evidence and/or documentary evidence to show that he is owner of the suit property, he is not entitled to a decree for possession against the Respondents. 12. The learned counsel appearing on behalf of the Appellant submitted that both the Courts failed to consider that Appellant produced sufficient evidence on record to show that the suit property is in his possession and he is owner of the suit property. He submitted that revenue record i.e. receipt for payment of taxes produced by Appellant at Exhibit 52, 53, 55, 63, 64 and 65 clearly shows that the Appellant is in possession of the suit property as owner. In support of his contention, learned counsel for the Appellant relied on the Judgment in the matter of Dada Bhagwan Shinde and another vs. Tulsabai w/o Narayan Shinde and 12 another, reported in 2008 (3) Mh. L.J. Page 475. It is held in this case that though the mutation in record of rights does not create any right, title, or interest, however, it has presumptive value under section 157 of the Maharashtra Land Revenue Code, 1966. Learned counsel for the Appellant also relied on the Judgment in the matter of Mahila Bajrangi (Dead) Through LRs and others vs. Badribai w/o Jagannath and another, reported in (2003) 2 Supreme Court Cases, Page 464. The Apex Court in this matter, held that entries made in land record under the Code are to be presumed correct only till proved otherwise. In my opinion, both the Authorities are not applicable in the present case on facts and circumstances of this case. In the present case the Appellant relied on receipts issued by Municipal Corporation for payment of house taxes. In any case, these receipts which are at Exhibit 52, 53, 55, 63, 64 and 65 can not establish any possession and/or title of the Appellant over the suit property. 13. In respect of the first contention of the learned counsel for the Appellant about the ownership 13 of the property, it is to be noted that both the Courts concurrently held that Appellant failed to adduce any documentary evidence to show that he is owner of the suit property. In the present case, learned counsel for the Appellant produced the Paper Book in Civil Appeal No.42 of 2007 and with his assistance, I have gone through the same. It is clear from the Plaint as well as Appellant's evidence at Exhibit 53 that Appellant failed to produce a single document to prove his ownership over the suit premises. Though the Municipal Corporation, Dhule was made party in the present case, the Appellant failed to call documents from Municipal Corporation, Dhule to prove his ownership over the suit premises. Therefore, both the Courts below rightly held that Appellant failed to adduce any cogent evidence to show that he is owner of the suit premises. It is well settled that when the defendant succeeds in proving that he has been possessing the suit property for a number of years adversely to the plaintiff, who could not adduce any credible evidence in support of his title, the suit for declaration of title and recovery of possession is liable to be dismissed. In a suit for 14 declaration based on title, the initial burden is on the plaintiff to prove his title. In the present case the Respondents stated in their written statement that for last more than 50 to 60 years, they are residing in the suit premises. As the Appellant failed to discharge his burden about establishing the title over the suit premises, there is no question of passing any decree in his favour. 14. The other submission made by learned counsel for the Appellant that the Appellate Court committed jurisdictional error due to non framing of the points for consideration as mandated by Order 41 Rule 31 of the Code of Civil Procedure and non consideration of the vital aspect which affects the valuable proprietary rights of the parties. In the present case, the Appellate Court raised following three Points on the submission made by the Appellant: POINTS FINDINGS 1) Whether the plaintiff prove that he is owner of the suit property? Not proved. 15 2) Whether the impugned judgment and decree requires interference by this Court? No. 3) What order? See order below. 15. The learned counsel appearing on behalf of the Appellants submitted that the First Appellate Court committed jurisdictional error due to lapse of non framing of point for consideration as mandated by Order 41 Rule 31 of the Code of Civil Procedure and non consideration of vital aspects which affecting the valuable proprietary rights of the parties. In the present case, the trial Court framed in all 9 issues on the point of ownership, possession of Respondent, refusal on the part of the Respondent to handover vacant and peaceful possession of the suit premises, whether suit is within limitation, whether suit is bad for non joinder of necessary parties, whether suit is bad for want of notice under Section 303 and 304 of M. M. Act. As the Appellant failed to prove his ownership in respect of the suit property, the trial Court held 16 that, it is not necessary to consider the subsequent issues which depends upon Appellant's title to the suit property. Therefore, it cannot be held that the trial Court failed to frame material issues at the time of considering the Appellant's case for final hearing. Learned counsel for the Appellant relied on the Judgment in the matter of Rajiv Bhalchandra Gundewar vs. Crompton Greaves Ltd. reported in [2000 (2) Bom. L.C. 5 (Bom.)]. In this case the Bombay High Court held that the decision of all issues simultaneously shall definitely curtail unnecessary delay in final disposal of the matter. After going through the said Authority, in my opinion, the said Authority is not applicable in the facts and circumstances of the present case. In the present case, the Appellant filed Regular Civil Suit No.247 of 1998 for possession on the ground that he is owner of the suit property and therefore he is entitled decree for eviction against the Respondents. As the Appellant failed to prove the first material issue about his ownership, the trial Court held that it is not necessary to answer the subsequent issues which are mainly based on the title of the Appellant in respect 17 of the suit property. In similar way the first appellate Court framed point for determination as reproduced herein above. The first appellate Court also held that as the Appellant failed to prove that he is owner of the suit property, it is not necessary to interfere in the Judgment and decree passed by the trial Court. In view of the above mentioned facts and circumstances, it cannot be said that the Courts below committed jurisdictional error due to lapse of non framing of point for consideration as mandated by Order 41 of Rule 31 of the Code of Civil Procedure. 16. Order 41 Rule 31 of the Code of Civil Procedure details the necessary contents of the proper Judgment. But it cannot be deemed to be a contravention of the Rule, if on a reading of a Judgment it is seen that the points for decision were before the Court and the reasons for the findings have been given. Therefore, non formulation of the point for decision by itself does not vitiate the Judgment. If the Appellate Court has considered all aspects of the question and reasons also given for the decision, then failure of proper framing of question cannot 18 vitiate the Judgment. 17. The issue raised by the first appellate Court is in respect of ownership of the Appellant over the suit property. As the Appellant failed to adduce any cogent evidence either documentary or oral to prove that he is owner of the suit premises, both the Courts below have held against him. There is no other question of law, leave apart substantial, is raised in this Appeal. Hence I do not find any substance in this Second Appeal and hence the Appeal is dismissed summarily. (K.K. TATED), JUDGE. asb/JUN09/sa387.09