1 S.A.656/1989 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.656 OF 1989: Shri.Shakil Fazal Madoo, Age about 39 years, Occupation: Service Residing at 63, Bhuskar Mohalla, Bhiwandi, Dist: Thane. .. Appellant V/s Mohamad Mustafa Mohammad Akbar deceased through his heirs:- 1. Smt.Sadika Mustafa Madoo, Age about 73 years, Occupation: Household, 2. Abdul Rehman Mustafa Madoo, Age about 47 years, Occupation: Business. 3. Miss Nasima Mustafa Madoo, Age about 30 years, Occupation : Household, All residing at House No.111, Saudagar Mohalla, Bhiwandi, District: Thane. .. Respondents Mr.Prathamesh Bhargude, Advocate for the Appellant. Mr.A.R.Shaikh, Advocate for the Respondents CORAM: R.G.KETKAR, J. DATE: 25th MARCH, 2011. JUDGMENT: 1. This second appeal is preferred by the original Defendant challenging the judgment and decree dated 29.9.1989 passed by the learned IXth 2 S.A.656/1989 Additional District and Sessions Judge, Thane, in Civil Appeal No. 286 of 1987. By that judgment, the learned District Judge partly allowed the appeal preferred by the Respondents-original plaintiffs and set aside the order of the trial Court and partly decreed the suit instituted by the Respondents. The learned District Judge declared that the Respondents are the owner and in possession of the house bearing Municipal House No.111 with Survey No.2696 and of the suit room described by the letters PQRS in the map attached to the plaint. The learned District Judge decreed the Respondents suit for declaration of the title of land bearing Survey No.2696 and directed the Appellant to deliver the possession of the suit room to the Respondents. The learned District Judge permanently restrained the Appellant-Defendant from disturbing the possession of the Respondents of the room described by letters PQRS by himself or through agents or by through any one on his behalf. The parties shall hereinafter be referred as per their status in the trial Court. 2. The second appeal was admitted on 18.12.1989 as it raises substantial question of law formulated in Ground Nos.1 & 2. The Ground Nos.1 & 2 read as under:- “1.The substantial question of law involved in this Appeal is that it was throughly wrong and illegal on the part of the learned 3 S.A.656/1989 Appellate Judge to reverse and set aside the Trial Court’s Judgment and Order, and to pass a decree for possession of the suit house situated on City Survey No.2697, when on Point No.3 i.e. “whether Plaintiffs are entitled for the declaration as prayed?”, it has specifically given a finding that the declaration that House NO. 111 is situated at City S.Nos.2696 cannot be granted and when the declaration in respect of title of City S.No.2697 is denied.” “2.The Appellate Court below completely lost sight of the legal position that once the declaration with respect to the title of City S.No.2697 is denied to the Plaintiffs, the Suit Room which is admittedly situated at City S.No.2697 can never belong to the Plaintiffs who himself has, in Plaint Paragraph No.8 pleaded that House No.111 which belongs to the Plaintiffs is situated at S.Nos. 2696 & 2697.” 3. The Plaintiffs have preferred cross-objections against the judgment and decree passed by the learned District Judge as the suit was not decreed in its entirety. The cross-objections are filed on the ground that the learned District Judge ought to have declared that the land bearing Survey No.2697 below House No.111 is of the ownership of the plaintiffs as they are in possession of the said portion of the land since last more than 50 years. 4. On 4.11.1982 the plaintiffs instituted Suit No.583 of 1982 for a declaration that the plaintiffs are the owners of House No.111, Saudagar Mohalla, Bhiwandi, situate on Survey Nos.2696 & 2697 and for a declaration that the Defendant has no right title or interest in respect of the room admeasuring 10ft x 12 ft. being the part of House 4 S.A.656/1989 No.111 and shown by the letters PQRS in the plan accompanied to the plaint (for short ‘suit room’). The Plaintiffs also prayed for direction to the Defendant to hand over vacant and peaceful possession of the suit room and for perpetual injunction restraining the Defendant from interfering with the possession of the plaintiffs in respect of the suit room or any part of House No.111. 5. The Plaintiff asserted that Shri.Mohammad Mustafa Mohammad Akbar, the original plaintiff and his cousin late Shri.Fazal, each owned one house, both situate in Survey Nos.2696 and 2697. The house belonging to Shri.Fazal was given House No.109 by Bhiwandi Nizampur Municipal Council (for short “Council”). The house owned by the Plaintiffs was given House No.111. It is the case of the plaintiffs that the House No.109 lies on the northern side and House No.111 lies on the southern side and in between the two houses there is open galli (lane) admeasuring 4ft on the eastern side, 10ft on the western north south and about 40 ft east-west on both sides. The privy of the house No.109 standing on the eastern boundary of Survey No.2697 also belongs to the House No.109. The lane between the House No.109 and 111 was and is common lane between the two houses. Municipal House No.109 is shown by letters ABCD and 5 S.A.656/1989 Municipal House No.111 is shown by letters EFGH in the map attached with the plaint. 6. On 20.5.1949 the father of the Defendant Shri.Fazal sold his House No.109 alongwith the privy and open space to one Shri.Abdul Hamidlal Mohammad Momin. Alongwith the plaint, the plaintiffs produced the copy of the Plan, which accompanied the sale deed dated 20.5.1949. It was asserted that the property which was sold by Shri.Fazal also accompanied the plan of the House as well as the land beneath and around it which was conveyed by Shri.Fazal. In Paragraph No.6A it was further asserted that the said Fazal sold his entire property and interest in House No.109 which he had received by virtue of partition effected pursuant to decree passed in R.C.S.No.47 of 1941. The plaintiffs further asserted that the suit room as shown by the letters PQRS was in possession of tenant one Shri.Shiraz Ahmad Amzad Ali. He instituted the Regular Civil Suit No.72 of 1973 against the said Shiraz and obtained vacant possession and got it vacated by the original plaintiff Mohammad Mustafa. 7. It was further asserted that after the sale of House No.109 and the property with land under and around it, said Fazal and/or his heirs have no right, title and interest in the property. The plaintiffs asserted 6 S.A.656/1989 that the House No.111 is situate on Survey Nos.2696 and 2697 in the manner shown in the plan given by City Survey Office, Bhivandi, which accompanied the plaint. The House No.111 consists ground floor and first floor, and in all there are 12 rooms, out of which 4 rooms are on the first floor and 8 rooms are on the ground floor. In February, 1982 the Defendant illegally and forcibly entered into one of the rooms on the northern side and put his lock on the suit room. The plaintiffs approached the police for taking action against the Defendant. The Defendant produced some documents from the Council showing existence of House No.109A of which he was the owner. The Plaintiffs contended that the Defendant had fabricated evidence by showing that he is the owner of House No.109A. Since no congnizance was taken by the police, the original plaintiff made an application to the Council on 5.2.1982. By communication dated 16.2.1982 the Council informed that the Municipal House No.109A in the name of Defendant did not exist. Again the plaintiffs approached the police and produced the letter received from the Council. Despite that the police did not take any steps and therefore the plaintiffs instituted present suit for the reliefs as more particularly referred earlier. 7 S.A.656/1989 8. The Defendant resisted the suit by filing written statement on 11.4.1983. He admitted that the original plaintiff Mohammad Mustafa and the late Fazal, each owned one house, Municipal House No.111 on City Survey No.2696 and Municipal House No.109 on City Survey No.2697, respectively. It was the case of the Defendant that Shri.Fazal sold part of the House No.109 alongwith the privy on City Survey No. 2697 admeasuring about 135 sq.yards to one Abdul Hamidlal Mohammad in the year 1949. Late Fazal had not sold the entire house No.109 to said Abdul Hamidlal Mohammad. The part of House No. 109 remained with said Fazal and after his death with the Defendant and other heirs. The Defendant denied that House No.111 is situate on Survey Nos.2696 and 2697 as alleged. 9. It was further asserted that the original plaintiff started claiming ownership of the part of House No.109 as there was no separate house number to the portion of House No.109 situate on C.T.S.2697. On 16.12.1981 the Defendant made an application to the Council to allot separate number to the portion of House No.109. The officers of the Council allotted House No.109A to the portion of House No.109 on 5.2.1982 after going through all the documents about the ownership of late Shri.Fazal Abdul Kadir. The plaintiff made an application on 8 S.A.656/1989 16.2.1982 for cancellation of that entry in respect of House No.109A. Without holding any enquiry, on the same day, the order was passed by the Council revoking the allotment of House No.109A. 10.In support of the plaintiffs case, the plaintiffs examined as many as 7 witnesses and the Defendant examined himself. The parties also led voluminous documentary evidence on record. On the basis of material on record, by the judgment and decree dated 2.5.1987 the learned IInd Joint Civil Judge, Junior Division, Bhivandi dismissed the suit. The learned trial Judge held that the plaintiffs failed to establish that the suit room exclusively belongs to them. He held that the plaintiffs failed to establish that the Defendant illegally and unauthorisedly occupied the suit room and consequently he held that the plaintiffs are not entitled to the declaration as prayed for, as also for vacant possession of the suit room. Consistent with these findings, the learned trial Judge held that the plaintiffs are not entitled to the permanent injunction against the Defendant. 11.Aggrieved by this decision, the plaintiffs preferred Civil Appeal No. 286 of 1987, and by the impugned judgment and decree the learned District Judge partly allowed the appeal as indicated in the earlier part of the judgment. It is against this judgment and decree, the original 9 S.A.656/1989 Defendant preferred the second appeal. The plaintiffs have filed the cross objections on 8.1.1990. 12.In support of this appeal, Mr.Prathamesh Bhargude, learned counsel for the appellant submitted that the learned District Judge was not justified in reversing the judgment of the trial Court, without applying his mind to the reasons given by the trial Court and without recording cogent and convincing reasons for disagreeing with the trial Court. The learned District Judge, in fact, has not recorded any reasons for disagreeing with the trial Court. He submitted that in the present case, the learned trial Judge visited the premises and came to the conclusion that the two properties are separate properties and that the House No. 109 is situate on Survey No.2697 and the House No.111 is situate on Survey No.2696, and that the suit room shown by letters PQRS is part of House No.109 which is on Survey No.2697 owned by the Defendant. He submitted that once the declaration of ownership of City Survey No.2697 is refused, the learned District Judge was not justified in directing the Defendant to hand over possession of the suit room, which, even according to the plaintiffs is situate on City Survey Nos.2696 and 2697. At any rate, the learned District Judge ignored admission given by the plaintiffs in his cross-examination that the suit 10 S.A.656/1989 room is part and parcel of House No.109. In support of this submission, he relied upon the judgments, reference to which will be made at an appropriate place. 13.On the other hand, Mr.A.R.Shaikh, learned counsel for the plaintiffs, while supporting the decree passed by the learned District Judge attacked the same decree, in so far as the refusal to grant declaration qua City Survey No.2697 by the learned District Judge. He submitted that the learned District Judge ought to have declared that the land of City Survey No.2697 below House No.111, is also of the ownership of the plaintiffs, as they are in possession of the said portion of the land since last more than 50 years. According to him, though the learned District Judge has declared that the suit room stands in Survey Nos. 2696 & 2697, still the learned District Judge committed error in dismissing the claim of the plaintiffs in respect of the City Survey No. 2697. Though the cross objections were filed on 8.1.1990 no order is passed admitting the cross objections by formulating the substantial question of law. I therefore admitted the cross objections and heard the learned counsel appearing for the parties on the following substantial question of law. “Whether the learned District Judge was justified in dismissing the 11 S.A.656/1989 plaintiffs’ suit for declaration of the title of the land bearing City Survey No.2697? 14.With the assistance of the learned counsel appearing for the parties, I have gone through the oral as well as the documentary evidence on record. In order to appreciate the controversy between the parties, the undisputed genealogy is reproduced herein-below. IMMAMUDDIN MADOO = IBRAHIM SHAIKH | SAHIB SHAIKH | | | No heirs ________________________________________________ | | | | Hussain Hassan Akbar Abdul Kadir | | Moh.Mustafa Fazal | | Abdul Raheman Shakeel (Plainiff-Respondent) (Defendant-Appellant) 15.From the above genealogy, it is evident that Ibrahim Shaikh Sahib Madoo was the brother of Imamuddin Madoo. On 29.1.1924 said Ibrahim purchased two properties viz.City Survey No.2697 admeasuring 275 sq.yards and having House No.36, as also the City Survey No.2696 admeasuring 145 sq.yards and having House No.37. Ibrahim died issue-less in the year 1925. The property was mutated in the name of Akbar, one of the sons of Imamuddin Madoo. In the year 1941, Regular Civil Suit No.47 of 1941 was filed by Hasan against 12 S.A.656/1989 Akbar and Abdul Kadir for partition and separate possession. Hasan, Akbar and Abdul Kadir are the sons of Imamuddin Madoo. The said suit was compromised in terms of the consent terms dated 29.1.1943 (Exh.116 in Modi script and translation at Exh.117). In terms of the consent terms, the City Survey No.2697 admeasuring 275 sq.yards and having the old House No.36 (new House No.109) thereon was allotted to Abdul Kadir, whereas, City Survey No.2696 admeasuring 145 sq.yards and having old House No.37 (new House No.111) thereon was allotted to Akbar. 16.On 5.1.1947 Abdul Kadir gifted City Survey No.2697 and the new House No.109 to his son Fazal (Exh.118 in Modi script and its translation at Exh.119). It is the case of the Defendant that on 20.5.1949, Fazal sold northern part of House No.109 admeasuring 130 sq.yards to Abdul Hamidlal Mohammad and therefore the balance 145 sq.yards from southern portion remained with Fazal. Pursuant to the transaction dated 20.5.1949 entire House No.109 was mutated in the name of Abdul Hamidlal Mohammad (Exh.124). On 16.2.1981 Defendant made an application that only part of the House No.109 alongwith privy on C.T.S.No.2697 admeasuring about 135 sq.yards was sold and requested the Council to allot new house number to the 13 S.A.656/1989 property retained by him. On 5.2.1982 Council assigned new House No.109A to the remaining 145 sq.yards (Exh.123). On 16.2.1982 the plaintiff raised objection and without any notice or opportunity of hearing, the objection raised by the plaintiff was upheld and the entry of House No.109A in favour of the Defendant was cancelled. On 23.2.1982 Defendant preferred appeal before the Collector 17.Now the crux of the matter is as to whether under the sale deed dated 20.5.1949 (Exh.49) Fazal had sold only the part of City Survey No. 2697 admeasuring 130 sq.yards or whether he had sold the entire Survey No.2697 together with House No.109 to Abdul Hamidlal Mohammad. The learned Trial Judge accepted the case of the Defendant and held that some northern portion of the Municipal House No.109 was sold by Fazal to Abdul Hamidlal Mohammad and at that time the remaining portion ought to have been given separate house number. However, it appears that the entire Municipal House No.109 was mutated in the name of Abdul Hamidlal Mohammad (Exh.124). The learned trial Judge visited the premises as also perused the sale deed dated 20.5.1949 alongwith the map and thereafter verified and calaculated the measurement of the land sold by the Defendant’s father Fazal to Abdul Hamidlal Mohammad. After considering the 14 S.A.656/1989 measurement mentioned in Exh.49, he came to the conclusion that what was sold by the Defendant’s father to Abdul Hamidlal Mohammad was about 130 sq.yards, and consequently, remaining 145 sq.yards remained with the Defendant. As against this, learned District Judge in Paragraph No.21 of the Judgment, recorded that on the perusal of the sale deed, it is seen that some of the portion of City Survey No.2697 alongwith the house was sold by Fazal, and it is the case of the Defendant that part of House No.109 was sold by Fazal. He observed that it is not clearly stated in the sale deed that particular portion of the said house was sold and particular portion remained with Fazal. It appears from the averments of the sale deed that Survey No.2697 and House No.109 was sold by Abdul Hamidlal Mohammad. 18.I have carefully gone through the sale deed dated 20.5.1949 at Exh.49. Perusal of that sale deed shows that under the Gift Deed dated 19.9.1946, the City Survey No.2697 admeasuring 275 sq.yards and House No.109 was gifted to him. After describing the city survey number and its area, the vendor Fazal described the property in the following terms: City Survey No.2697 having area of 275 sq.yards, out of this 15 S.A.656/1989 from norther side admeasures East-West 40ft, South-North from western side 24ft, South-North from eastern side 22ft, adjoining to this East-West 11ft and South-North 10ft, East-West from southern side 23ft, adjoining to this South-North 8ft and East-West 27ft wherein house is situate together with privy and bounded as under: East City Survey No.2698 West Road North City Survey No.2709 South City Survey No.2696 and part of City Survey No.2697 Northern portion of Municipal House No.109 as described above as land, building, open space, lane, shown in the enclosed plan together with the appurtenant and right of occupation thereof. 19.The learned trial Judge held that the Defendants did not sell entire property and on the basis of calculations made by him, came to the conclusion that what was sold by the Defendant was 130 sq.yards out of 275 sq.yards and therefore what was left with the Defendant was 145 sq.yards. The learned trial Judge also recorded that the entire property was mutated in the name of Abdul Hamidlal Mohammad vide.Exh.124. As against this the learned District Judge came to the conclusion in paragraph No.21 of the judgment that it is not clearly stated in the sale deed that particular portion of the said house was 16 S.A.656/1989 sold and particular portion remained with Fazal. It appears from the averments of the sale deed that the City Survey No.2697 and House No.109 was sold to Abdul Hamidlal Mohammad. 20.It is relevant to note that in the assessment year 1969-1970 (Exh.124) the Council mutated Survey No.2697 together with House No.109 in the name of said Abdul Hamidlal Mohammad. Nothing is brought on record by the Defendant that he ever objected the action of the Council in mutating Survey No.2697 together with House No.109 in the name of said Abdul. The Defendant has not brought on record payment of property taxes of City Survey No.2697 and House No.109A to the Council after assessment year 1969-70. The sale deed dated 20.5.1949 does not indicate any particular portion of the house remained with Fazal and its area. The Defendant also did not examine Abdul Hamidlal Mohammad to substantiate that portion of House No.109 and City Survey No.2697 remained with him after the sale. This is more so having regard to the plaintiffs assertions in Paragraph No.6A of the plaint where it was contended that Fazal sold entire property and interest in House No.109. The description of the property sold under the sale deed is indeed not happily worded. Considering the totality of the circumstances coupled with the conduct of the Defendant, in my 17 S.A.656/1989 judgment, the learned District Judge rightly came to the conclusion that City Survey No.2697 and House No.109 was sold by Fazal to Abdul Hamidlal Mohammad. 21. It is also material to note that for the first time on 16.2.1981 the Defendant made an application to the Council to allot some number to the portion of the House No.109 which remained with Fazal. On the basis of application dated 16.2.1981 the Council assigned new House No.109A to the remaining 145 sq.yards on 5.2.1982. Thus, from the year 1949 till 1981 there was no house bearing No.109A to any part of the House No.109. 22.The learned District Judge in the course of the judgment also considered that the plaintiff examined the tenants inducted by him. In particular, Shri. Siraz Ahmad, one of the tenants, against whom the plaintiff filed eviction suit and obtained decree, supported that the suit room shown by the letters PQRS was in his possession and he handed over possession to the plaintiff. The learned District Judge in Paragraph No.35 alternatively held that even if it is accepted that the father of the Defendants has not sold the entire portion of Survey No. 2697, even otherwise, there is evidence to indicate that House No.111 is partly in Survey No.2696 and partly in Survey No.2697 and there is 18 S.A.656/1989 no evidence to hold that the suit room is part and parcel of House No. 109A. 23.Mr.Prathamesh Bhargude relied upon the following judgments: (1) Jagdish Singh V/s.Madhuri Devi, (2008) 10 SCC 497, to contend that the three requisites should normally be present before the Appellate Court reverses the finding of the trial Court viz.(i) It applies its mind to the reasons given by the trial Court, (ii) It has no advantage of seeing and hearing of the witnesses and (iii) It records cogent and convincing reasons in disagreeing with the trial Court. (2) Santosh Hazari v/s.Purshottam Tiwari, (2001) 3 SCC 179, to contend that unless there are some special features about the evidence of particular witness which has escaped the trial Judges notice there is sufficient balance of incompatibility to discharge his opinion as to whether the credibility lie the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. (3)Madhukar Vishwanath V/s.Madhav, (1999) 9 SCC 446, to contend that the plaintiff should properly plead for declaration that the alienation was bad in law and the possession was only a consequential relief. If the suit is entertained, no decree for possession could have been passed, without first finding that the alienation was not for a legal 19 S.A.656/1989 necessity. 24.In the instant case, I have already indicated that the learned District Judge has reversed the finding of the trial Court by applying his mind to the reasons given by the trial Court. While disagreeing with the trial Court, the learned District Judge has recorded cogent and convincing reasons for disagreeing with the trial Court. The learned District Judge was perfectly justified in interfering with the finding of the trial Judge on a question of fact. The learned trial Judge did not properly consider the true effect of the sale deed dated 20.5.1949 (Exh.49). The learned trial Judge in fact had recorded that pursuant to the sale deed the entire property viz. C.T.S.No.2697 together with the House No.109 was mutated in the name of Shri.Abdul Hamidlal Mohammad vide Exh. 124. The learned trial Judge however failed to consider its implication. The learned District Judge took into account the conduct of the Defendant in approaching the Council