1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.398 OF 1990 Date of decision: 7/7/2009 For approval and signature: HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see the fair copy of the Judgment ? /No 4. Whether this case involves a substantial /No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.Paralikar) Private Secretary office/sa398-90 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.398 of 1990 Smt. Hausabai w/o Limbaji Padwalkar, aged 62 years, occupation household, r/o Ter, Taluka and Dist. Osmanabad. ...APPELLANT ORIGINAL PLAINTIFF VERSUS 1. Chander Babaji Pandhare, Aged 46 years, Occ. Agri., r/o Ter, Tal. & Dist. Osmanabad. 2. Atmaram Gundiba Chougule, aged 55 years, occ. And r/o as above. 3. Sarubai w/o Kedari Kachare, aged 65 years, occ. Household, r/o as above. ...RESPONDENTS (Ori.Defendants) Mr.Sandeep Gorde Patil, Adv., for appellant. Mr. P.B.Rakhunde, Adv., h/f Mr. S.B.Bhapkar, Adv., for respondent nos. 1 to 3. ... CORAM: K.U.CHANDIWAL,J. DATE: 7/7/2009 ... ORAL JUDGMENT : 1. Aggrieved plaintiff, owing to the orders 3 in Regular Civil Appeal No.149/1983, allowing the appeal of the original defendant and reversing the judgment and decree dt.30th July, 1983, in RCS No.126/1978, is in Second Appeal. 2. The appeal was admitted on 21st Jan., 1991, by formulating following grounds as substantial questions of law between the parties: “D) That the suit was in respect of the house in question bearing No.1-9-19/1 admeasuring 51 hands x 51 hands within the boundaries specified in the plaint. The Respondents admitted the ownership of Appellant and possession to the said house bearing No.1-9-19/1. The Respondents claimed that an area of 13-1/2 x 82-1/2 feet shown in Red colour in the sketch annexed with the plaint was not of the Appellant. The respondents admitted the ownership of the Appellant and possession in respect of the rest of the area. It was therefore, apparently illegally to dismiss the entire suit. This is a substantial question of law. (E) That the substantial question of law is as to whether the dismissal of the suit inspite of admission of the Respondents is legal. (G) That the substantial question of law in the present case is as to whether the sale deed executed on 16.1.1950 in favour of Limbaji, the husband of the Appellant by Dagdu s/o Shivling Shete and Krishnabai w/o Shivling Shete could be used for collateral purposes i.e. For determining the nature of possession of purchaser 4 Limbaji and thereafter the Appellant- plaintiff. (I) That the trial Court had specifically held that the sale deed dated 7/1/1972 which is tried to be got corrected on 26.6.72, executed by the defendant No.3 in favour of defendant No. 1 and the sale deed dated 2.10.1973 executed by defendant no.1 in favour of defendant no.2 did not transfer any right, title or interest in favour of the defendant No.1 and/or defendant no.2. Similar finding was also recorded in respect of the collusive decree secured in R.C.S. No.50 of 1977 in favour of the defendant no.2. The trial Court therefore, correctly held that neither the sale deed not the decree could affect the right, title and interest or the possession of the Appellant. The learned Addl. District Judge has committed a grave error in ignoring the above finding and the fact that the sale deeds referred to above and the decree, in fact, was a colourable device and that they were never acted upon. In fact they were procured to create false evidence and as such could not affect the right, title or interest of the Appellant. (M) That the Appellant and her husband were admittedly in possession of the disputed property since 1950 by virtue of the sale deed, though unregistered. Their possession admittedly was in their own right and title of the Appellant itself perfected at the time when the suit was filed by virtue of their open, continuous, uninterrupted possession. At the time of evidence, the sale deed dated 16.1.1950 exhibited at Exh.93 was more than (30) years old. It was, therefore, clearly wrong to refuse decree in favour of the Appellant 5 as sought for. N) That the Appellant had affirmed that she was in possession. Her possession was confirmed by the report of the Commissioner. The trial Court by its order dated 4th January, 1979, upheld the possession of the Appellant. The finding of possession recorded by the trial Court was also upheld in Misc. Civil Appeal No.7 of 1979 by judgment and order dated 21st of June, 1980. The appellant’s possession is also recorded in the Survey record and the Sanad. The Gram Panchayat record including the Property Tax Register as well as the payment of the taxes also established the Appellant’s possession. One of the vendors of the Appellant by name Dagdu, produced as PW 2 and others namely PW 3 Vishwanath as well as P.W.4 Nazir Ahmed and P.W.5 Durugkar, Advocate have stated on oath that the Appellant was in exclusive possession. Even Respondent No.3 Sarubai and the Respondent No.2 Atmaram have also admitted the possession of the Appellant over the property in question. In this view of the matter, it was absolutely wrong to disturb the finding of fact recorded by the trial court. The judgment and decree under appeal passed by the learned Addl. District Judge thus being perverse requires to be set aside. (O) That the substantial question of law is as to whether the first appellate Court in the facts and circumstances of the present case, could disturb the finding of fact recorded by the trial court inspite of admissions by Respondents. (Q) That the learned Addl. District Judge was wrong in holding that the 6 Appellant had not proved adverse possession within the meaning of Article 65 read with Section 27 of the Limitation Act. “ 3. The controversy between the parties revolves to the property which has the Gram Panchay at Nos.1-9-19/1 and also 1-9-19/2. The plaintiff/appellant stakes claim based on an unregistered sale deed purportedly executed by erstwhile vendors Dagdu and his mother Krishnabai. It was expected of the plaintiff to have given detailed description of the property for which declaration was sought. Unfortunately, no such details are referred in the plaint. Based on such vague pleadings, it was practically impossible to entertain the suit, to exercise discretion in favour of the plaintiff. 4. The second impediment which the plaintiff faced was the unregistered sale deed executed by Krishnabai and her son Dagdu tendered at Exh.93. The learned Judge of the Court of first instance recorded presumptive value to the sale deed oblivious to the fact that it was not completing the required 30 years period mandated under Section 90 of the Evidence Act. Consequently, it was expected of the plaintiff to establish her title to the property. As stated above, the plaintiff could not establish the title. The unregistered sale deed executed by 7 Dagadu and his mother, would not divest any title in favour of the plaintiff and further get a decree of ownership of title from the Court. If Dagadu or his mother had the title, nobody prevented them, as Dagadu is examined, to get such Kabala ( title document) placed on record. However, no such title document of Krishnabai, mother of Dagadu, is tendered in the evidence. Dagadu accepts, the property was not of Krishnabai but it has come from mother. No old receipts are produced by Dagadu to show that Krishnabai had perfected title to divest in favour of plaintiffs husband. 5. It is in the evidence that the Gram Panchayat in village Ter had the details of the property recorded somewhere in the year 1952. If this is so, naturally, the property, to which the plaintiff is staking claim, should have its reference and reverence also to the measurement, befitting to the unregistered sale deed. Startling position in the matter is, the plaintiff’s husband’s name appeared in the property having Gram Panchayat No.1-9-19/1 with assessment of Rs.925/- while the house Gram Panchayat No.1-9-19/2 stands in the name of Sarubai w/o Kedari Kachare, defendant no.3 way back in the year 1956 -1957. There is no explanation from the plaintiff as to how she could have staked right in the property house no. 8 1-9-19/2 which, way back in the year 1956, was recorded in the name of defendant no.3. It is defendant no.3, who has subsequently divested title in favour of defendant no.1 by registered sale deed and also subsequent correction deed. 6. The court found evidence of Subhashchandra, DW No.1, Sarubai, DW 2, Atmaram, DW 3, Prabhakar, DW 4 and tax receipts from the year 1967 to 1978-79 were of house Gram Panchayat No.1/9/19/2 at Exhs. 41 and 42. These receipts, undoubtedly, were not in the name of plaintiff. Whatever record the plaintiff has produced like survey settlement record or tax payment receipts at Exh.129 to 131 or the Sanad, it remotely connects to the Gram Panchayat house No.1-9-19/2. The record of the plaintiff goes to show that it relates to Gram Panchayat House No.1-9-19/1. In this situation of the matter, it is difficult to digest that the plaintiff has any title either by virtue of unregistered sale deed (Exh.93) or by virtue of so called adverse possession as such theory has been propounded during the course of submissions. 7. The evidence of Sarubai or Dagadu, could not be stated to have provided any acceleration to establish contentions propounded by the plaintiff. There is no fatal admission from Sarubai or from Subhashchandra to accept that 9 they have admitted plaintiffs possession or ownership to the disputed property. It is unfortunate that the Sanad produced on record at Exh.122 relating to CTS No.1270, Sheet No.2 in the name of plaintiff Hausabai is short of dimensions or area. Only scale is given with the scale 1:500. The next document is extract produced by the D.I.L.R., Osmanabad, showing land CTS No.1270 as barren and property 1234 as constructed. It is not clarified by the plaintiff that 1234 is from property to which she is staking claim or that the said property is put under obstruction by the defendants.No interference in the finding recorded by the learned first appellate Court is warranted. The plaintiff could not have sought declaration and injunction in respect of the house 1-9-19/2 as she has no locus standi to stake claim by way of declaration. It follows that staking declaration of cancellation of the sale deed in respect of the said house or getting a declaration concerning RCS No.50/1977 or proceedings in RD No.22/1978 will not be available to the plaintiff. The plaintiff has no concern with the house No.1-9-19/2 which unequivocally was in the name of defendant no.3 flowing since long i.e. At least from 1956 onwards. In the situation, finding recorded by the first appellate Court, setting aside the judgment and decree cannot be questioned on its legality, 10 propriety and it cannot be said that the first appellate Court was wrong in appreciation of the evidence. The grounds formulated, referred hereinabove, will have to be answered that the appellant has failed to prove the same. The grounds are accordingly answered. Second Appeal sans merit, and dismissed. No costs. Civil Applications disposed of. ( K.U.CHANDIWAL) JUDGE agp/sa398-90