1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.213 OF 2008 Shaikh Raphiuddin Amin .... Appellant Vs. Uttam Mahadev Gaikwad .... Respondent Mr.S.D. Thokade, Advocate for Appellant. Mr.B.G. Vaidya, Advocate for respondent. CORAM : Smt. R.P. SondurBaldota, J. Date : 4th December, 2009 P.C. : 1. This Second Appeal is preferred against the judgment and order dated 21st February 2007 passed by the District Court, Solapur. By the impugned judgment and order, the first appellate Court set aside the judgment and decree dated 29th April 1997 passed by the trial Court decreeing Regular Civil Suit No.43 of 1988 filed by the appellant and dismissing the counter claim of the respondent. 2. The facts leading to the present proceedings are as follows : The appellant filed the suit herein for injunction simplicitor claiming to be the owner of three plots of land being plot No.1 admeasuring 55 x 22 feet, plot no.2 2 admeasuring 25 x 19½ feet and plot no.3 admeasuring 20 x 16 feet and house no.57 situate thereon. He alleged that the respondent has been trying to disturb his possession and sought permanent injunction to restrain the respondent from disturbing his possession. The respondent filed his written statement disputing the claim of appellant of ownership in respect of plot no.2 alone. He contended that by the registered sale-deed dated 5th October 1959, he had become the owner of plot no.2 and has since been in possession thereof. He filed counter claim seeking relief of injunction against the appellant for protection of his possession of plot no.2. 3. The parties led evidence in support of their respective pleadings. The appellant had claimed that he had purchased three plots and the house situate thereon from the respondent by sale-deed date of the year 1964. The plaint does not even state the date of sale-deed and whether the same is registered. The appellant also failed to produce the sale- deed before the trial Court. He however claimed that in the year 1975, he had filed Regular Civil Suit No.19 of 1975 against one Babu Lohar, original owner of three plots of land for an injunction simplicitor to restrain Babu Lohar from disturbing his possession. He had prayed for an alternate relief in that suit that if he was found not to be in 3 possession of the property, he should be given possession of the same. The suit for injunction was decreed against Babu Lohar and the appellant claims to have received possession of the entire property in the execution of the decree. The appellant produced certified copy of the decree. He also produced city survey extract disclosing his name as the owner of the suit property. He produced one receipt for payment of tax at Exhibit 34. Based on these documents, he claimed to be the owner of the suit property and its possession. As against these documents, the respondent had produced registered sale- deed in his favour dated 5th October 1959 in respect of plot no.2. 4. The trial Court decreed the suit and dismissed the counter claim. Respondent preferred appeal to the District Court contending that the finding of the trial Court as regards ownership and possession of the suit property was erroneous and the trial Court had failed to appreciate that the respondent had produced registered sale-deed executed in his favour by Babu Lohar. The appeal Court observed that the appellant had failed to produce the documents of title in his favour being the sale-deed. The document of Gram Panchayat extract in respect of house no.57 or receipt for payment of any tax or extract of property card register not being the 4 documents of title could not establish the title of the appellant. Besides the sale-deed claimed to have been executed by Babu Lohar in favour of the appellant being the year 1964 is of the date subsequent to the document of title of the respondent, the sale-deed executed in respect of plot no.2 in favour of the respondent being of the year 1959. As regards the evidence of certified copy of the decree in other proceedings and the evidence of execution of the decree in those proceedings, the appeal court properly held the possession claimed thereunder is of a much subsequent date i.e. of the year 1983. 5. Mr.Vaidya, the learned counsel for respondent submits that it is obvious from the facts that the decree obtained by the appellant against the original owner Babu Lohar was a collusive decree. In any case, since the respondent was not a party to those proceedings, the same cannot be binding on the respondent. What is particularly absent from the evidence is the manner in which possession of the suit property came to be handed over to the appellant even by way of execution of the decree. Mr.Thokade, the learned counsel for the appellant admits that house no.57 is situate on plot no.1 and 3 and plot no.2 claimed by respondent is a vacant. It is thus seen that the appeal court has correctly appreciated the evidence before 5 it and arrived at the finding that the appellant has failed to establish that he is the owner of the suit property and in possession thereof. 6. Mr.Thokade,the learned counsel for the appellant submits that there are two substantial questions of law arising for consideration of this Court. He submits that the respondent ought to have valued the counter claim and paid the necessary court fees since the counter claim, as per the provisions of Code of Civil Procedure is required to be treated as independent proceedings. He also submits that the respondent ought to have preferred two separate appeals. One from the decree in the suit and the other from dismissal of the counter claim. A single appeal from two proceedings is not permissible. Hence, the impugned order suffers from legal infirmity. 7. Mr.Vaidya, the learned counsel for respondent on the other hand refers to Order 41, Rule 33, Code of Civil Procedure, the same reads as follows : “(33). Power of Court of Appeal .- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court 6 notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, [any may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]”. 8. In view of the above provision, I find no substance in the contention of the appellant; that there ought to have been two separate appeals filed by the respondent. In my opinion, there is no substantial question of law arising. Hence, the Second Appeal is dismissed. (Smt.R.P. SondurBaldota, J.)