1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 448 OF 2010 Pradeep Shyamraoji Kapte Vs. Mohan Ramchandra Gautel & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri S. P. Kshirsagar Adv for appellant. Shri S. G. Karmarkar Adv for respondent. CORAM: .R. M. SAVANT J. Dated: 2 nd FEBRUARY, 2011. This appeal takes exception to the judgment and decree dated 24.06.2010 passed in Regular Civil Appeal No. 392 of 2008 by which the decree passed by the trial Court declaring the plaintiff i. e. the respondent no. 1 herein as the owner of the suit property came to be confirmed. The appellant herein is the original defendant in Regular Civil Suit No. 367 of 2006 filed by the respondent no.1/plaintiff for declaration, perpetual injunction and possession in respect of plot No. 61 situated at Kh. No. 184 Mouza Wanadongri, P. H. No. 46 admeasuring 1200 sq. ft. It was the case 2 of the plaintiff that the said property was purchased by him from the defendant nos. 3 and 4 by virtue of registered sale deed dated 12.08.1994. It was further the case of the plaintiff that since the area was undeveloped the plaintiff did not carry out any construction therein immediately. However, with the passage of time as the area started developing the plaintiff thought of developing the said plot sometime in the year 2006 but to his utter surprise found that defendant no.2 has made pucca construction over the suit property. The plaintiff made enquiries with the defendant no.1 as to how he had come to occupy the property in question but on his refusal to provide any information the plaintiff issued notice to him and thereafter filed the suit being Regular Civil Suit No. 367 of 2006. The defendant in his Written Statement denied the ownership of the plaintiff and contended that he has purchased the suit property by virtue of registered sale deed dated 24.02.1995 from Ramaji Selukar, Gautam Rahate and Shyamrao Kadav and that after obtaining the permission from Grampanchayat Wanadongri had made the construction. It was further his case that his name has been mutated in the record of rights and also he is regularly paying the taxes, the trial Court on the basis of the pleadings framed the relevant issues in so far as the present appeal is concerned. Issue no.1 and 2 which are to the following effect are relevant: 1] Whether the plaintiff proves that In the affirmative. he is the owner of suit plot? 3 2] Whether the plaintiff proves that the defendant encroached upon his suit plot? In the affirmative. Both the parties adduced evidence in support of their respective cases. The plaintiff relied upon the sale deed dated 12.08.1994 which was numbered as Ex. 36, the defendant relied upon the sale deed dated 24.02.1995 which was numbered as Ex. 43. Trial Court on the basis of the documentary as well as oral evidence decreed the suit and issued declaration in favour of the plaintiff that he is the owner of the suit property and that the defendant has encroached upon the same. The trial Court considered the fact that there was a variance in the property mentioned in the sale deed dated 20.08.1992 Ex. 50 by virtue of which the vendor of the defendants has purchased the property, and the property mentioned in the sale deed Ex. 36 of the plaintiff. The trial Court also took into consideration the fact that the plaintiff had purchased the plots in question from a housing society, which had sold the plots after preparing the layout. The trial Court also took into consideration the fact that the plaintiff’s sale deed was dated 08/08/1994 and was registered on 12.08.1994 whereas the sale deed of defendant no.1 was dated 09.03.1995. Being aggrieved by the decree passed by the trial Court the defendant no. 1 filed an appeal being Regular Civil Appeal No. 392 of 2008. The First Appellate Court on an appreciation of the evidence that was on 4 record confirmed the decree passed by the trial Court. The First Appellate Court observed that there was a variance in the Patwari Halka number between the documents of the plaintiff and the defendants. First Appellate Court also took into consideration the fact that the sale deed of the plaintiff was prior in point of time to that of the defendant no.1. Both the Courts below therefore have on the basis of the material on record concurrently recorded a finding of fact that the plaintiff has proved his ownership in respect of plot no.61 Patwari Halka No. 46 Kh. No. 184. Heard the learned counsel for the parties. It was contended on behalf of the appellant herein by Shri Kshirsagar learned counsel, that document Ex. 36 is the sale deed which has not been proved by the plaintiff in the manner contemplated by law. Learned counsel would contend that it was incumbent upon the plaintiff to examine the scribe or the attesting witnesses to the said document and merely because the document is exhibited it would not mean that the same is proved. Learned counsel to buttress his submission has relied upon the judgment of a Division Bench of this Court reported in A. I. R. 1973 Bombay 242 Ramkrishna Ganpat Futane and Others Vs. Mohammad Kasam and Others wherein the Division Bench of this Court held that a certificate of registration given under Section 60 of the Registration Act is not sufficient to prove the due execution of the document and when the execution of a document is denied proof as required by Section 67 of the Evidence Act 5 must be furnished. The learned counsel also relied upon the judgment of learned Single Judge of this Court reported in 2005(1) ALL MR 806 Manoramabai Amrutrao Deshmukh & Another Vs. Laxman Atmaram Kathale. The facts in the said case were as regards the interpretation of a document concerned therein. In my view the said judgments would have no application, considering the facts of the present case. Learned counsel would then contend that in view of the specific denial in Written Statement of the defendant, it was incumbent upon the plaintiffs to prove the said document. Learned counsel for respondent relied upon the judgment of the Apex Court reported in A. I. R. 2000 Supreme Court 2857 in the matter of Rosammal Issetheenammal Fernandez (Dead) by L.Rs. And others, Vs. Joosa Mariyan Fernandez and others. The facts involved in the said case also stand apart from the facts of the present case as in the said case the issue was regarding forgery and fraud. In the instant case the sale deed of the plaintiff is a registered document and therefore carries a presumption that it is validly executed. It is also required to be noted that a sale deed is not required by law to be attested. The defendants in the instant case had failed to rebut the presumption in favour of the plaintiff. Both the Courts below have recorded a finding that the property of the predecessor in title of the defendants is different than the property covered by the sale deed of the plaintiff. In the light of the concurrent findings recorded by the Courts 6 below , in my view the second appeal does not involve any substantial question of law; which s accordingly dismissed. However the Appellant i.e. defendant may not be evicted for a period of 4 weeks from today. JUDGE svk 7 8 9