( 1 ) S.A. 81/2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 81 OF 2006 1 Gazi Salauddin Ahmed s/o Murtuza Ahmed Ansari, Age : 47 years, Occu. Business, R/o Hamalwadi, Near holiday Camp, Aurangabad, Dist. Aurangabad. ...Appellant. (Original defendant No.1) Versus 1 Dr. Sudarshanrao Nmdeorao Lolge, Died through L.Rs. 1A Smt. Gopikabai w/o Sudarshan Lolge, Age : Major, Occu. Household. 1B Sandesh s/o Sudarshan lolge, Age : Major, Occu. Business, 1C Dinesh s/o Sudarshan Lolge, Age : Major, Occu. Business, 1D Rajesh s/o Sudarshan Lolge, Age : Major, Occu. Business. 1E Jitesh s/o Sudarshan Lolge, Age : Major, Occu. Business. All R/o Vamatnagar, Tq. Vasmatnagar, Dist. Hingoli. 2 Dr. Prakash Namdeoro Lolge, Deceased through his legal heirs. 2-A Dr. Sanjay s/o Prakash Lolge, Age : 36 years, Occu. Medical Practitioner, R/o Purna Tq. And Dist. Parbhani. 2-B Ajay s/o Prakash Lolge, Since deceased through L. Rs. ( 2 ) S.A. 81/2006 2-B-i Sou. Sangita w/o Ajay Lolge, Age : Major, Occu. Household, 2B-ii Akshay s/o Ajay Lolge, minor, Occu. Education. Both 2-Bi and 2-B-ii R/o Purna, Tq. And Dist. Parbhani. 2-C Smt. Mankarnika w/o Prakash Lolge, Age : 53 years, Occu. Household, R/o Purna, Tq. And Dist. Parbhani. 3 Subhash s/o Namdeorao Lolge, Age : 44 yers, Occu. Govt. Service, R/o Nanded, Dist. Nanded. 4 Chandrashekhar s/o Namdeoro Lolge, Age : 38 years, Occu. Agri. R/o Purna, Tq. and Dist. Parbhani. 5 Suhas s/o Namdeoro Lolge, Age : 33 years, Occu. Service, R/o “Mayur Bungalow”, Station Road, Opp. Goldi Theater, Rajnagar, Aurangabad Dist. Aurangabad. 6 Vikas s/o Namdeorao Lolge, Age : 28 years, Occu. R/o Nanded, Dist. Nanded. 7 Smt. Vanarshibai w/o Namdeorao Lolge, Age : 72 year, Occu. Househhold, R/o Nanded, Dist. Nanded. ....Respondents. (Original Plaintiffs) Mr. S.B. Talekar i/b. Mr. A.D. Shinde, Advocate for the appellant. Mr. D.V. Soman, Advocate for respondent Nos. 1A to 1E, 2A, 2B (i), 2B (ii), 2C and 3 to 6. CORAM : A.V. NIRGUDE, J. DATED : 07.09.2011 ( 3 ) S.A. 81/2006 ORAL ORDER :- 1. This Second Appeal is challenging the concurrent findings of the Courts below that the appellant/defendant had no title to the suit plot and that he had made encroachment on it sometime in 1981-1982 or so. 2. The facts leading to this litigation in short can be stated as under :- One Ansari was owner of this plot of land and adjoining land. Ansari had two wives, namely, Ashrafunnisabegum and Fatemabegum. Fatemabegum stayed at Aurangabad; whereas Ashrafunnisabegum stayed at Hyderabad. Both these wives had children from Ansari and these families resided respectively at Aurangabad and Hyderabad. Ansari died in 1957. He left behind various properties both at Hyderabad and Aurangabad. Prior to 1962 there occurred a litigation between the two widows. Fatemabegum filed suit for partition in the Civil Court at Hyderabad and enumerated properties situated at Hyderabad only and sought partition of the same. The parties arrived at a compromise and then decided that Fatemabegum would withdraw the suit and give up her claim in respect of “entire property left behind by Ansari” wherever it might be situated. In lieu thereof she received certain amount. She signed this compromise for herself and for her minor children. The learned counsel appearing for the appellant contended that Civil Court at Hyderabad could not have dealt with ( 4 ) S.A. 81/2006 the property which was not situated within its local jurisdiction and the properties were not subject matter of the suit. This objection is not relevant because Rule 3 of Order XXIII of C.P.C. specifically allows a compromise between the parties in respect of the properties which are not subject matter of the suit. 3. Admittedly, as said above, the suit plot and adjoining land belonging to Ansari and in view of this compromise, Fatemabegum relinquished her right to it. It appears that in 1963 i.e. soon after the compromise, Anisabegum, the daughter of Ansari and Ashrafunnisabegum came to Aurangabad and sold a large piece of land including the suit plot. The purchaser then divided the large plot into three plots and sold to various people. Ultimately, the suit plot -which was 1/3 of the large plot- was purchased by respondent’s father Namdeorao in 1974. In 1971 the appellant Salauddin who was son of Fatemabegum got his name entered as owner and possessor in respect of the suit plot in city survey. The city survey work was taken for the first time in that area. The respondents who are children of purchaser Namdeorao, filed this suit six years after Namdeorao’s death. The cause of action according to them arose in 1982 when they learnt that the appellant was making construction on the suit plot for the first time. It is their case that until then the plot was vacant. They, therefore, filed suit for declaration that the entries in the name of the appellant in the record should be declared null and for the possession of plot. ( 5 ) S.A. 81/2006 4. The appellant/defendant came up with a case that he was in possession of the suit plot since prior to 30 years from the date of the suit and that the suit plot as well as adjoining land sold by Anisabegum belonged to his branch of family, namely, Fatemabegum’s branch. The Courts below did not believe this defence and decreed the suit. 5. The learned advocate appearing for the appellant raised various points in his attempt to show that there existed substantive question of law. He said that the original sale-deed of 1963 executed by Anisabegum has not been proved and therefore the respondent/plaintiff would not be able to show their title. However, the Courts below held that by leading secondary evidence the respondents/plaintiffs have proved the sale-deed. 6. The learned Counsel for the appellant then submitted that assuming that due to the compromise in the suit of Hyderabad, Ashrafunnisabegum had acquired title to the suit plot yet the vendor Anisabegum had no authority to sell the property and so the respondent/plaintiff would not get valid title. This objection was rejected by the Courts below recording cogent reasons. They held that the appellant/defendant did not have any concern to the suit property and so he cannot raise such objection. 7. The learned Counsel for the appellant then pointed out that the Courts below did not appreciate evidence on question of limitation. He pointed out that the appellant/defendant clearly ( 6 ) S.A. 81/2006 raised the question of limitation. He said that he has led evidence that since 30 years since prior to the suit he was in possession of the suit property. According to him, this aspect of the case has not been appreciated properly. But, I am afraid, this is also not tenable. I found that there is ample evidence on record coming from the respondents/plaintiffs that the suit plot was vacant plot since 1981-82 and they also proved and they were believed by the Courts below when they said that for the first time in 1981-82 they saw the appellant/defendant making encroachment on the suit plot. In view of this, the suit would certainly be within limitation. 8. The next submission of the learned Counsel appearing for the appellant was that the appellant/defendant clearly raised the question of pecuniary jurisdiction of the Court in the written statement. But the learned Judge of the Trial Court did not frame the issue to that effect. He further pointed out that he has clearly mentioned in the written statement that the valuation of the suit property was purposely shown less so as to make the suit maintainable before the Civil Judge, Junior Division. Admittedly, the suit was registered as a Regular Civil Suit and was pending before the Civil Judge, Junior Division. According to the appellant’s Counsel, the issue of pecuniary jurisdiction was not decided by the trial Court and would give rise to substantial question of law. However, this objection to the pecuniary jurisdiction of the trial Court no longer remained relevant and it would certainly not result into failure of justice. ( 7 ) S.A. 81/2006 9. It so happened that though the appellant / defendant took objection to the pecuniary jurisdiction of the Court, in which the suit was initially filed on the ground that the suit is wrongly valued. He mentioned in the W.S. that the suit plot was worth more than Rs.1,50,000/- and if the suit is valued at Rs.1,50,000/-, it would be maintainable only in the Court of Civil Judge (Senior Division). Admittedly, though this question was raised by the appellant / defendant in the written statement, the learned judge of the trial Court did not frame issue as to whether the suit is properly valued. However, this became almost an irrelevant issue because during pendency of the suit, the same was transferred for disposal to a judge who was Civil Judge (Senior Division). The judgment of trial Court is delivered by him. So, substantial objection on the jurisdiction is diluted. The question still remained was that the trial Court did not examine the issue on valuation of the suit. However, it would not make much difference to the outcome of the suit assuming that the suit is wrongly valued and/or it is purposely undervalued. In that event at the most, the respondents / plaintiffs would have paid more Court fee. Section 21 of the Code of Civil Procedure is answer to the objection raised by the appellant’s counsel. It says that such an objection can be raised only if there is a consequent failure of justice. 10. The learned counsel for the appellant also tried to suggest that since for some time the suit was handled by the Civil Judge (Junior Division), he had committed errors in not framing proper issues. I am however, not inclined to accept this objection. ( 8 ) S.A. 81/2006 The issues were proper and the parties were given opportunity to lead the evidence. 11. The next objection raised by the appellant’s counsel is based on non-joinder of necessary party to the suit. The Courts below held that the plaintiff ought to have made the original owner a party to this suit. I am afraid, this was a wrong finding. The suit was not bad for non-joinder on such count. The suit was filed against the trespasser and the trespasser was made party. 12. The next objection is based on the contention that the original sale deed was not brought on record and the Courts below erred in admitting secondary evidence. This objection is also frivolous because this objection has no basis in the written statement. The respondent / plaintiff was under obligation to prove his title and he proved it through the sale deeds that were executed prior to his acquiring the property lastly. The appellant / defendant did not raise any objection to the genuineness of any sale deed. So, the certified copies of the sale deeds would have sufficed the purpose. 13. It must be noted lastly that though learned counsel appearing for the appellant placed reliance on various judgments and during the course of arguments, he read out parts of number of judgments of Supreme Court and High Court, I am afraid, I am unable to refer them because the question before me is whether the second appeal gives rise to any substantial question of law. Despite of hearing the submissions of the learned counsel ( 9 ) S.A. 81/2006 appearing for the appellant for quite long time, I am unable to notice any substantial question of law. ORDER The appeal stands dismissed. At the request of the appellant’ counsel, execution of the decree shall remain in abeyance for ten weeks from the date of signature on the judgment. [A.V. NIRGUDE, J.] ts k/2011/Sept11/sa81.06/ok