1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 408 OF 1991 FIRST APPEAL NO. 408 OF 1991 FIRST APPEAL NO. 408 OF 1991 Ramrao Rangnath Karambelkar, ) deceased through his heirs - ) 1-a) Smt. shakuntaladevi wd/o ) Ramrao Karambelkar, ) 1-b) Shri Santosh Ramrao Karambelkar ) 1-c) Mamta Ramrao Karambelkar ) 1-d) Bharati Ramrao Karambelkar ) 1-e) Amita Kaur(Formerly Karambelkar)) All residing at "Shriram Niwas" ) Opp. Tendulkar Wadi, Opp.Aarey ) Road, Goregaon (East) ) Mumbai - 400 063. ).. Appellants (Orig. Defendants) Versus Shree Tirthankar Company, ) a partnership firm carrying ) on business at Gogtewadi, Aarey Road, ) Goregaon (East), Bombay 400 063. )..Respondents 2 (Orig. Plaintiffs) Mr. B.G.Vaidya, Advocate, for the appellants. Mr. D.S.Sakhalkar, Advocate, for the respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. JUDGMENT RESERVED ON: 15.7.2008 JUDGMENT RESERVED ON: 15.7.2008 JUDGMENT RESERVED ON: 15.7.2008 JUDGMENT PRONOUNCED ON 13.8.2008 JUDGMENT PRONOUNCED ON 13.8.2008 JUDGMENT PRONOUNCED ON 13.8.2008 JUDGMENT JUDGMENT JUDGMENT 1. The defendants have preferred the present Appeal against the decree passed by the City Civil Court, Bombay in S.C. Suit No.2414 of 1977 whereby the plaintiff is declared owner of the suit land and defendants were directed to hand over possession of the same to the plaintiff with further direction to hold enquiry under Order XX Rule 12 of C.P.C. for mesne profits. 2. To state in brief, the plaintiff/respondent is a partnership firm. It claims to have purchased the land bearing City Survey Nos.185, 184 and 232 (part) of Sheet Nos.23 and 24 of Village Pahadi, Goregaon admeasuring 3 3734.43 sq. metrs.. equivalent to 4467 sq. yards from the earlier owners Byramjee Jeejeebhoy Pvt.Ltd. under a registered conveyance deed dated 6.7.1973. As there was some mistake in writing the city survey number of the property in the said Conveyance Deed, a Rectification Deed dated 21.10.1975 was executed and registered between the parties. Initially, the plaintiff filed the suit for perpetual injunction restraining the original defendant Ramrao Rangnath Karambelkar from causing any interference in possession of the plaintiff over the above referred property, being City Survey Nos.185, 184 and 232 (part). However, pending the suit, the said defendant had encroached upon and taken unlawful possession of the land City Survey No.232 (part) admeasuring about 1497 sq. yards, equivalent to 1251 sq. mtrs. Therefore, the plaintiff amended the suit and claimed possession of the said land from the defendants. For all purposes,the said land survey No.232 (part) is only suit property in dispute. There is no dispute about the remaining land being survey Nos.185 and 184 belonging to the plaintiff. The suit land is demarcated by green line in the map annexed to the plaint. 3. The original defendant - Ramrao contested the suit by filing written statement. He denied that the 4 plaintiff is a registered partnership firm, that the plaintiff had purchased the suit land from Byramjee Jeejeebhoy Pvt.Ltd. under a conveyance deed read with the Rectification deed. He also denied that he had encroached upon or had taken unlawful possession of the property of the plaintiff. He contended that whole land City Survey No.232 admeasuring about 5824 sq. yards equivalent to 4870.3 sq. mtrs. of Village Pahadi is owned by him. It includes the suit land which is approximately 14 gunthas. According to him, he and one Bhaskar Gothivarekar, who was in possession of 14 gunthas land as tenants of Byramjee Jeejeebhoy Pt.Ltd. since 1943-44 and due to enactment of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, the Tenancy Act), the defendant and said Bhaskar had become deemed purchasers of the said 14 gunthas land out of survey No.232. from 1.4.1957, i.e. the tillers day under the said Act and thus they had become owners of 14 gunthas of land. In view of this, he further contended that said Bhaskar Gothivarekar had executed a Will and had bequeathed whole of his property including his share in the agricultural land in favour of the defendant Ramrao. The defendant also obtained probate of the said Will in Petition No.395 of 1974 from the Bombay High Court. He also contended that the suit was barred by limitation. In view of this, he contended that he had become owner 5 of the complete land including the suit land after the death of Bhaskar Gothivarekar. Therefore, the suit is liable to be dismissed. 4. Pending the suit, the original defendant Ramrao died and his L.rs. being his widow and son were brought on record. They also filed written statement adopting the same defences which were taken by the defendant Ramrao. The present appellants are the L.rs. of said Ramrao. 5. Several issues were framed by the trial Court and after hearing oral and documentary evidence of both the parties, the trial Court came to conclusion that the plaintiff is a registered partnership firm. It is owner of the land City Survey Nos.185, 184 and 232 (part) on the basis of the Conveyance Deed read with the Rectification Deed executed by Byramjee Jeejeebhoy Pvt.Ltd. The trial Court also held that the defendant was a trespasser and in unauthorised occupation of the suit land. The contention of the defendant about his tenancy or about his title over the suit land came to be rejected. The contention of the defendant that the suit was barred by limitation was also rejected. In the result, the suit was decreed against the defendants. 6 6. Heard the learned Counsel for the parties. The learned Counsel for both the parties have extensively taken me to the oral and documentary evidence placed before the trial Court by both the parties. On behalf of the plaintiff two witnesses were examined. P.W.1 Ramswaroop Dwivedi, the Constituted Attorney deposed about the registration of the firm and the plaintiff also produced the two extracts from the Registrar of Firms, Exhibit "A" which clearly shows that the plaintiff was a registered partnership firm. 7. The learned counsel for the defendants/appellants vehemently contended that the suit property was under tenancy of the original defendant as well as Bhaskar Gothivarekar since 1943-44 and on the tillers’ day, they were in possession and therefore, under the provisions of the Tenancy Act, they were deemed to be purchasers of the suit land and they cannot be divested of that right. He further contended that Gothivarekar had purchased land survey No.74/2/2, which is now Gat No.232, under a registered conveyance deed dated 24.4.1943. As the defendant was carrying on business in partnership with said Bhaskar Gothivarekar, Bhaskar had sold half share in the said land to the defendant. Gothivarekar also executed a Will and thereby bequeathed whole of his property including the remaining half share in the land 7 Gat No.232 in favour of Bhaskar. According to him, as the probate has been issued in respect of that Will, Bhaskar has become owner of whole of the property belonging to Gothivarekar. With this contention, he contended that the plaintiff, who purchased the suit property from the previous owner Byramjee Jeejeebhoy Pvt. Ltd. could not get the title over the suit land because Byramjee Jeejeebhoy Pvt.Ltd. had itself lost its title on the suit land on the tillers’ day under the Tenancy Act. According to him, due to all these reasons, the suit of the plaintiff is liable to be dismissed and the impugned Judgment and decree are liable to be set aside. 8. The learned Counsel for the plaintiff-respondent vehemently contended that Bhaskar Gothivarekar had purchased only 27 gunthas of land bearing Survey No.74/2/2, which is now part of Gat No.232. Half of that land was purchased by the defendant and he became owner of remaining half on the basis of the Will executed by Gothivarekar. According to him, the defendant has failed to establish that the suit land was ever under tenancy rights of Bhaskar Gothivarekar or that he had become deemed purchaser of the suit land on the tillers’ day. According to him, the identity of the suit land has not been fixed as the land which was 8 allegedly under the tenancy of Bhaskar Gothivarekar. Further, he contended that as per the evidence led by the defendants before the trial Court, and the contents of the Will and the probate, it is clear that Bhaskar Gothivarekar had only bequeathed half share out of 27 gunthas land and not more than that and therefore by the said Will or the probate, the plaintiff cannot claim title or right of possession over the suit property. 9. Following points arise for my determination and I record my findings against them for the reasons given below:- POINTS POINTS POINTS FINDING FINDING FINDING (i) Whether the plaintiff proves Yes its title over the suit land ? (ii) Whether the defendant proves that No the defendant along with Bhaskar Gothivarekar or Bhaskar alone was tenant and had become deemed purchaser and owner of the suit land on the tillers day? (iii) Whether the defendant had become No owner of the suit property on the basis of the Will executed Bhaskar Gothivarekar ? 10. There is no dispute that the suit land which is part of Gat No.232 was previously owned by Byramjee Jeejeebhoy Pvt.Ltd. The plaintiff purchased land 9 admeasuring 3734.43 sq.mtrs. or 4467 sq. yards under a registered conveyance deed dated 6.7.1973 from Byramjee Jeejeebhoy Pvt. Ltd. In that conveyance deed, the property under sale was described in the First Schedule and it was described as City Survey No. 232 (part) and 184 (part). However, shortly after the execution of this conveyance deed, the parties noted that a mistake was committed in writing the survey number of the property in the conveyance deed and, therefore, a rectification deed Exhibit "C" dated 21.10.1975 was executed by Byramjee Jeejeebhoy Pvt.Ltd. in favour of the plaintiff and the property under sale was described as City Survey No. 185,184 and 232 (part) shown in Sheet Nos. 23 and 24 of Village Pahadi, Goregaon. There was no change in the area of the land or the boundaries. Rectification deed was also registered. On the basis of these two documents, the mutation entry No.1855 Exhibit "E" was taken. Previously, this land was recorded as a Talav or Tank adjoining survey Nos. 61, 73 and 74. On the basis of the above mutation entry, entry was also taken in the Record of Rights. Exhibit "F" is the copy of the 7 x 12 extract in that respect and shows possession of the plaintiff over the said Talav for the year 1973-74. Exhibit "G" is the map of the property which was purchased by the plaintiff. It shows that property shown as Talav or Tank was 10 consisting of City Survey No.185, 184 and part of City Survey No.282. The part of City Survey No.232, which is approximately 14 gunthas and which is said to be under encroachment of the defendants, is marked by green boundary in the Map. As stated earlier, even though initially the plaintiff had filed the suit for perpetual injunction in respect of whole of the land purchased by them, later on, the dispute was restricted only to the suit land which is Survey No.232 (part) within green boundary in the said Map Exhibit "G". There is no dispute about description of the property now. 11. Undoubtedly, the suit property was of Byramjee Jeejeebhoy Pvt.Ltd. It is the contention of the defendant that he and Bhaskar Gothivarekar were in possession of this land as tenants of Byramjee Jeejeebhoy Pvt.Ltd. since 1943-44 and on the tillers’ day they became owners of the property as deemed purchasers. However, the defendant could not produce any documentary or oral evidence to show that the defendant was ever in possession of any land of Byramjee Jeejeebhoy Pvt.Ltd. prior to or on the tillers’ day as a tenant. However, they have produced certain documentary evidence to show that Bhaskar Gothivarekar was the tenant of Byramjee Jeejeebhoy Pvt.Ltd. and now an attempt is being made that after the death of Bhaskar 11 Gothivarekar on the basis of the Will executed by him, the defendant had become owner of that property under dispute. Exhibit 6 is a bunch of rent receipts indicating that from 1943 to 1949, Bhaskar Gothivarekar had paid rent to Sir Byramjee Jeejeebhoy, who was said to be Khot for certain lands. It may be noted that 1.4.1957 was declared to be tillers day and the tenants in possession of land on the tillers’ day were deemed to be purchasers of the land under Section 32 of the Tenancy Act. The holders of the land were also given time to claim possession of the land if they had terminated the tenancy by issuing a valid notice prior to the tillers’ day. It appears that on behalf of Byramjee Jeejeebhoy Pvt.Ltd., Gagrat & Co., Solicitors, had issued a notice dated 26.2.1957 to Bhaskar Ramchandra Gothivarekar terminating the tenancy over the 14 gunthas of land which was shown as part of the tank and called upon said Bhaskar Gothivarekar to hand over possession on 31.3.1957.Byramjee Jeejeebhoy Pvt.Ltd. also filed tenancy cases against several tenants, including Bhaskar Gothivarekar. Exhibit 9 is the certified true copy of the order passed by the Additional Mamlatdar,Borivli, which reveals that notice issued by Byramjee Jeejeebhoy Pvt.Ltd.was not found to be valid under the law and, therefore, the applications for termination of tenancy and possession came to be 12 rejected. In view of this documentary evidence, one can safely hold that Bhaskar Gothivarekar was the tenant of Byramjee Jeejeebhoy in respect of 14 gunthas of land and he was in possession of the land even on the tillers’ day and in view of the provisions of Section 32 of the Tenancy act, he could be deemed to be purchaser. However, there is no material on record to show as to whether the price of the land was fixed and whether he had made payment and what happened to that land. 12. It is material to note that in the rent receipts Exhibit 6 as well as the notice Exhibit 7 or the application Exhibit 8 filed before the Mamlatdar or the order Exhibit 9 passed by the Mamlatdar, nowhere description of the property under the tenancy of Bhaskar Gothivarekar was given. The Solicitors’ notice Exhibit 7 however shows that the land in possession of Bhaskar Gothivarekar was atank land admeasuring 14 gunthas. It also does not give survey number or the boundaries of the said land. It is material to note that area of 4467 sq. yards is more than one acre. The learned Counsel for the plaintiff vehemently contended that it was necessary for the defendants to specifically prove that the suit land was the land under tenancy. According to him, if any other portion of the land was under tenancy, the defendants cannot succeed. No such evidence has 13 been led by the defendants to specify the area and boundaries of the land which was under tenancy of Bhaskar Gothivarekar. 13. It appears that the defendants in support of their claim that they are owners of the suit land produced certain record from the City Survey Office. This record consists of a leter Exhibit 12 dated 18.8.1971 from the City Survey Officer to the defendant Ramrao stating that in view of death of Bhaskar, his half share was also recorded in the name of the defendant and he was owner and Kabjedar of whole of City Survey No.232. The total area of the Survey No.232 was shown to be 4829 sq. mtrs. In the extract from the Property Register Card Exhibit 4, the City Survey No.232 was shown to be in four parts, being City Survey Nos.232A, 232B, 233C and 232D. Exhibits 1, 10, 11 and 13 are the documents of the City Survey record. All this record was prepared during 1971 to 1975. Even though Bhaskar was recorded as owner of City S.Nos. 232A, 232B, 232C and 232D admeasuring 4829 sq. mtrs. defendant could not be in possession of that much area even as per material with the defendant. Even as per the conveyance deed Exhibit 3 dated 24.4.1943, Bhaskar Gothivarekar had purchased Survey No.74/2/2 admeasuring 27 gunthas only from Vasudev Sakharam and admittedly, Gothivarekar had sold 14 half share from this land to Bhaskar and remaining half was bequeathed by him to Bhaskar and thus he became owner of only 27 gunthas land, and not more than that. Even if area of suit land is added to it, area could not be 4829 sq. mtrs. As per Ex.14 Nond Wahi, Chalta No.69 is shown to be Talav or tank land owned by Byramjee Jeejeebhoy Pvt.Ltd. That land was not bearing any survey number. Exhibit "D" is the old Map of the property bearing Survey Nos. 61, 74 and three Talavs or tanks. The lands of Tanks are shown as separate lands without any survey number. The tank marked by red lines in the map is the suit land. It is material to note that in the Conveyance Deed dated 24.4.1943 Exhibit 3 in favour of Bhaskar Gothivarekar in respect of Survey No.74/2/2, tothe north of that land is shown the tank land or Talav belonging to Byramjee Jeejeebhoy Pvt.Ltd. Not only this, to the eastern side, another tank of Byramjee Jeejeebhoy was shown. 14. As per 7/12 extract, Exhibit "N", Bhaskar Gothivarekar was shown to be in possession of land Survey No.74/2/2 admeasuring 27 gunthas in the year 1964-65 and this was shown to have been converted as non-agricultural land. Thus, the documentary evidence produced by the defendants reveal that Bhaskar Gothivarekar had purchased and was in possession of land 15 Survey No.74/2/2 admeasuring 27 gunthas from 1943 till 1964-65. However, it is an admitted fact that Bhaskar had sold his half share to the defendant and accordingly the defendant was owner of the half share. It may be noted that there is record, except City Survey record prepare during 1971-75, to show that he was in possession of the suit land. Mr. Sakhalkar, the learned Counsel for the plaintiff-respondent contended that the mutation of property in the revenue record neither creates nor extinguishes title to the property nor has any presumptive value of title. He finds support from the Supreme Court authority in Balwant Balwant Balwant Singh and another vs. Daulatsingh (1997) 7 SCC 137 Singh and another vs. Daulatsingh (1997) 7 SCC 137 Singh and another vs. Daulatsingh (1997) 7 SCC 137. In view of this legal position, merely because in the City Survey record, Bhaskar Ghotivarekar or the defendant Ramrao was shown in possession of complete Gat no.232A, 232B, 232C and 232D, it cannot be held that either of them had become owner of the said property. That record does not appear to be correct about the area as indicated earlier. 15. It is material to note that in an enquiry under Section 37(2) of the Bombay Land Revenue Code in respect of tank (Talav land), the Mamlatdar had by an order dated 27.1.1965 held that the said tank lands had vested in the Government. Against that order, Byramjee 16 Jeejeebhoy Pvt.Ltd. preferred Appeal LND No.4/1965.Exhibit "M" is the certified copy of the order passed by the District Deputy Collector on 31.5.1966 whereby the appeal was allowed and the order of Mamlatdar was set aside and it was declared that all the tank lands excepting the tank at Sr.No.1 vested in Byramjee Jeejeebhoy Pvt.Ltd. Thise Tank land is same, which was shown by the side of Survey Nos. 61, 73 and 74. This order is material and important because even though the defendant contended that he and Bhaskar Ghotivarekar were tenants and occupants of the suit land and were deemed purchasers from the tillers’ day i.e. 1.4.1957, as late as 27.1.1965, the Mamlatdar found that the tank land was vested in the Government. By setting aside that order, the District Deputy Collector held that the land vested in Byramjee Jeejeebhoy. This order rules out the contention of the defendant that this suit land or the tank land was under tenancy and that Bhaskar Ghotivarekar had become owner of the land under Section 32. 16. As pointed out earlier, even though the defendant contended that he was in possession of the suit land since 1943-44 as a tenant, there is no such material on record. From the admissions in the cros-examination of DW-1 Santosh, who is son of the defendant Ramrao, it 17 becomes clear that the defendants claimed the property on the basis of purchase of half share from Survey No.74/2/2 and remaining half share on the basis of the Will executed by the deceased Ramrao. Exhibit 5 is the probate granted by the Court in Petition No.395 of 1974 in favour of the defendant Ramrao Rangnath Karambelkar. It shows that Bhaskar Ghotivarekar had executed his last Will on 6.9.1969. After his death, on the petition filed by the defendant Ramrao, the probate was granted to him. As per this Will, as can be seen room the contents of the probate, Bhaskar Ghotivarekar had bequeathed his immovable and movable property in favour of Ramrao. DW-1 Santosh in the cross-examination admitted that whatever was given to his father under the Will had been in the Schedule of Assets and that Schedule reveals that Bhaskar had bequeathed his half share in the immovable property bearing Survey No.74 Hissa No.2 (part) admeasuring 3267 sq. yards. It also clearly shows that remaining half share was already belonging to Ramrao. The Schedule also reveals that on that plot, there were structures described as bungalow known as "Shriram Niwas", a tin shed, a temporary shed, a round hut,and an A.C. shed. All these structures were on the land Survey No.74 Hissa No.2 (part). There is no mention of any other immovable property in the said schedule. Other properties are cash, household 18 goods, share in the capital of the business and share in the goodwill of the business which Bhaskar and the defendant Ramrao were running in partnership. From this, it is clear that under the Will, the defendant got only half share of Bhaskar in the land Gat No.74 Hissa No.2 (part) admeasuring 3267 sq. yards. As remaining half share was already held by him, he became owner of the complete survey No.74 Hissa No.2 (part) admeausing 3267 sq. yards. From the admissions of DW-1 Santosh, it is clear that no other immovable property was received under the Will. There is no mention in the Will or in the schedule of the property to show that any land out of Gat No.232 and particularly the tank land belonging to Byramjee Jeejeebhoy Pvt.Ltd. was under the tenancy of Bhaskar or that he had become owner of that land and he had bequeathed that land also to defendant Ramrao. Taking into consideration all this material and particularly the admissions of DW-1 Santosh, it is clear that the defendant got the property of Bhaskar only under his Will and nothing more. Under the Will, he had not bequeathed the suit property which, according to the defendant, was owned by Bhaskar from the tillers’ day under the Tenancy Act. 17. The learned Counsel for the defendant-appellant contended that a tenant who has become deemed purchaser 19 under Section 32 of the Tenancy Act, can bequeath the property by Will and in support of this, he placed reliance upon the Judgment of this Court dated 9.12.2003 in Second Appeal No.468 of 1986 Narayan Mugu Teli vs. Second Appeal No.468 of 1986 Narayan Mugu Teli vs. Second Appeal No.468 of 1986 Narayan Mugu Teli vs. Ramcfhandra Mugu Teli and Ors. reported at Ramcfhandra Mugu Teli and Ors. reported at Ramcfhandra Mugu Teli and Ors. reported at MANU/MH/0960/2003 MANU/MH/0960/2003 MANU/MH/0960/2003, the decision of the Karnataka High Court in Writ Petition No.10571/1997 dated 21.10.2005 Writ Petition No.10571/1997 dated 21.10.2005 Writ Petition No.10571/1997 dated 21.10.2005 Sripad Ekanath Gaonkar vs. Assistant Commissioner, Sripad Ekanath Gaonkar vs. Assistant Commissioner, Sripad Ekanath Gaonkar vs. Assistant Commissioner, Kumta Division reported at MANU/KA/0622/2005. Kumta Division reported at MANU/KA/0622/2005. Kumta Division reported at MANU/KA/0622/2005.There can be no