1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 518 OF 1989 Shankar Maruti Kunkule since decd thru.his legal heirs 1. Vasant Shankar Kunkule 2. Rajaram Shankar Kunkule 3. Gulab Shankar Kunkule 4. Gajanan Shankar Kunkule 5. Mrs.Kamal Tukar Kunkule 6. Mrs.Rekha Madhav Shinde .....Appellants/ (Orig.Plaintiff) vs. 1. Gulab Ramchandra Mungashe 2. Shri.Sampat Ganpat Phanse ....Respondents/ (Orig.Defendants) ========= Mr.Bharat Joshi,Advocate for Appellants. Mr.P.B.Shah,Advocate for Respondents. Coram : Smt. R.P.SondurBaldota, J. Dated : 19th June 2009. P.C. :- 1. This Second Appeal takes exception to the judgment and order dated 27th February, 1989 passed by the District Court, Satara in Regular Civil Appeal No.202 of 1986. By the said judgment and order, the District Court modified the judgment and decree of the Trial court in Regular Civil Suit No.21 of 1979. The appellants are the heirs and legal representatives of the original plaintiff-Shankar. The respondents are the original defendants. 2. The substantial question of law for the consideration of which, 2 the present Second Appeal is admitted relates to correctness of interpretation placed on Exhibit-110 by the district court. 3. The suit as filed originally by Shankar was for permanent injunction simplicitor to restrain the respondents from disturbing his possession of the suit property. It was his claim in the plaint that by the document at Exhibit-110 he became the owner of the suit property consisting of a house with `teen khan tigai and saha khan sopa” alongwith the open space towards the eastern side, having purchased the same for consideration. After filing of the suit, Shankar had filed an application for interim injunction to protect his possession. That application was dismissed on the ground that he was not in possession of the suit property. He had carried the order further in appeal. However, he was unsuccessful in getting any relief of injunction. Later, he amended the plaint to add paras-2a, 4a and a prayer for possession therein. At para-2a, he alleged that on 4th January, 1979 the respondents broke open the lock on the suit property and took possession of the same. 4. The respondents in their written statement denied that Shankar was the owner of the entire suit property as described in the plaint. According to them, the suit property bearing Gram Panchayat House No. 35 consisted of total fifteen Khans. It was owned by Nana Mungashe. When he was in need of money, Nana sold a portion of the property consisting of nine kans to Maruti-his son-in-law. However, despite the sale-deed Maruti was never put in possession of the property sold to him. The property continued to be in possession of Bhagubai widow 3 of Nana during her lifetime and after her death, her daughter-Jagubai. The respondents contended that Bhagubai occupied the premises despite sale of portion of the property to Maruti and therefore became the owner of it by adverse possession. It has also been contended that the suit as filed for possession is barred by the law of limitation. At para-5 of the written statement, it is stated that Maruti had been demanding possession of the property in possession of Baghubai since the year 1946. After the death of Nana, Maruti had served three notices upon Jagubai demanding possession of the property. As regards forcible possession of the suit premises, the respondents denied the same. 5. Shankar did not examine himself in the suit. Instead he examined his son Vasant (P.W.No.1) and his father Maruti (P.W.No.2). Respondent no.1 and one Tukaram examined themselves in support of their respective cases. After appreciation of the evidence, the trial court held that Shankar proved his title to the suit property and that he is entitled to possession thereof. As regards the allegation that the respondents had taken forcible possession of the suit premises, the same was disbelieved by the trial court. It also held that the suit as filed was within the period of limitation. With these findings, the trial court partly decreed the suit granting decree of possession of the entire property as claimed by Shankar and rejected prayer for permanent injunction. 6. Aggrieved by the judgment and decree, the respondents preferred Regular Civil Appeal No.292 of 1996. The appellate court after 4 hearing both the sides partly allowed the appeal holding that Shankar was entitled to possession not of the property as described in the plaint of 16 khans but only of 9 khans. Thereafter, the decree of the appeal court has been executed and the heirs and legal representatives of Shankar have received possession of the property of nine khans and have since been in possession thereof. The appeal court has observed that the sale-deed at Exhibit-110 mentions titled house facing western side of “teen khan tigai”, i.e. nine khan sold to Maruti by Nana Mungashe. The judgment refers to the four boundaries of the property one of them being the open space (sopa) belonging to Bhagubai which was never alienated to Maruti. With this, the appellate court held that the house was divided into two parts, the eastern portion consisting of nine khans purchased by Maruti and western portion of 6 khans never sold to him. 7. Mr.Joshi, the learned counsel for the appellant submits that the appellate court is clearly in error to hold that there was division of the property into two parts of 6 khans and 9 khans. He draws attention to the document at Exhibit-110 to show the boundaries of the property and submits that the appellants are entitled to possession of the entire property. He claims that after the sale of the property, Bhagubai had continued to be in possession of the 9 Khans which formed the rooms. The remaining vacant portion of 6 khans was in possession of Maruti as the owner. In the year 1948 he constructed rooms therein of 6 khans and had since been in possession of the rooms. It is alleged that on 4th January, 1970 he was forcibly dispossessed 5 therefrom by the respondents. The facts narrated by Mr.Joshi have not been pleaded anywhere in the plaint. It has not been stated that Maruti had in the year 1948 carried out any construction in the suit property. Infact, the plaint is completely silent as regards the existence of 15 khans thereon i.e. 9 khans and 6 khans when the document on the basis of which the title is claimed refers to only 9 khans property. Therefore, the appellants will be entitled to only the property consisting of 9 khans at the place described in the document at Exhibit-110. I am unable to agree with the argument of Mr.Joshi that the appellant should get whatsoever is the property within the boundaries described in the document. What has been specifically sold to Maruti by the said document is a tiled house on the western side consisting of `teen khans tigai’ totaling to 9 khans. Mr.Joshi then refers to the words “alongwith the front portion” and submits that this front portion consisted of 6 khans which was later on constructed upon. He admits however that even today there is some open space left on the property. In these circumstances, in my opinion, on correct interpretation of the document at Exhibit-110 it cannot be said that the plaintiffs are entitled to the property of 16 khans. The appellate court has correctly held that the appellants are entitled to only nine khans property as per the document at Exhibit-110. Hence, the Second Appeal is dismissed. [JUDGE] 6