:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 774 OF 2003 APPEAL NO. 774 OF 2003 APPEAL NO. 774 OF 2003 A L O N G W I T H L O N G W I T H L O N G W I T H SECOND SECOND SECOND APPEAL NO. 775 OF 2003 APPEAL NO. 775 OF 2003 APPEAL NO. 775 OF 2003 A L O N G W I T H L O N G W I T H L O N G W I T H WRIT WRIT WRIT PETITION NO. 5193 OF 1993 PETITION NO. 5193 OF 1993 PETITION NO. 5193 OF 1993 A L O N G W I T H L O N G W I T H L O N G W I T H WRIT WRIT WRIT PETITION NO. 5814 OF 2007 PETITION NO. 5814 OF 2007 PETITION NO. 5814 OF 2007 Vasant Balu Patil & Ors. ..Petitioners. Versus Mohan Hirachand Shah and Ors. ....Respondents. A L O N G W I T H L O N G W I T H L O N G W I T H WRIT WRIT WRIT PETITION NO. 5815 OF 2007 PETITION NO. 5815 OF 2007 PETITION NO. 5815 OF 2007 Vasant Balu Patil & Ors. ...Petitioners. Versus Smt.Geeta Kumarchand Shah & Ors. ....Respondents. Mr.Uday Warunjikar, Adv. for the Applicants. Mr.Vashi for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 14th March, 2008. P.C.: P.C.: P.C.: 1. The principal arguments have been addressed by Mr.Warunjikar and Mr.Vashi in Second Appeal No.774 :2: :2: :2: of 2003 and both of them do not dispute that the judgment on this Second Appeal will govern the pending Writ Petitions which are listed alongwith it, so also, another Second Appeal. Therefore the main judgment is being delivered in this Second Appeal. 2. This Second Appeal is directed against the Judgment and Decree of the Appellate court dated 3.3.2001 in Civil Appeals No.189 and 190 of 1997. The civil Appeals were directed against the Judgment and Decree of the Civil Judge Senior Division, Alibaug in Reg.Civil Suit No. 124 of 1982 and 125 of 1982. 3. It is pertinent to note that the Appellants to this Second Appeal are Original Respondent Nos.2, 1/2, 1/3. Respondent nos.1 to 10 in this Second Appeal are the Original Appellants in Civil Appeals No.189 and 190 of 1997. Respondent no.11 is the original Respondent No.1 in that Civil Appeal. 4. The Respondent Nos.1 to 10, namely, Appellants :3: :3: :3: before the lower Appellate Court are the Original Plaintiffs. The Appellants before me are some of the Original Defendants. It would be better to refer to the parties by their Nomenclature in the Trial court. 5. The Original Plaintiffs had filed these suits for removal of encroachment, declaration and perpetual injunction. 6. The contention of the original plaintiffs in R.C.Suit No.124 of 1982 is that the land bearing Survey No.49-A/2001 is their property. It is in their use and it is an ancestral property. it was contended that in the record of rights, the property was wrongly entered as Hirachand Amarsingh Gujar for and on behalf of the villagers. Infact, that entry is false and the villagers do not have any right, title or interest in this property. It was contended that the Revenue proceedings are going on and since the plaintiffs title was denied that they had to file this suit with a prayer for Declaration also. It was contended that defendant no.1 with a :4: :4: :4: view to bring some machinery for construction of project of RCF at Thal-Waishet were in need of some road from Mandwa Bunder till their approach road. That contract was obtained by Original Defendant No.2 and the work was in progress. This fact was also noticed by Plaintiff, inasmuch as, Defendant no.2 disclosed that the work is of construction of a road and Shed. The plaintiff noticed that this construction is likely to affect their right, title and interest and that is how the suit was filed. 7. Insofar as, Reg.Civil Suit No. 125 of 1982 is concerned, the original Plaintiffs contended that Survey No.154 now Gat No.262, Survey No.43 and 49, Hissa No.1A, corresponding to Gat No. 214 A-1 and Survey No.49, Hissa-A-2 corresponding to Gat No.214B are their properties and they own and possess them. It is contended in that suit, that on 30.8.1982 they noticed that Defendant No.1. has erected a compound/wire fencing and that is why they approached the Defendant no.1 and disclosed the fact that they are owners of the suit property and no action be taken so as to prejudice their rights. :5: :5: :5: Despite this, the Defendant no.1 continued the encroachment and constructed Two Houses admeasuring 12 x 12 ft each and 10 ft. of Height within this fencing and compound. The same was noticed on 19th September, 1982. Thereafter, there was discussion till 23rd October, 1982 and ultimately, the encroachment being not removed, legal action is initiated. In these circumstances, the suit was filed. 8. The suit was amended and that is how the some of the villagers were impleaded as parties thereto. The Defendant no.1 filed his Written statement (Exhibit-13) and denied the claim of the plaintiffs. It was urged that plaintiffs are not having any right or interest in the property as the property is of Mandwa Villagers. Hence it was prayed, that the suit be dismissed. 9. The defendant no.2 adopted the Written Statement by filing a Purshis (Exhibit-17). Defendant nos.3 to 7 filed a Written Statement (Exhibit-28) and denied all the contentions. They :6: :6: :6: contended that the suit in the present form is not tenable. The amendment sought by the plaintiff is not legal and proper and it was necessary to give public notice and citation as per Order V Rule 20 of the CPC. Alternately, it was contended that the matter was pending before the Revenue Authorities and as such Civil court will have no jurisdiction to decide the disputes between the parties. It was also urged that the suit clam is barred by law of limitation. 10. It was contended in the Written Statement filed in Reg.Civil suit No.124 of 1982 that since 1926-27 the name of the Villagers is entered into the record of rights and since then the plaintiff never raised an objection about the entries. Therefore, the suit claim is barred by the principles of Estoppel and Acquiescence. It was urged that the plaintiffs predecessor was a respectable person in that area and that is why there is an entry on behalf of the villagers in the name of the plaintiffs predecessor. Barring this entry, the plaintiffs are not having any right, :7: :7: :7: title and interest in the property. The villagers are the exclusive owners. It was further urged that as per the agreement between the Villagers and Defendant no.1 and 2, the road has been constructed, so also, the shed. That work is complete. The intention of the plaintiffs is to grab the Villagers property and therefore the suit be dismissed. In the additional Written Statement, it was urged that in addition to the relief of Declaration being barred by limitation, the plaintiffs are not entitled to any other reliefs because no particulars have been furnished with regard to the claim, that the property is an ancestral property. The Additional Written Statement was also filed by defendant nos.2/3, 3/13 (Exhibit 125) and they raised similar objections. This was the defence in Reg.Civil Suit No.124 of 1982. 11. Insofar as, Reg.Civil Suit No.125 of 1982, the defence is that between 16.8.1882 to 15.5.1983 the suit property was used. It was contended that the compensation has been paid to Mandwa villagers as they are the true owners of the property in use. :8: :8: :8: Therefore, Defendant no.1 is not liable to pay anything to the plaintiffs. Defendant nos.2 to 6 to that suit denied the suit claim and contended that the civil court has no jurisdiction. Their case is that the suit is barred by limitation. In the additional Written statement it was contended that the rough sketch is not filed alongwith the suit and therefore the requirement of Order VII Rule 3 of the CPC is not complied with. The Suit is therefore not tenable. In short, the contention is that the villagers are the owners of the property, no action was taken by the original plaintiffs with regard to the deletion of the Mutation Entry which is in favour of the Villagers and therefore the Suit is not tenable and deserves to be dismissed. 12. As far as these suits are concerned, it is common ground before me that they were consolidated and tried together. In the light of the rival contentions Issues and additional Issues were framed on 17.6.1996 and 24.4.1997. It is not necessary to refer to each and every issue, inasmuch as, before me the issue with regard to the title of the :9: :9: :9: plaintiffs to the suit property has been placed in the forefront. All arguments have centred around the same. Therefore, insofar as, the Issues which are in Suit No. 124 of 1982 are concerned, those pertaining to the title of the plaintiffs and mandatory injunction for removal of the road and shed/encroachment and ownership and possession of the Villagers alone are relevant. Those are Issue No.1, 4, 6 and 10. Insofar as, Reg.Civil Suit No. 125 of 1982 is concerned, there also Issue No.1 and 3 are pertaining to the ownership and title of the Plaintiffs and the construction thereon. 13. It is not in dispute that in the light of the rival pleadings, these issues were drawn and oral evidence was led and documents were placed on record of the trial court. P.W.No.1 Mohan Hirachand Shah was examined by the plaintiffs whereas one Shivram Dadaji More was examined by the defendants. The Trial Court after considering the oral and documentary evidence and hearing both sides proceeded to dismiss the suits. :10: :10: :10: 14. Aggrieved by the dismissal of their suits, original plaintiffs preferred the above mentioned Civil Appeals which have been allowed. 15. The Second Appeal is by the aggrieved defendants/respondents to the Appeal. Mr.Warunjikar appearing for the appellants contended that substantial questions of law that would arise for the consideration of this court, are that the lower Appellate Court has while reversing the judgment and Decree of the Trial Court dismissing the suit completely overlooked the fact that the suit lands are common property of the villagers and they have been using and possessing them for the past 50 years openly and without any objection by the original plaintiffs. He submits that substantial questions as are framed at para 2(1 to 5) of the Memo of the Second Appeal No.774 of 2003 would arise for consideration. 16. On the conclusion of the arguments and after the matter was placed for Judgment today, Mr.Warunjikar tendered an Application containing :11: :11: :11: additional substantial questions of law. Mr.Vashi, appearing for the original plaintiffs opposes the Application and the Annexures thereto being taken on record. In his submission, apart from the fact that the Application is not tendered bonafide, the arguments are over and the matter is fixed for judgment, they do not contain anything by which this court would be in a position to frame any substantial question of law. In other words, no substantial question of law arises for consideration of this court. In his submission, this application should not be taken on record. In my view, the Application now tendered purportedly containing additional grounds cannot be taken on record. All arguments have been canvassed. The Second Appeal contains, according to the Appellants, substantial questions of law which cover the entire controversy. All arguments have been addressed on the basis that such questions arise for determination. During the course of arguments, various pleas were raised to which a reference will be made hereinafter. My attention was invited even to certain documents. In such circumstances, now permitting the Appellants to :12: :12: :12: tender the Application and request this court to take on record some additional grounds would not be fair, just and proper. The matter has been extensively heard. This court devoted lot of time after admission work to the hearing of these matters. Now, allowing any additional grounds and entertaining further arguments on that basis would be wholly improper. Therefore the request of Mr.Warunjikar to take on record, additional grounds is rejected. 17. Mr.Warunjikar, insupport of the Appeal has contended that the judgment rendered by the lower Appellate Court suffers from perversity. He submits that the position in law is clear. He who asserts any title in a immovable property and claims any rights therein must prove the same. In the instant case, the continued possession of the lands with the villagers is not disputed. The possession is with all the villagers. This finding of the Trial Court is material and important. The same has not been taken note of, by the lower appellate court. Thus, there is a serious error which goes to the root of :13: :13: :13: the matter, according to Mr.Warunjikar. 18. He submits that the perversity in the judgment of the lower Appellate Court can be demonstrated by the fact that the entries in question are of the year 1926. The suit is filed in the year 1982. The claim is clearly time barred against the defendants. There is no pleading of any obstruction. In such circumstances, the Trial court’s Decree dismissing the suit of the plaintiffs should not have been interfered with and disturbed at all. 19. Mr.Warunjikar, then submits that there is a complete non-compliance with Order 7 Rule 3 of the Code of Civil Procedure. He submits that rough sketch has not been placed on record. Once there is no sketch/map on record, then, then there are no particulars of the immovable property in question. Once, the immovable property which is subject matter of the dispute is not described with necessary and adequate particulars, then, the claim could not have been entertained at all. There is no discussion in the order of the lower Appellate Court on this :14: :14: :14: aspect. 20. Mr.Warunjikar’s grievance is that the lower Appellate Court was deciding a Regular Civil Appeal. That is a First Appeal. That Appeal is as of right. That Appeal is on a question of law and facts, both. It was expected of the lower Appellate court to have applied its mind to the entire controversy. It should have undertaken complete appraisal and appreciation of the materials produced before the court. More so, when it was inclined to reverse the judgment. Therefore, the failure of the first Appellate Court to perform its duty in law is itself a substantial question of law and therefore the Second Appeal must be entertained. 21. On the other hand, Mr.Vashi Learned Counsel appearing for the original plaintiffs/respondents submits that there is no question of law, much less, any substantial question of law involved in the Second Appeal. He submits that the Trial Court’s judgment has been rightly reversed by the lower Appellate Court. It has performed its duties as a :15: :15: :15: first Appellate Court. It has also applied its mind to the aspects which were highlighted before it. He submits that the very basis of the findings of the lower Appellate Court is that the revenue entries did not confer any title. What were placed before the Trial Court and the lower Appellate Court were mere revenue entries. They may date back to 1916. However, these entries do not confer any title with regard to the immovable property in question. The continued possession by the person concerned is not on behalf of the Villagers as falsely alleged. If the Revenue entries disclose the name of the predecessor in title of the Original Plaintiffs, but, it is the case of the villagers that he was in possession for and on their behalf, then, it was incumbent upon them to establish that case by leading evidence. That has admittedly not been done. Therefore, merely because there is a revenue entry does not mean that the possession of the villagers is traceable to any valid title or right in the immovable property. For all these reasons, there is no merit in the Second Appeal and it deserves to be dismissed. :16: :16: :16: 22. Mr.Warunjikar and Mr.Vashi have relied upon several decisions in support of their contentions. Some are listed herein below. (i) (2007) 5 SCC 669 P.Chandrasekharan and Ors. V/s. S.Kanakarajan and Ors. (ii) (1997) 7 SCC 137 Balwant Singh and Anr. V/s. Daulat Singh (Dead) by Lrs. and Ors. (iii) Santakumari and Ors. V/s. Lakshmi Amma Janaki Amma (D) by L.R.s and Ors. (iv) AIR 2002 SCC 1428 Jain Singh v. Shakuntala. (v) AIR 2003 SCC 4351 Krishna Mohan Kul alias Nani Charan Kul and anr. vs. Pratima Maity and Ors. (vi) AIR 2006 SC 2234 Here Vinoth (minor) V/s. Seshammal :17: :17: :17: (vii) AIR 2003 SCC 1905 Bondar Singh vs. Nihal Singh 23. With their assistance I have perused the impugned judgments. It appears that this court had passed an order in the connected matters calling for Record and Proceedings. The record is produced before the Court. 24. The suit in the Trial Court is on the basis that the lands situated in the village and more particularly described in para-1 of the plaint is the property of the plaintiffs. The possession of the plaintiffs thereto is also lawful, inasmuch as, this is an ancestral property. In the 7/12 Extract, erroneously it has been mentioned that the land is held by Hirachand Amarsingh Gujar for villagers. However, the villagers are not concerned with the suit property at all. The averments in the plaint proceed on the basis that the First Defendant Company has got some contract from RCF and therefore :18: :18: :18: it was desirous of constructing a road from Alibaug-Revas up to Mandwa junction and from that junction to the Mandwa Jetty. However, some portion of that road and the road was proposed to pass through the suit property and therefore the same has been shown in the sketch annexed and filed alongwith the plaint. When there was a construction and that came to the knowledge of the plaintiff that they visited the site and also addressed a Notice on 14.08.1982 and a Reminder was sent to 14.9.1982. The admitted encroachment in the property has been set out in para-5 and 6 of the plaint and the prayers are in para-8. The Written statement was filed and the defence is that the plaintiffs do not have right in the property. The Written Statement of Defendant nos.3 to 7 proceeds on the basis that the Survey of 1926-1927 with regard to the Mandwa area discloses that the suit property as also the other land is shown in the name of the Villagers. There are "Kabjedars". That entry is appearing in the record/Certificate from 1926-1927 but the predecessor in title of the plaintiff as also the plaintiffs have not objected of the same. The :19: :19: :19: proceedings commenced in 1982 and even during the course of the same, no objections having been raised. The suit is barred on the principle of waiver and Acquiesence. It was pointed out that the person whose name has been entered in record was a influential but known figure in the village. The Villagers had faith in him and therefore his name has been entered in the record as ‘Wahiwatdar’ on behalf of the villagers. Thus, the lands belong to the Villagers and their ownership has never been the subject matter of dispute. 25. The lower Appellate Court has after referring to the plaint allegations and the decree of the Trial Court dismissing the suit, framed the points for determination. Insofar as, point no.1 is concerned, that is with regard to the claim of the appellants/original Plaintiffs, of title and possession over the lands. Point No.2 is with regard to the encroachment and Point Nos.3, 4 and 5 deal with jurisdiction, limitation, Estoppel and Acquiescence. The Trial Court has referred to the materials, but, insofar as, the lower Appellate :20: :20: :20: Court is concerned, while re-appraising and re-appreciating it, has in para-16 of the impugned judgment observed that Mohan Dharamchand Shah, who deposed on behalf of the plaintiffs stated that the entries in the name of the Villagers are not showing the correct position. He pointed out that the disputed entry should have been deleted. He deposed about the pendency of the proceedings in the court. That apart, the lower Appellate Court has placed reliance upon the deposition of the plaintiffs and documents, wherein it is stated that the family of the plaintiffs possess and owns agricultural land for long time. There was a partition of the properties belonging to the Family which has been recorded as per the decision in the suits filed for that relief. The lower Appellate Court considered the arguments of the original defendants that these lands were not included in the partition suits. These land are properties of the Villagers and not of the plaintiffs. 26. In para 18 of the Judgment of the lower appellate Court, a reference is made to the :21: :21: :21: documents produced by the plaintiffs. The total area admeasures 2 Hectares and 70 ares. That is the area of the lands in both the suits. The disputed entry is No.530 dated 4.11.1916 (Exh.79). The entry is in the name of Amarsingh Laxmidas Gujar on behalf of the villagers. It is undisputed that this Amarsingh Gujar was the grandfather of the present plaintiff. The Column No.10 does not show anything about the rights or encumbrance of the third persons on these lands. The lower Appellate Court has observed that the mutation entry has been made, but, there is nothing on record to indicate that it has been made or certified after the Notices were issued to all interested parties. Exhibit 141 would show that the entry is not in existence. Therefore, the lower Appellate court observed that Mutation Entry 530 may be there, but, when the Villagers are claiming title they must produce other documents to support their contention. That is not done. Therefore, the lower Appellate Court observed that mere entries in the Revenue record, assuming, they are existing will confer no right or title in the suit properties. A reference is made to the :22: :22: :22: decisions of the Hon’ble Supreme Court on the point that such entries are for fiscal purposes. They are made with a view to enable the parties to collect land revenue. They do not evidence any right or title in the immovable property. That apart, assuming the Entry No.530 (Exh.79) would prove that villagers had any right in the lands, yet, after the death of Amarsi Gujar, the name of his sons is brought on record, but, the villagers do not urge that the sons continue to represent them. In such circumstances, and other material evidencing their right, then, the Plaintiffs version is reliable and trust-worthy. It is not shaken in cross-examination either. 27. However, the lower Appellate Court’s judgment and order does not rest here. It proceeds to consider the plaintiffs evidence and documents. There is a reference made to Mortgage Deed, sale-deed and Rent Note which evidence certain transactions pertaining to Survey No.49, 146 and 43. Exhibit-154 , 156 and 157 and Rent Note dated 5th November, 1984 pertaining to Survey No.43 are :23: :23: :23: referred to. The documents which are maintained including Durusti-Prati-book, Pulan-Khalsa, Kami-Jasti Patrak, are referred to. The lower Appellate Court has observed that if these documents are perused in the light of the oral depositions, then, they indicate that the Survey