1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.43/2010 ( Punaram Katare ..V/s.. Haji Sheikh Kasam S/o Sheikh Mohammad ) with Second Appeal No.42/2010 ( Punaram Katare ..V/s.. Haji Sheikh Kasam S/o Sheikh Mohammad ) ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Mr. P.V. Kaore, counsel for the appellant. Mr. H.M.S. Athar, counsel for the respondent. Coram : F.M.REIS, J. Dated : 5th March 2010. 1. Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. These two second appeal challenge the common judgment passed by the learned Ad-hoc District Judge-5, Nagpur in Regular Civil Appeal Nos.406/2002 and 407/2002 dated 9th October 2009 whereby the appeal preferred by the appellants challenging the judgment and decree dated 26/9/2002 passed in 2 R.C.S. No.1966/2000 by the learned Civil Judge (Junior Division), Nagpur came to be dismissed; the appeal preferred by the respondent challenging the dismissal of the counter claim filed by the respondent came to be allowed. 3. The parties shall be referred in the manner as described in the cause title of the judgment of the trial Court dated 26/9/2002. 4. The appeal No.43/2010 challenges the dismissal of the suit filed by the plaintiff whereas the Second appeal No.42/2010 challenges the reliefs granted in the counter claim filed by the defendant. 5. The plaintiff who is the appellant in the present appeals filed the suit for declaration and permanent injunction claiming that the plaintiff is the owner of the Municipal House No.305-A, Ward No.35, as notified under Maharashtra Housing Area Development Act, 1976 and residing therein since his birth along with his family and regularly paying the municipal taxes. The State Government has declared Ward No.35 as the slum area w.e.f. 29th November 1979 and since then the provisions of Slum Area Act are applicable to the said area. It is further his contention that the suit house was in 3 dilapidated condition and there was likelihood that the same would collapse. The authorities of the Municipal Corporation had inspected the suit house and issued a notice dated 10/3/2000. Thereafter, the police directed the plaintiff to stop putting up any construction or carry out any repairs to the house in view of an objection raised by the defendant. It is further the contention of the plaintiff that the defendant committed obstructions in the repairing of the suit house and consequently, he filed the suit against the defendant for declaration and permanent injunction. 6. The defendant filed the written statement disputing the claim of the plaintiff and contended that the plaintiff is not the owner of the Municipal House No.305-A, Ward No.35, and denied that he is residing there since his birth. The defendant disputed the contention of the plaintiff that the Municipal Authority had issued a notice to the plaintiff in respect of the repairing of the suit house. It is further contended that he and his three brothers had purchased a plot bearing No.295 admeasuring south-north 18 feet and east west 45 feet, total admeasuring 810 Sq.Ft. The house bears No.305 and is situated in Circle No.16/22. The property was purchased pursuant to a 4 registered sale deed dated 22/6/1988 which was executed by Smt. Dhirajbai W/o Rampyare Gupta and her six children. The said property is identified in the map by letters as “ABCDEA” and thereafter the defendant and his brothers have put up construction in the said property which is marked as letters “CDEFC” on the eastern portion of the said plot. It is further their contention that the remaining portion of the said plot was lying vacant and that on 26/10/1999 the plaintiff tried to encroach into the portion of the said land marked by letters “GHIJG” and thereafter the plaintiff in the last week of March 2000 instead of repairing his structure, encroached upon the plot of the defendant admeasuring north south 5 feet and east west 12 feet which is marked by letters “GHIJG”. Immediately thereafter a police report was lodged on the ground that the plaintiff has no right, title or any share of whatsoever nature in the suit land admeasuring 5 feet x 12 feet which belongs to the defendant and his three brothers. The defendant filed the counter claim seeking possession of the encroachment area as well as for the declaration, as stated in the counter claim. 7. The plaintiff thereafter resisted the counter claim and denied the averments therein 5 and prayed that the counter claim be dismissed. 8. The learned trial Judge after framing the issues and recording the evidence dismissed the suit filed by the plaintiff and also dismissed the counter claim filed by the defendant by common judgment and decree dated 26th September 2002. The learned Judge while disposing of the said suit came to the conclusion that the plaintiff was not owner of the house bearing Municipal House No.305-A of Ward No.35 as claimed by him. The learned Judge further rejected the contention of the plaintiff that he was carrying out the repairs of the house in view of the directions of the Nagpur Municipal Corporation. The learned Judge further held that the defendant had failed to establish that the plaintiff had encroached into the area “GHIJG” in the plaint map attached to the plaint and consequently, dismissed the suit as well as counter claim. The learned Judge while coming to the conclusion that the plaintiff was not the owner of the suit house found that the plaintiff was not having any sale deed or any title document in respect of the suit house in his favour. The learned Judge also found that the plaintiff has admitted that the suit plot is government land and that the plaintiff was not the owner of the suit house as well as of the suit 6 plot. The learned Judge also found that the plaintiff did not adduce any evidence to substantiate his claim of ownership. The learned Judge also found that the evidence of P.W.2 and P.W.3 cannot be believed to prove the claim of the plaintiff that he was the owner of the suit property. With regard to the claim of the plaintiff that the repairs of house were carried out in view of the notice from the Nagpur Municipal Corporation, the learned Judge on perusal of the notice, found that the said notice did not mention the number of the house nor the said notice discloses whether the plaintiff was the tenant or the landlord of the said house. The plaintiff also failed to examine any witness from the Corporation to substantiate his claim. The learned Judge further held that there is no evidence adduced by the plaintiff to establish that the notice was in respect of the suit house. The claim of the plaintiff that the defendant has obstructed in carrying out repairs came to be rejected. The learned Judge further held that the defendant had failed to establish that the defendant had purchased the suit property on the basis of the fact that the tax receipt still stood in the name of Gupta and not in the name of the defendant. The learned Judge disbelieved the contention of the defendant that he and his three brothers 7 had purchased the suit plot despite of the sale deed at Exh.60. The learned Judge further held that the sale deed could not be considered as the same was not proved. The learned Judge further held that the sale deed at Exh.60 was invalid. The learned Judge further came to the conclusion that the encroachment claimed by the defendants had not been established and consequently, the counter claim came to be dismissed. 9. An appeal was preferred by the appellant challenging the dismissal of the suit filed by him being Regular Civil Appeal No.406/2002. The defendant filed an appeal challenging the dismissal of the counter claim before the learned Ad-hoc District Judge in Regular Civil Appeal no.407/2002. By common judgment dated 9th October 2009, the appeal preferred by the plaintiff came to be dismissed while the appeal preferred by the defendant came to be allowed. The learned District Judge while disposing of the said appeal came to the conclusion that the plaintiff had failed to establish that he is the owner of the suit plot as well as that the defendant had obstructed the plaintiff. The learned District Judge further came to the conclusion that the defendant had proved that he is the owner of the house 8 bearing No.305. The learned Judge also came to the conclusion that the defendant had established that the plaintiff had encroached into the north south 4 feet x 12 feet east west and consequently, decreed the counter claim. The learned Judge on appreciation of the evidence produced by the defendant especially the notice dated 23/10/2000 issued by the Corporation at Exh.56 as well as the production of Jamabandi of house No.305 at Exh.57 showing the name of the vendor of defendant, came to the conclusion that the defendant had established that he is the owner of the suit property in view of the registered sale deed dated 22/6/1988 which was at Exh.88. The fact of ownership of the defendant was also corroborated by the vendor of the defendant (D.W.2). The learned District Judge as such set aside the findings of the learned trial Judge as far as the rejection of the counter claim of the defendant. As far as the claim of the defendant with regard to the encroachment, the learned Judge in view of the admission in the plaintiff's cross examination came to the conclusion that the defendant had established that the plaintiff had encroached into the encroached area which was shown by letters “GHIJG”. The learned trial Judge came to the conclusion that Section 23 of the Slums Act is not applicable in case of a 9 declaration under section 108 the of the Maharashtra Housing Area and Development Act, 1976. It is admitted that the house is declared under the provisions of section 108 of the Maharashtra Housing Area and Development Act, and therefore, the permission from the competent authority is not necessary for filing the counter claim. As far as the claim of the plaintiff of ownership, the same came to be rejected in view of the fact that the plaintiff had failed to adduce any evidence to substantiate his claim of ownership. Consequently, the appeal of the plaintiff came to be dismissed and the appeal refusing the counter claim came to be allowed. 10. Being aggrieved by the said judgment, these second appeals have been preferred by the appellant. 11. The learned counsel appearing for the appellant has not seriously disputed the findings of the learned District Judge with regard to the ownership of the defendant. The learned counsel, in fact, fairly submitted that the plaintiff has no documentary evidence to establish his claim of ownership over the suit property. The learned counsel, nevertheless, submitted that the lower Appellate Court was 10 not justified in decreeing the counter claim filed by the defendant. It is further submitted that the defendant had failed to identify the encroached area and consequently, lower Appellate Court was not justified in decreeing the counter claim filed by the defendant. On the other hand, the learned counsel for the defendant submitted that the claim of ownership has been established in view of the registered sale deed produced by the defendant. It is further his submission that there is no dispute as far as the location of the encroached area is concerned and only dispute which was raised by the plaintiff is with regard to his ownership of the suit property. It is submitted that once the claim of ownership has been rejected by the Courts below, there was ample justification for the lower Appellate Court in decreeing the counter claim. 12. Having heard the learned counsels for the parties and on perusal of the record, I find that both the Courts below have concurrently rejected the claim of ownership of the plaintiff. Both the Courts below have held that the plaintiff had failed to bring any evidence on record to establish his claim of ownership. In fact, the learned counsel for the appellant was unable to disclose any documentary evidence to 11 substantiate the claim of ownership. There is no sale deed or any other documentary evidence on record to establish the claim of ownership of the plaintiff. As such the findings of the Courts below to the effect that the plaintiff has failed to establish his claim of ownership cannot be interfered with in this second appeal. 13. The claim of the defendant, with regard to the ownership is established in view of the registered sale deed which is at Exh.89 whereby the defendant and his three brothers have purchased the suit property from one Gupta along with six children. The said sale deed has been registered before the Sub-Registrar. The findings of the learned trial Judge that the said sale deed has not been proved cannot be sustained as in view of section 68 of the Evidence Act once the document is registered there is no need to prove the document by examining the attesting witnesses. The learned District Judge as such was justified in setting aside the findings of the trial Court that the sale deed cannot be considered. The findings of the learned trial Judge that the defendant had failed to establish his claim of ownership cannot be accepted in view of the said sale deed. The lower Appellate Court has arrived at the findings on the basis of evidence on record 12 which includes the sale deed, the tax receipt and other documents along with oral evidence adduced by the defendant to come to the conclusion that the defendant is the owner of the suit property. As such the findings of the lower Appellate Court to the effect that the defendant has established his claim of ownership over the suit property does not call for interference. In fact the learned counsel for the appellant has fairly conceded that the plaintiff has not established their claim of ownership. 14. With regard to the claim of the plaintiff that the defendant has failed to establish about the encroached area, I find that on perusal of the pleadings of the parties in the counter claim and the written statement filed by the plaintiff thereto, that there was no dispute as far as the location of the disputed area is concerned. The only dispute was whether the plaintiff was the owner of the encroached area or not. The encroached area has been identified by the defendant in the map which has been attached to the counter claim by letters “GHIJG”. In the cross examination of the plaintiff, before the learned trial Judge, the plaintiff has stated as under - “ I have erected the walls on 13 5' x 12' which has been described by letters “G.H.K.J.G.” as shown in the map filed along with counter-claim. It is not correct to say that construction made on “G.H.I.J.G.” is encroachment.” This admission on the part of the plaintiff itself is sufficient to come to the conclusion that the location of the encroached area has been admitted by the plaintiff by erecting the walls as shown in the map. The only dispute was with regard to the claim of ownership by the plaintiff to the encroached area. As the plaintiff has failed to establish the ownership over the said encroached area, there is no justification for the plaintiff to continue in possession of said area. The defendant has established his ownership over the said area in view of the documentary evidence, referred herein above. The contention of the learned counsel for the plaintiff to the effect that defendant failed to establish the encroachment cannot be accepted in view of the evidence adduced by the defendant, referred herein above and coupled with the admission by the plaintiff. 15. In view of the above, I find that the lower Appellate Court was justified to dismiss the appeal, preferred by the plaintiff. The lower Appellate Court has given cogent reasons to come to the conclusion that the plaintiff had failed to prove his claim of ownership. The 14 lower Appellate Court has come to the conclusion that the ownership of the encroached area was belonging to the defendant and that the defendant has established that the plaintiff has encroached into his property. This findings given by the fact finding Court cannot be interfered in the present appeal as the same cannot be considered to be erroneous. 16. In view of the above, I find that there is no substance which arises in the above appeal as the findings are on the basis of proper appreciating of the evidence on record and hence the above appeal stands summarily dismissed. C.A.S.78/2010 (in S.A.43/2010) In view of the dismissal of the second Appeal No.43/2010, the civil application does not survive and hence the same is also disposed of. Judge. Tambaskar.