1 40 fa.1051.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1051 OF 2011 Pandurang Babanrao More and another. ... Appellants Versus 1. Pandurang Khandoba Dhavale (since deceased) 2. Dnyaneshwar Khandoba Dhavale and others. ... Respondents ----- Mr. Rompal S. Kohli for the Appellants. Mr. N.R.Bubna for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 12 th August, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellants and the learned counsel appearing for the Respondents. 2 On 29 th June, 2011, this Court called for R&P. On the earlier date, the submissions of the learned counsel appearing for the Appellants were fully heard. 3 The Appellants are the original plaintiffs. The Appellants 2 40 fa.1051.11 filed a suit for declaration that they are the absolute owners of the suit property by adverse possession and that the Defendants have no concern whatsoever in respect of the same. The second prayer is for decree of perpetual injunction. The suit property has been described in paragraph No.1 of the plaint, which reads thus: “1. Description of the property:- All that piece and parcel of property bearing City Survey No. 1368 B, situate at Shivajinagar (Pulachi Wadi), Pune, admeasuring about 51.08 Sq.Mtrs., within the limits of Pune Municipal Corporation and within the Registration Sub-District Haveli II and of District Pune and bounded as follows:- On or towards the East : By Road, South : By Lane and thereafter CTS No.698 Shivajinagar, Pune belonging to the Plaintiffs. West : By CTS No. 1368 A and North : By Lane together with all the appurtenances thereto and a shed admeasuring about 15' x 11', hereinafter for the sake of brevity and convenience referred to as “the suit property/ said property” 4 In paragraph No.2 of the plaint, the Appellants have stated that the suit property was originally owned by the original Defendant 3 40 fa.1051.11 No.1 – Pandurang Khandoba Dhavale and the suit property stands in the name of the Respondents. It is claimed that the father of the Appellants is the owner of the property bearing CTS No.698, Shivajinagar, Pune, which is abutting to a lane on the southern side of the suit property. It is contended that the father of the Appellants was in actual, physical and peaceful possession of the suit property from the year 1954. It is contended that in the year 1954, the father of the Appellants constructed a shed admeasuring 15’ x 11’ and was using the same as a Stable for his cattle. It is alleged that in the other part of the suit property, the father of the Appellants had constructed a room alongwith bathroom. In front of the room, a Tulshi Vrindavan was constructed by him. Reference has been made to the notice dated 17 th July, 1968 addressed by the Tahasildar to the Appellants’ father calling upon him to quit and vacate and handover the possession of the suit property. It is contended that the Appellants have become owners of the suit property by adverse possession. It is contended that the Respondent Nos.1 to 3 by taking undue advantage of the entries in the 4 40 fa.1051.11 revenue record have created third party rights in respect of the suit property in favour of the Respondent No.4. Later on, the plaint was amended for incorporating the challenge to the sale-deed dated 30 th January, 2003 executed by the Respondent Nos.1 to 3 in favour of the Respondent No.4 and a prayer was incorporated seeking a declaration that the said sale-deed was null and void. 5 The suit was contested by the Respondent Nos.2 to 4 by filing written statement. The material averments made in the plaint were denied. It was contended that the notice was issued by the Pune Municipal Corporation as regards demolition of the shed on the suit property. Therefore, the Appellants have instituted a suit in which the Appellants failed to obtain order of temporary injunction. After parties adduced evidence, the trial Court proceeded to dismiss the suit by passing the impugned judgment and decree. 6 The learned counsel appearing for the Appellants has taken the Court through the pleadings and the notes of evidence. He 5 40 fa.1051.11 pointed out the documents produced on record and especially the notice dated 17 th July, 1968 issued by the Tahasildar in the name of the father of the Appellants. He submitted that the said notice as well as the notice dated 3 rd May, 2003 issued by the Municipal Corporation establish the possession of the Appellants. He submitted that the notice dated 17 th July, 1968 shows long standing possession of the Appellants. He invited the attention of the Court to the material averments in the plaint. He submitted that there are specific averments that the Appellants have been enjoying the possession of the suit property openly and peacefully as owners without any obstruction from any person for a period of more than 35 years. He invited the attention of the Court to the affidavit in lieu of examination- in-chief of the Appellant No.1. He invited attention of the Court to the assertions made in the affidavit in lieu of examination-in-chief and especially clause (4) thereof. He submitted that the possession of the father of the Appellants was established from the year 1964. His submission is that the documents on record and the oral evidence 6 40 fa.1051.11 were sufficient to prove the case of adverse possession of the Appellants. He submitted that the Respondents came out with a different story at the time of recording of evidence to the effect that the possession of the suit property was taken over by the State Government for rehabilitation scheme and the possession was returned by the State Government to the Respondent Nos.1 to 3 in the year 1975. His submission is that the said contention could not have been raised at the time of recording of the evidence in absence of any pleadings. He submitted that in any case, there is evidence regarding the existence of shed and the Appellants cannot be dispossessed without following due process of law. The learned counsel appearing for the Respondents supported the impugned judgment and decree. 7 I have considered the submissions. I have perused the copies of the pleadings, notes of evidence and the true copies of the documents on record of the suit. The only title set up by the Appellants is by way of adverse possession. In paragraph No.3 of the plaint, the Appellants have stated thus: 7 40 fa.1051.11 “3. ..... In short, the father of the Plaintiffs was using the said property openly, peacefully, without any obstruction from any person and continuously for a period of not less that 12 years and more than 35 years as the owner thereof for the purpose of residence and keeping the cattles etc. Thus the said Mr. Babanrao More was full and absolute owner of the suit property by adverse possession.” In paragraph No.9 of the plaint, the Appellants have stated thus: “9. The Plaintiffs have reliably learnt that the Defendant Nos. 1 to 3 taking disadvantage of the fact that their names are recorded as holders of the said property, falsely claim to be the owners of the same. The Plaintiffs have also learnt that, with view to frustrate the claim of the Plaintiffs with regard to the ownership of the said property, the Defendant Nos. 1 to 3 have illegally created some interests in favour of Defendant no.4 in the said property.” 8 Thus, the Appellants have not accepted that the Respondent Nos.1 to 3 are the true owners. Perusal of the assertions made in the affidavit in lieu of examination-in-chief of the Appellant No. 1 shows that even in the examination-in-chief, the Appellants have not accepted that the Respondent No.1 was the original owner. In paragraph No.1 of the affidavit in lieu of examination-in-chief, there is a 8 40 fa.1051.11 statement that the Respondent No.1 was shown as holder of the suit property in the property register card. In paragraph No.5 of the affidavit in lieu of examination-in-chief, it is stated that in the year 2003, the Respondent No.3 filed an application for demarcation of the suit property as names of the Appellants were not appearing on the property register card, the objections raised by the Appellants were not considered. 9 Except for stating that the Appellants have perfected their title by adverse possession, there is no clear assertion of hostile title to the knowledge of the Respondent Nos.1 to 3 who were the real owners. On the contrary, the Appellants have not accepted the ownerships of the Respondent Nos.1 to 3. 10 The Appellants placed reliance on the notice dated 17 th July, 1968 issued by the Tahasildar to the father of the Appellants. The notice refers to a cattle shed, a house, bathroom and Tulshi Vrindavan. It alleges that the father of the Appellants has carried out construction 9 40 fa.1051.11 of unauthorized structure as set out in the said notice. In the affidavit in lieu of examination-in-chief, the Appellant No.1 stated that his father demolished bathroom, the room (house) and Tulshi Vrindavan. Thus, even according to the case of the Appellants, what remained in possession of their father was a cattle shed. The notice issued by the Pune Municipal Corporation to the Appellants is only in respect of the shed admeasuring 12’ x 11’. 11 In the cross-examination made by the Advocate for Respondent Nos.2 to 4, the Appellant No.1 accepted that after purchasing the suit property, the Respondent No.4 started Keeping his horses on the suit property in the capacity of owner. 12 It is true that the case regarding taking over the suit property for rehabilitation scheme was made out for the first time in evidence. However, the Appellants are claiming title only on the basis of the adverse possession and therefore, the Appellants will have to be stand or fall by their own case as they cannot rely upon weakness in 10 40 fa.1051.11 the case of the Respondents. As pointed out earlier, the pleadings are defective. The Appellants have not accepted the title of the true owners. There is no specific case made out that the Appellants or their predecessor asserted hostile title to the knowledge of the Respondent Nos.1 to 3 and therefore, on plain reading of the plaint and affidavit in lieu of examination-in-chief, the basic ingredients of the plea of the adverse possession have not been pleaded and proved. As the only plea raised by the Appellants is of the perfection of title by adverse possession, the suit must fail as rightly held by the trial Court. At highest, the Appellants have established possession over cattle shed on the suit property. As the Appellants have failed to establish the right which they have pleaded, they are not entitled to perpetual injunction in respect of the shed inasmuch as the grant of relief of perpetual injunction is always a discretionary. 13 Hence, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. 11 40 fa.1051.11 14 The Civil Application No. 1983 of 2011 does not survive and the same is disposed of. 15 On the prayer made by the learned counsel appearing for the Appellants, the interim relief which was operating during the pendency of the suit will continue to operate for a period of ten weeks from today. [ A.S.OKA, J ]