SMT. BAYANABAI KAWARE versus RAJENDRA S/O BABURAO DHOTE
[2017] 11 S.C.R. 1029, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
[2017] 11 S.C.R. 1029 
SM~BAYANABAIKAWARE 
v. 
RAJENDRA S/O BABURAO DHOTE 
(Civil Appeal No.19625 of 2017) 
NOVEMBER23,2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.] 
Transfer of Property Act, 1882 -
si.~ 54and123 - Possession 
A 
B 
· _and mesne profits - Claim of, on basis of sale deed - Respondent- c 
plaintiff purchased the suit land from a Housing Co-operative 
Society vide registered Sale deed and was, accordingly, placed in 
possession of the suit land by the Society - After few years, appellant 
encroached upon the suit land and erected a 'kacha' hut - ' 
Respondent filed suit against appellant claiming possession and 
mesne profits in relation to the suit land;... Trial Court and the First D 
Appellate Court held that since the sale deed was hot properly 
proved, the respondent's suit was dismissed - High Court held that 
the respondent proved the sale deed as required in law and, therefore, · 
was entitled to claim decree for possession on the basis of sale 
deed as owner against the appellant - On appeal, held: Sale deed 
E 
was duly proved by ihe respondent and rightly relied 011 by the 
High Court for passing a decree of possession against the appellant 
- It is for the reasons that, firstly, the execution of the sale deed 
does not need any attesting witness like the gift deed, which requires· 
at least two attesting witnesses at the time of its execution as per 
s.123 of the Transfer of Property Act, and Secondly, s.68 of the 
F 
Evidence Act, which deals
with the examination of the attesting 
witness to prove the execution of the document, does not. apply to 
sale deed, which is governed by s.54 of the Transfer of Property 
Act-Appellant (defendant) did not dispute the respondent's vendor's 
(Housing Society) title - Further, respondent entered in witness box G 
and proved its execution and further did not raise any objection 
when the sale deed was being exhibited in evidence - In light of 
these admitted facts, respondent had a better title of suit land as 
against the appellant, who had no title to the suit land - Evidence 
Act, 1872 - s. 68. 
. 
H 
1029
)()30 
SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A 
Dismissing the appeal, the Court 
HELD: 1.1 The High Court held that the sale deed was 
duly proved as required in law and accordingly passed the 
decree for 
p~ssession against the appellant in 
relation to 
the suit land. The reasoning of the High Court is correct. The 
B respondent was able to prove the sale deed and was, therefore, 
rightly held entitled to claim decree for possession of the suit 
land on the strength of the sale deed against the appellant. [Paras 
18 and 19] [1034-C-D] 
1.2 
It is for the reasons that, firstly, the execution of the 
c sale deed does not need any attesting witness like the gift deed, 
which requires at least two attesting witnesses at the time of its 
execution as per Section 123 of the Transfer of Property Act, 
1882; and Secondly, Section 68 of the Evidence Act, 1872, which 
deals with the examination of the attesting witness to prove the 
execution of the document, does not apply to sale deed, which is 
D governed by Section 54 of the Transfer of Property Act. [Para 20] 
[1034-E-F] 
2. Further, the appellant (defendant) in this case did not 
dispute the respondent's vendor's (Housing Society) title. On 
the other hand, she, in clear terms, admitted their title in her 
E 
written statement. It is also not in dispute that the respondent 
entered in witness box and proved its execution and further did 
not raise any objection when the sale deed was being exhibited 
in evidence and
indeed, rightly for want of any legal basis. [Para 
21] [1034-G] 
F 
3. In the light of these admitted facts, the sale deed in 
question was duly proved by the respondent and was, therefore, 
rightly relied on by the High Court for passing a decree of 
possession against the appellant. It was a clear case where the 
respondent had a better title of the suit land as against the 
G appellant, who had no title to the suit land. All that the appellant 
had was a plea of adverse possession which was not held proved. 
[Para 22] [1034-H; 1035-A] 
H 
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 19625 
of2017.
SMT. BAYANABAI KAWARE v. RAJENDRA S/o BABURAO 
1031 
DHOTE 
From the fina!Judgment and Order dated 11-10-2012/12-10-2012 
A 
of the High Court of Judicature at Bombay, Bench at Nagpur in Second 
Appeal No.304of 1997. 
Anshuman Singh, Satyajit Desai, Ms. Anagha S. Desai, Ad vs for 
the Appellant. 
Rahul Chitnis, Aaditya A. Pantle, Chander Shekhar Ashri, Advs 
B 
for the Respondent. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. 1. Leave granted. 
2. This appeal is filed by the defendant against the final judgment 
C 
and order dated 11/12.10.2012 passed by the High Court of Judicature 
at Bombay, Nagpur Bench, Nagpur in Second Appeal No.304/1997 
whereby the Single Judge of the High Court allowed the appeal filed by 
the respondent herein and reversed the judgment/decree dated 26.08.1996 
passed by the 3n1 Additional District Judge, Nagpur in Regular Civil Appeal 
D 
No.152/1989 which arose out of judgment/decree dated 31.01.1989 
passed by 3n1 Joint Civil Judge, Junior Division, Nagpur in Regular Civil 
Suit No.1210/1985, which had dismissed the respondent's civil suit. 
3. In order to appreciate the short controversy involved in the 
appeal, few relevant facts need mention hereinbelow. 
4. The appellant is the defendant whereas the respondent is the 
plaintiff in a civil suit out of which this appeal arises. 
5. The dispute relates to plot No.12 of field No.13/3, P. H. 44 
situated in Mouza Parsodi Tahsil, District Nagpur admeasuring 1625 
E 
sq.ft.
(hereinafter referred to as the "suit land"). 
F 
6. The suit land originally belonged to one Housing Co-Operative 
Society called - "Subhash Nagar Gruba Nirman Sahakari Sanstha 
Limited, Nagpur" (hereinafter referred to as "Society"). The respondent 
purchased the suit land from the Society vide registered sale deed dated 
29. 12.1981 and was, according! y, placed in possession ofthe suit land by 
G 
the Society. 
7. In March 1985, it was noticed by the respondent that the 
appellant had encroached upon the suit land owned by him and erected 
a kacha hut on one portion of the suit land without any authority. This 
led the respondent to serve legal notice dated 22.04.1985 on the appellant H
1032 
SUPREME COURT REPORTS 
[2017] ll S.C.R. 
A asking her to remove the hut, which was illegally erected by her on the 
suit land. Since the appellant did not remove the hut, the respondent 
filed a suit being Civil Suit No.1210/85 in the Court of Civil Judge, Junior 
Division, Nagpur against the appellant claiming possession and mesne 
profits in relation to the suit land. 
B 
8. The suit was founded essentially on the allegation, inter alia, 
that the respondent is the owner of the suit land having purchased the 
same from the Society by registered sale deed dated 29.12. I 981(Ex.P-
31 ). It was alleged that the respondent was placed in possession of the 
suit land pursuant to the sale deed. It was alleged that the appellant, in 
C March 1985, un-authorisedly entered into the suit land and erected one 
hut on one portion of the suit land and hence, the suit is filed by the 
respondent seeking possession of the suit land and also claiming the 
mesne profits from the appellant. 
9. The appellant filed written statement and denied the 
respondent's claim. According to her, the suit land was allotted to one 
D Dhondiba Lodhi by the Society, who then constructed his house on the 
land and on his death, his wife - Hirabai became its owner. It was then 
averred that Hirabai entered into an agreement with the appellant on 
22.05 .1972 to sell the suit land and pursuant to the agreement, was placed 
in possession of the suit land. It was averred that since then the appellant 
E
continued to remain in possession of the suit land without any interruption 
from anyone and has accordingly acquired ownership of the suit land by 
virtue of she being in adverse possession of the suit land. This, in 
substance, was her defense. 
I 0. The Trial Court framed the issues and parties adduced their 
F evidence. By judgment/decree dated 31.01.1989, the Trial Court 
dismissed the respondent's suit. It was held that, firstly, the respondent 
failed to prove the sale deed (Ex.P-31) inasmuch as the sale deed had 
some kind of discrepancies and also no attesting witness was examined; 
secondly, the appellant was in possession of the suit land since 1972 and 
hence perfected her title over it by adverse possession; thirdly, the dispute, 
G which is the subject-matter of civil suit, pertained to the business of the 
Society and hence covered by Section 91 of the Maharashtra Cooperative 
Societies Act (in short "the Act") and is, accordingly, barred under Section 
163(1) of the Act. 
11. The respondent, felt aggrieved by the judgment of the Trial 
H Court, filed First Appeal before the 3rd Additional District Judge, Nagpur
SMT. BAYANABAI KAWARE v. RAJENDRA S/o BABURAO 
1033 
DHOTE [ABHAY MANOHAR SAPRE, J.] 
being Regular Civil Appeal No.152 of 1989. The Appellate Court, by 
A 
judgment dated 26.08.1996, dismissed the appeal and affirmed the 
judgment and decree of the Trial Court. The Appellate Court reversed 
the two findings of the Trial Court. One was in relation to the bar contained 
in Section 91 of the Act and the other relating to the plea of adverse 
possession. In other words, the Appellate Court reversed the two findings 
of the Tri(ll Court and held that, firstly, the bar contained in Section 91 of B 
the Act does not hit the civil suit and hence maintainable in Civil Court 
and secondly, the appellant (defendant) failed to.prove her adverse 
possession-0ver the suit land and hence cannot be declared the owner of 
the suit land on the strength of her alleged adverse possession over it. 
However, since the Appellate Court confirmed the finding of the Trial 
C 
Court insofar as it pertained to not properly proving the sale deed dated 
29.12.1981 (Ex.P-31), the suit was dismissed. In other words, the 
· Appellate Court also held that the respondent (plaintiff) was not able to 
prove the sale deed dated 29 .12.1981 in accordance with law and hence 
no decree could be passed in respondent's favour irt relation to the suit D 
land on the strength of such unproved sale deed. 
12. Felt aggrieved by the judgment of the Appellate Court, the 
respondent (plaintiff) filed Second Appeal under
Section 100 of the Code 
of Ci vii Procedure Code, 1908 (hereinafter referred to as "the Code") in 
the High Court (Nagpur Bench). The High Court framed the following 
question oflaw: 
"Whether it is necessary for the plaintiff appellant to 
examine his vendor and attesting witnesses to prove his 
title to the suit propertyJn a suit for recove_ry of possession 
against the encroacher when there is a registered sale deed 
executed by his vendor in his favour?" 
13. The appellant (defendant), however, did not file any cross 
objection under Order 41 Rule 22 of the Code to challenge the adverse 
findings recorded by the First Appellate Court and, therefore, those 
findings attained finality. 
14 .. By impugned judgment, the High Court allowed the Second 
Appeal and while setting aside of the judgments/decrees of the two 
courts below decreed the appellant's suit. The High Court held thlit the 
respondent has proved the sale deed as required in iaw and, therefore, 
E 
F 
G 
he was entHled to claim decree for possession on the basis of the sale 
deed (Ex.P-31) as an owner against the appellant. Felt aggrieved, the 
H
1034 
SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
A defendant filed the present appeal by way of special leave against the 
judgment of the High Court before this Court. 
B 
c 
D 
E 
F 
15. Heard Mr. Anshuman Singh, learned counsel for the appellant 
and Mr. Rahul Chitnis, learned counsel for the respondent. 
16. Having heard the learned counsel for the parties and on perusal 
of the record of the case, we are inclined to dismiss the appeal as, in our 
opinion, the High Court is right in its reasoning and its conclusion. 
17. As observed supra, the only question involved in the appeal 
before the High Court was whether the sale deed dated 29.12.1981 
(Ex.P-31) in relation to the suit land was duly proved by the respondent. 
18. The Trial Court and the First Appellate Court held that since 
the sale deed was not properly proved, the respondent's suit was dismissed 
whereas the High Court reversed the said finding and held that the sale . 
deed was duly proved as required in law and accordingly passed the 
decree for possession against the appellant in relation to the suit land. 
19. We agree with the reasoning of the High Court. In our opinion 
also, the respondent was able to prove the sale deed and was, therefore, 
rightly held entitled to claim decree for possession of the suit land on the 
strength of the sale deed dated 29.12.1981 (Ex.P-31) against the 
appellant. 
20. It is for the reasons that, firstly, the execution of the sale deed 
does not need any attesting witness
like the gift deed, which requires at 
least two attesting witnesses at the time of its execution as per Section 
123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of 
the Evidence Act, 1872, which deals with the examination of the attesting 
witness to prove the execution of the document, does not apply to sale 
deed, which is governed by Section 54 of the Transfer of Property Act. 
21. It is not in dispute that the appellant (defendant) in this case 
did not dispute the respondent's vendor's (Housing Society) title. On 
the other hand, she, in clear terms, admitted their title in her written 
G statement. It is also not in dispute that the respondent entered in witness 
box and proved its execution and further did not raise any objection 
when the sale deed was being exhibited in evidence and indeed, rightly 
for want of any legal basis. 
22. In the light of these admitted facts, we.are of the view that the 
H sale deed dated 29.12.1981 was duly proved by the respondent and was,
SMT. BAYANABAI KAWARE v. RAJENDRA S/o BABURAO 
1035 
DHOTE [ABHAY MANOHAR SAPRE, J.] 
therefore, rightly relied on by the High Court for passing a decree of A 
possession against the appellant. It was, in our opinion, a clear. case 
where the respondent had a better title of the suit land as against the 
appellant, who had no title to the suit land. All that the appellant had was 
a plea of adverse possession which was not held proved. 
23. This being the only point involved in the case and the same 
B 
having been answered .against the appellant, we find no merit in the 
appeal. Jhe appeal thus fails and is accordingly dismissed. 
Ankit Gyan 
Appeal dismissed.