JAGANNATH KASHINATH PATIL

NARA YAN BALUGAIKAR

SEPTEMBER, 24, 1996

[K. RAMASWAMY, K. VENKATASWAMI AND

G.B. PATTANAIK, JJ.)

Suit-Title to property-Proof-Plaintiff respo11de11t filed suit against defe11da11t-appellant for removi11g constrnctions and i11teferi11g with his possessio11 over the plot in dispute-Plailltiff claiming title as successor of his C matemal gra11dmother, ow11er of the property-Mortgagee had delivered possession of the property to the plai11tiff-Appella11t failing to file any proof of title except his oral testimo11y-Held the trial court a11d the Higlr Court were right in decreei11g tire suit-Tire plai11tiff/respondent lravi11g been found as a successor to the property from his matemal gr011d-mother a11d was in posses- D sion of the property delivered by the mortgagee, succession t~ the estate of grand-motlier fumislted him the title to the property and delivery of possession to him by tlie mortgagee rein/ ore es his lawful title to and legal possession of tire property-Respondent is entitled to have tire possession retained without any inter-/ erence as sought for and the i11jrmctio11 granted by tire trial Court is comet in law.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. l205 of 1980.

From the Judgment and Order dated 30.1.79 of the Bombay High Court in SA. No. 553 of 1971.

V.B. Joshi for the Appellant.

V.N. Ganpule, Makarand D. Adkar, S.D. Singh, Kumar Parimal and Ejaiz Maqbool for the Respondent.

The following Order of the Court was delivered :

This appeal by special leave arises from the judgment of the single Judge of the Bombay High Court made on January 30, 1979 in Second Appeal No. 553 of 1971. H 689

SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A The admitted facts are that the respondent filed suit against the appellant for removal of construction and to restrain him from interfer· ing with his possession and enjoyment of land admeasuring 50' x 30'

marked by letter "A B C & D" in the sketch {Exh. 44) claiming title to the said plot. The trial Court decreed the suit, on appeal it was -reversed.

B In the second appeal, the High Cpurt set aside the decree of the ·

appellate Court and confirmed the decree of the trial Court. Thus, this appeal by special leave.

It was not disputed during the cross-examination of the witnesses that c the property originally belongs to Rukmanibai, the maternal grand-mother of the respondent who had executed possessory mortgage in favour of one Pukharaj and the said Pukharaj had given back the mortgage deed and also delivered possession of the house to the respondent. The High Court, therefore, has taken into consideration all these factual matrix and con-

D eluded that the respondent-plaintiff has succeeded to the estate of his grand mother and given possession to him by the mortgagee and remained in possession of the property. The appellant had constructed one room and w.c. therein for convenient enjoyment of his property. Though the appellant had set up his own title, he has not filed any proof of title except his oral

E testimony. The appellate Court has concluded that the mortgage does not create any title and proper evidence should have been produced to establish title of the respondents and on that premise set aside the judgment and decree of the trial Court.

Sri Joshi, learned counsel for the appellant, contended that the view F of the appellate Court on the above facts is correct in law and the High Court was not justified to interfere with the finding of fact recorded by final Court of facts. We find no force in the contention.· The plaintiff/respondent having been found as a successor to the property from his

G maternal grandmother and was in possession of the pr(1{erty deliverd b Pukh h " I{ , " .rl I 10 JoorJRl; M li.b3 y ara.J, t e mortgagee, succession to t e estate o gra -me:> r

furnished him the :t\~1E1 .~~., t~7 J?.~9I?flf~ 1a!f1~, ~7liv9rx Pt.tR9Afff~¥~"f-O him by the mortgagee reinforces his lawful title to and legal possession of the

1Jf.9IJ.r!N;1 'Oi~!'~~'iU\d<;µt is entitled ta:. have)1qe '(fi00sjoruiii6tained

~ .· . .

wjb.oJLt APY!·~efm-~~¥ 1as sougbufor and the .injutgrarltel:l1 brJlhl.

H trial Court is correct in law. The High Court rigtiH~ allowea .tlid ~4

J.KPATILv. NARAYANBALUGAIKAR 691

appeaL The appellant is directed to remove the offending structure put A up on the said property within a period of three months from today. On default, the respondent will be at liberty to have it removed in execution of the decree and recover the costs incurred therefor from the. appellant.

The appeal is accordingly dismissed. No costs.

R.P.

Appeal dismissed.

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