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Bhujanga Abba Patil (since deceased) Vs. Dnyanu Ramchandra Powar (since deceased) through his legal heirs and representatives and Others - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 209 of 1994
Judge
AppellantBhujanga Abba Patil (since deceased)
RespondentDnyanu Ramchandra Powar (since deceased) through his legal heirs and representatives and Others
Excerpt:
1. by this petition filed under section 100 of the code of civil procedure, 1908, the appellants now through legal heirs and representatives (original plaintiffs) have impugned the judgment and decree dated 29th july 1993 passed by the learned 4th additional district judge, kolhapur allowing the regular civil appeal no.277 of 1987 filed by the respondents (original defendants) and dismissing the cross-objection filed by the appellants. the first appellate court has set aside the judgment and decree dated 16th october 1987 passed by the learned iind joint civil judge, junior division, kolhapur in regular civil suit no.217 of 1979 filed by the original plaintiffs inter alia praying for injunction and for possession which was decreed by the learned trial judge. the parties in this judgment.....
Judgment:

1. By this petition filed under Section 100 of the Code of Civil Procedure, 1908, the appellants now through legal heirs and representatives (original plaintiffs) have impugned the judgment and decree dated 29th July 1993 passed by the learned 4th Additional District Judge, Kolhapur allowing the Regular Civil Appeal No.277 of 1987 filed by the respondents (original defendants) and dismissing the cross-objection filed by the appellants. The first appellate Court has set aside the judgment and decree dated 16th October 1987 passed by the learned IInd Joint Civil Judge, Junior Division, Kolhapur in Regular Civil Suit No.217 of 1979 filed by the original plaintiffs inter alia praying for injunction and for possession which was decreed by the learned trial Judge. The parties in this judgment are described as per their original status in the proceedings before the learned trial Judge. Some of the relevant facts for the purpose of deciding this second appeal are as under:-

2. It was the case of the plaintiffs that the suit field bearing Revision Survey No.24/1 admeasuring 4 acres 9 gunthas plus khara 11 ares assessed at Rs.19.81 now block no.61 situated at Village Aadur, Tal.Karveer, Dist.Kolhapur is owned and was in use and occupation of the plaintiffs. The said field was purchased by the plaintiffs from Mahadev Dattatray Chavan by registered sale deed on 27th May 1964 and since then the plaintiffs were in use and occupation of the said field.

3. It was the case of the plaintiffs that adjoining to the said field owned by the plaintiffs on the western side, there is field of the defendants bearing Revision Survey No.24/1 now block no.30. It was the case of the plaintiffs that the field of the plaintiffs and field of the defendants were from original Revision Survey No.24.

4. It is the case of the plaintiffs that the field of the defendants was admeasuring 6 acres 29 gunthas which was situated towards western side of the suit property. Before the year 1959, Hissa measurement took place at village Aadur and the suit property was numbered as revision Survey no.24 Hissa No.2. It was the case of the plaintiffs that under the wrong description of the property mentioned in the sale deed of the defendants, the defendants encroached upon the suit property which belonged to and was purchased by the plaintiffs.

5. It was the case of the plaintiffs that the defendants gave threat to the plaintiffs on 1st March 1979. The plaintiffs were constrained to file the suit for perpetual injunction against the defendants inter alia praying for injunction restraining the defendants from resorting to high handed action. The plaintiffs made an application for amendment in the plaint. It was averred that the plaintiffs' suit field block no.61 was inclusive of north-south bandh running between the field of the plaintiffs and the defendants. In the survey map, it has been shown that the defendants had encroached to the extent of 45 ares in the field of the plaintiffs. It was alleged in the plaint that the encroachment had been made by the defendants some time in the month of January 1976. The plaintiffs thus prayed for possession of the encroached portion from the defendants and also prayed for future mesne profits from the date of filing of the suit.

6. The defendant nos.1, 6 and 7 filed written statement resisting the said suit. The said written statement was adopted by the defendant nos.2 to 5 and 8 by filing purshis. The defendants had also filed an additional written statement.

7. The learned trial Judge framed seven issues. The plaintiffs examined Dattatraya Ganapati Parit, plaintiff no.3 and also examined Surveyor Mahadev Dhage. The defendants examined Tukaram Ramchandra Power, defendant no.6 and one Yeshwant Dattoba Chavan.

8. The learned trial Judge passed a judgment and decree dated 16th October 1987 and decreed the said suit filed by the plaintiffs and directed the defendants to hand over the possession of 45 ares to the plaintiffs as shown in the sketch with red pencil shade and marked as C. D. F. E.

9. Being aggrieved by the said judgment and decree dated 16th October 1987 passed by the learned trial Judge, the defendant nos.1 to 8 filed Regular Civil Appeal (277 of 1987) in the Court of learned District Judge, Kolhapur at Kolhapur. The original plaintiffs filed a cross-objection in the said appeal. The learned 4th Additional District Judge, Kolhapur framed eight points for determination and allowed the said Regular Civil Appeal (277 of 1987) filed by the defendant nos.1 to 8 with costs and dismissed the cross-objection filed by the plaintiffs. By the said judgment and decree dated 29th July 1993, the first appellate Court has set aside the judgment and decree passed by the learned trial Judge on 16th October 1987 in Regular Civil Suit No.217 of 1979. This judgment and decree dated 29th July 1993 passed by the first appellate Court is impugned by the plaintiffs in this second appeal filed under Section 100 of the Code of Civil Procedure, 1908. The original plaintiff no.1 expired during the pendency of this second appeal and thus his legal heirs and representatives brought on record.

10. The first appellate Court while admitting this second appeal formulated a substantial question of law as under:-

The question as to whether the boundaries or the area mentioned in a sale deed is to prevail will have to be conclusively resolved.

11. Mr.Pawar, learned counsel appearing for the original plaintiffs invited my attention to the averments made in the plaint, copy of the Kabjepatti Panchnama, mutation entry and various portions of the oral evidence led through various witnesses of both the parties. He submits that initially the plaintiffs had filed a suit simplicitor for perpetual injunction but the plaint was subsequently amended. The plaintiffs had applied for removal of encroachment against the defendants. It is submitted by the learned counsel for the plaintiffs that larger plot forming part of original block no.24 jointly belonged to Yeshwant Dattoba Chavan and his step brother Mahadev Dattatray Chavan. There was a compromise decree in the said dispute filed by the said two brothers.

12. The T.I.L.R., Kolhapur was appointed to divide the property between the said two brothers. The said T.I.L.R. after taking measurement of the property had divided the said plot bearing original Gat no.24 into two parts which were specifically shown as Gat No.24/1 and 24/2. 6 acres and 20 gunthas land was given to the said Yeshwant Dattoba Chavan and 4 acres and 30 gunthas land was given to his step brother Mahadev Dattatray Chavan who transferred the said land coming to his share vide a sale deed in favour of the defendants. It is submitted that in the sale deed executed by the said Mahadev Dattatray Chavan in favour of the defendants, the area of the land was clearly mentioned as 6 acres and 20 gunthas. In support of this submission, learned counsel for the plaintiffs invited my attention to the Kabjepatti prepared in the year 1957. It is submitted by the learned counsel for the plaintiffs that the defendants, however, encroached upon the portion of the land which was purchased by the plaintiffs from the brother of the said Mahadev Dattatray Chavan. The encroachment was noticed sometime in the year 1976. The plaintiffs had accordingly filed a suit initially for perpetual injunction and later applied for removal of the encroachment by the defendants.

13. Learned counsel for the plaintiffs invited my attention to the issues framed by the learned trial Judge and also various findings rendered in the judgment and decree passed by the learned trial Judge on 16th October 1987. He submits that the learned trial Judge has recorded a finding that on the date of suit, plaintiffs were in possession of Revision Survey No.24/2 excepting 45 ares. The learned trial Judge held that it was not correct that the defendants made encroachment of 45 ares in January 1976. However, their possession was unlawful.

14. In so far as the issue as to whether the plaintiffs were entitled to decree for perpetual injunction, the learned trial Judge held that the said issue did not arise. The learned trial Judge held that the plaintiffs were entitled to decree for possession of encroachment portion against the defendants. The learned trial judge rejected the claim for mesne profit against the defendants. The learned trial Judge noticed that the defendants had made encroachment only to the extent of 45 ares land of the plaintiffs. The plaintiffs had also filed a suit bearing No.327 of 1976 against the defendants inter alia praying for injunction from disturbing the use and occupation of the plaintiffs in respect of the land bearing Revision Survey No.24/2 admeasuring 4 acres 20 gunthas. The said suit was withdrawn by the plaintiffs.

15. It is submitted by the learned counsel for the plaintiffs that the first appellate Court has erroneously held that the boundaries mentioned in the sale deed executed by the erstwhile owner in favour of the defendants would prevail the measurement mentioned therein. He submits that since the measurement of the land as 6 acreas 20 gunthas was specifically mentioned in the sale deed as the title conferred upon the defendants in the specific portion of the land, the boundaries mentioned in the sale deed would not prevail. He submits that T.I.L.R. after dividing the property physically had given specific area of the land admeasuring 6 acres 20 gunthas to the erstwhile owner Mahadev Dattatray Chavan. The said erstwhile owner had subsequently sold the area to the defendants. He submits that the first appellate Court relied upon various judgments while holding that the boundaries mentioned in the sale deed would prevail over the measurement mentioned in the sale deed erroneously. He submits that none of those judgments were applicable to the facts of this case in view of the fact that the area of suit plot was clearly mentioned in the sale deed. He submits that the false description of the boundaries in the sale deed thus would not prevail over the exact measurement mentioned in the sale deed. He submits that even otherwise the western boundaries mentioned in the sale deed of the defendants does not indicate that the land was sold right upto the footpath.

16. It is submitted by the learned counsel for the plaintiffs that vendor of the suit property who executed sale deed in favour of the defendants in his evidence clearly admitted that he had sold the land admeasuring 6 acres 20 gunthas to the defendants. He submits that since the suit filed by the plaintiffs was based on title, Article 65 of the Limitation Act was applicable. The suit filed by the plaintiffs was thus within the time prescribed therein. He submits that the plaintiffs can file a suit any time for removal of encroachment based on title. The defendants have to prove that their title in respect of encroached portion was hostile to the title of the plaintiffs.

17. It is submitted that the plaintiffs had proved their title in respect of the entire property which was sold in favour of the plaintiffs by erstwhile owner including the encroached portion which was illegally occupied by the defendants. Learned counsel for the plaintiffs placed reliance on the judgment of the Supreme Court in the case of Indira Vs. Arumugam and Anr., reported in (1998) 1 SCC 614 and in particular paragraph 4 in support of his submission that since the plaintiffs had filed a suit based on their title for possession and since the plaintiffs had established their title in respect of the suit property including the encroached portion and since the defendants had failed to prove their adverse possession for prescriptive period, the plaintiffs cannot be non-suited on the ground of limitation.

18. Learned counsel for the plaintiffs placed reliance on the judgment of the Supreme Court in the case of P.T. Munichikkanna Reddy and Ors. Vs.Revamma and Ors., reported in 2007 (6) Mh.L.J. 336 (SC) and in particular paragraphs 33, 34, 57 and 58 and would submit that once the plaintiffs had proved their title in respect of the suit property, the onus of proof would be on the defendants to prove claims of their title by adverse possession. He submits that the defendants have failed to prove that adverse possession was in continuity, in publicly and that their possession became adverse to the title of the plaintiffs which they failed to prove.

19. It is lastly submitted that the first appellate Court erroneously rejected the cross-objection filed by the plaintiffs and that the impugned judgment and decree passed by the first appellate Court allowing the appeal filed by the defendants is perverse and contrary to the law and thus deserves to be set aside.

20. Mr.Patil, learned counsel appearing for the defendants, on the other hand, submits that admittedly the suit filed by the plaintiffs was based on the plea of encroachment. He submits that the sale deed executed by the erstwhile owner in favour of the plaintiffs was much after the possession of the suit property handed over to the defendants by the erstwhile owner of the said portion of the land and thus there was no question of the defendants encroaching upon any part of the suit property as alleged by the plaintiffs. He submits that the suit filed by the plaintiffs on the basis of the alleged encroachment of the portion of the land by the defendants itself was thus not maintainable and was thus rightly dismissed by the first appellate Court. He submits that owner of the suit property had admitted in his evidence that the defendants were placed in possession of the land admeasuring 7 acres 32 gunthas which was inclusive of the land admeasuring 45 ares which was alleged to be the encroached portion according to the plaintiffs. He submits that admittedly the plaintiffs had purchased the suit property only in the year 1964.

21. It is submitted by the learned counsel for the defendants that the original plaintiffs and the original defendants were tenants prior to 1953 in respect of the land bearing Gat No.24 and were cultivating the said land together. The original defendants had purchased the property under the sale deed executed in the year 1953 admeasuring 6 acres 20 gunthas from the erstwhile owner of the suit property. He submits that in the said sale deed, the erstwhile owner had admitted that he had put the original defendants in possession of 7 acres 32 gunthas as shown in the boundaries described in the sale deed.

22. It is submitted by the learned counsel for the defendants that since the defendants were in possession of the area i.e. 45 ares claimed to be owned by the plaintiffs since prior to the date of the execution of the sale deed in favour of the plaintiffs by the erstwhile owner, the remedy of the plaintiffs would not be for removal of the alleged encroachment against the defendants but was against their vendor who had alleged to have given possession of lessor area and not the actual area sold in their favour.

23. Learned counsel for the defendants invited my attention to the findings recorded by the first appellate Court and in particular paragraph 11 of the judgment and decree dated 29th July 1993 and submits that the first appellate Court has rightly rendered a finding that the defendants were in possession of Gat No.30 including the read portion C D F E i.e. the alleged encroached portion since 1953. He submits that the first appellate Court has rightly considered the deposition of the vendor in so far as the issue of boundaries of the plot mentioned therein is concerned and has rightly rendered a finding that the evidence on record clearly showed that since the defendants had purchased the portion of the land bearing Revision Survey No.24 from Yeshwant Dattoba Chavan, they were in peaceful possession of that portion of Revision Survey No.24 with the specific boundaries. It is held that the plaintiffs were never in possession of the land which was shown as encroached land by the defendants admeasuring 45 ares and the same was in possession of the defendants since beginning i.e. the date when they had purchased the land from Yeshwant Dattoba Chavan on 26th May 1953.

24. Learned counsel for the defendants also placed reliance on paragraphs 21 and 22 of the impugned judgment and decree in which it is held that since the plaintiffs were never in possession of the alleged encroached land of 45 ares and since the defendants were in possession of the land since beginning as it was part of the land purchased by them from Yeshwant Dattoba Chavan, it could not be said that they had made encroachment in respect of the said land. The first appellate Court has also held that the plaintiffs had no right in the land shown in red portion of the map exhibit-89 and were thus not entitled for perpetual injunction against the defendants.

25. Learned counsel for the original plaintiffs in rejoinder invited my attention to the evidence of Yeshwant Dattoba Chavan, erstwhile owner of the plot bearing Revision Survey No.24. He submits that in his examination-in-chief, the said Yeshwant Dattoba Chavan had admitted that out of the said plot, he had sold 6 acres 20 gunthas to the defendants and in respect thereof, there was the sale deed executed. The said witness also referred to the suit bearing no.49 of 1953 filed by his step brother Mahadev Dattatray Chavan and others for partition. The said land was also included in the said suit for partition. The partition was effected through Collector. In his cross-examination, he had admitted that there was a compromise between the said Yeshwant Dattoba Chavan and the said Mahadev Dattatray Chavan and others. 6 acres 20 gunthas were to be kept with Yeshwant Dattoba Chavan and 4 acres 19 gunthas were given to Mahadev Dattatray Chavan. The said compromise had taken place in the year 1954. In his cross-examination, he had also admitted that at the time of sale of 6 acres 20 gunthas in favour of the defendants, its assessment was also mentioned.

26. It is submitted by the learned counsel for the plaintiffs that it was thus clear beyond reasonable doubt that the evidence of erstwhile owner from whom the defendants claimed title in respect of the suit property had clearly admitted in his evidence that he was given 6 acres 20 gunthas under the said compromise decree in a partition suit bearing no.49 of 1953 and his step brother through whom the plaintiffs were claiming right, title and interest was given the land admeasuring 4 acres 19 gunthas. He submits that the first appellate Court has rendered a finding in favour of the defendants that erstwhile owner of the suit property had sold larger area in favour of the defendants is ex facie perverse. He submits that since the said erstwhile owner Yeshwant Dattoba Chavan himself had been granted the land 6 acres 20 gunthas, he could not have handed over the possession of the larger area than what was allotted to him under the said compromise decree passed in the partition suit.

27. Learned counsel for the plaintiffs invited my attention to Kabjepatti which was prepared when the partition of the property was effected by T.I.L.R. pursuant to the compromise decree passed in suit bearing no.49 of 1953 and also placed reliance on the mutation entry carried out after such physical partition of the said property. He submits that the learned trial Judge has rightly placed reliance on such document to which my attention is invited by the learned counsel for the plaintiffs and would submit that it was rightly held by the learned trial Judge after considering the oral and documentary evidence that the erstwhile owner of the land got possession of 4 acres 30 gunthas which was given by him to the defendants. He submits that the first appellate Court has not considered the oral and documentary evidence in right perspective and thus the said judgment and decree of the first appellate Court deserves to be set aside.

REASONS AND CONCLUSIONS:-

28. A perusal of the plaint filed by the plaintiffs indicates that it was the case of the plaintiffs that the defendants had encroached upon the portion of the land admeasuring 45 ares in the month of January 1976 which encroachment was shown in the measurement map. There is no dispute that the original plot was bearing Survey No.24. It was the case of the defendants themselves that upto 1953, the plaintiffs and the defendants were jointly cultivating the land bearing original Survey No.24. The defendants purchased western portion of the said land from Yeshwant Dattoba Chavan vide a registered sale deed. It was the case of the defendants that when the said property was purchased by the defendants, the said portion was not measured. In his oral evidence, one of the defendants i.e. Tukaram Ramchandra Power deposed that he was in possession of the land upto footpath and since the date of possession, he continued to be in possession of that portion of land.

29. In the evidence, the said witness relied upon the compromise deed entered into between Yeshwant Dattoba Chavan and his step brother Mahadev Dattatray Chavan. As per the Darkhast, the said property was partitioned and was given the revised Survey Nos.24/1 and 24/2. In that Darkhast, a map was drawn. In his cross-examination, the said witness had admitted that in the sale deed, it was stated that the defendants had purchased the land of 6 acres 20 gunthas and in 7x12 extract, they had not been shown to be in possession of 7 acres 32 gunthas. He admitted that in 7x12 extract of 1954-55 to 1956-57, they had been shown in possession of 6 acres 20 gunthas and the plaintiffs were shown in possession of 4 acres 29 gunthas.

30. The said witness further admitted that the Survey No.24/1 was converted into Block No.30 and the said block was admeasuring 6 acres 29 gunthas whereas, Survey No.24/2 was formed into Block No.61 admeasuring 4 acres 30 gunthas. He did not make any complaint anywhere that though he was alleged to be in possession of 7 acres 32 gunthas he had been shown to have been occupied the land admeasuring 6 acres 30 gunthas. He further admitted in his cross-examination that the erstwhile owner had sold 6 acres 20 gunthas to the defendants on 26th May 1953 vide the said sale deed and they became owner through Yeshwant Dattoba Chavan.

31. A perusal of the evidence of the said Yeshwant Dattoba Chavan who was examined as a witness by the defendants and who was the erstwhile owner of the land admeasuring 6 acres 20 gunthas which were sold in favour of the defendants clearly indicates that the said witness admitted in his evidence that the contents of the sale deed executed in favour of the defendants were correct. He admitted that under the said sale deed, he had sold to the defendants the land comprises of 6 acres 20 gunthas. He also referred to the partition suit bearing no.49 of 1953 filed by his step brother Mahadev Dattatray Chavan and others inter alia praying for partition. He also admitted that the land bearing original Survey No.24 was also the subject matter of the said suit.

32. The said erstwhile owner admitted that there was a compromise between him and his step brother Mahadev Dattatray Chavan and others. The land admeasuring 6 acres 20 gunthas was allotted to him out of Survey No.24 and the land admeasuring 4 acres 19 gunthas was allotted to his step brother Mahadev Dattatray Chavan and others. It is thus clear beyond reasonable doubt that on physical partition of the suit property carried out through T.I.L.R. pursuant to the compromise decree passed in the suit bearing no.49 of 1953, Yeshwant Dattoba Chavan was allotted the land admeasuring 6 acres 20 gunthas whereas, his step brother Mahadev Dattatray Chavan and others were allotted the land admeasuring 4 acres 19 gunthas and were also handed over the possession of their respective portion of the land.

33. It is also not in disupte that the said area was also mentioned in Kabjepatti and based thereon, the name of the respective owners were recorded in the 7x12 extract which also showed their possession of the respective area allotted to them under the said compromise decree passed in partition suit. In my view, since the erstwhile owner through whom the defendant were claiming right, title and interest had admittedly been given the land admeasuring 6 acres 20 gunthas and was handed over possession of that specific area under the partition deed which partition was carried out by metes and bounds by the T.I.L.R., he could not have handed over possession of the land admeasuring 7 acres 32 gunthas to the defendants. The witness examined by the defendants also admitted that the names of the defendants were shown in the 7x12 extract only in respect of the 6 acres 20 gunthas and not the area falsely claimed by the defendants in the suit. He did not make any grievance alleging that though he was in possession of the larger area, his name was wrongly shown in the 7x12 extract only in respect of the land admeasuring 6 acres 20 gunthas.

34. A perusal of the order passed by the learned trial Judge indicates that the learned trial Judge has framed seven issues. After considering the oral and documentary evidence led by the parties, the learned trial Judge has held that the defendants did not dispute that they had purchased the plot bearing Revision Survey No.24/2 admeasuring 6 acres 29 gunthas as was clear from the sale deed being exhibit-97 executed between the defendants and the erstwhile owner. The defendants however claimed to be in possession of 7 acres 32 gunthas since the date of purchase in 1953. The learned trial Judge has rendered a finding that the defendants had failed to produce any document to indicate that they were cultivating 7 acres 32 gunthas since 1953. The 7x12 extract produced by the defendants also indicated that they were in use and occupation of 6 acres 29 gunthas from 1974-75 till 1978-79. It was the case of the plaintiffs that the defendants were in possession of encroached portion since 1953 as claimed by the defendants.

35. Learned trial Judge also considered the report submitted by the Surveyor who was appointed to make survey bearing Revision Survey Nos.24/1 and 24/2. The Surveyor Mr.Mahadev was examined as PW1. After considering the surveryor's report, the learned trial Judge has rendered a finding that the defendants had made encroachment in the land bearing Revision Survey No.24/2 belonging to the plaintiffs to the extent of 45 ares as shown in the sketch in red pencil shade and marked CD F E.

36. Learned trial Judge accordingly held that the plaintiffs had proved their possession of land bearing Revision Survey No.24/2 except 45 ares. Learned trial Judge held that it was not correct that the defendants made encroachment of 45 ares in January 1976. However, their possession was unlawful.

37. A perusal of the judgment and decree of the first appellate Court indicates that the learned trial Judge has formulated eight points for determination. The first appellate Court after considering the evidence of erstwhile owner Yeshwant Dattoba Chavan of Revision Survey No.24/1 i.e. Gat No.30 and Revision Survey No.24/1 i.e. Gat No.61 has held that the intention of the said Yeshwant Dattoba Chavan was to sell the land to the defendants upto footpath. It is held that the said evidence clearly showed that the said erstwhile owner had sold the portion of his land not of particular area admeasuring 6 acres 20 gunthas but had sold particular area having the particular boundaries.

38. The first appellate Court has held that evidence of Tukaram Ramchandra Power (DW-1), Yeshwant Dattoba Chavan (DW-2) indicated that the defendants were in possession of portion of the land of the original Revision Survey No.24 having those boundaries which were enumerated in the sale deed. The first appellate Court accordingly held that boundaries described in the sale deed would prevail over the measurement written in it. In my view, the finding rendered by the first appellate Court to the extent that the said erstwhile owner Yeshwant Dattoba Chavan had sold the portion of the land not of particular area admeasuring 6 acres 20 gunthas but had sold particular area having the particular boundaries is ex facie perverse and is contrary to the admissions made by the said Yeshwant Dattoba Chavan and also the evidence of Tukaram Ramchandra Power.

39. The said Yeshwant Dattoba Chavan had categorically admitted in his examination-in-chief itself that he had sold 6 acres 20 gunthas to the defendants out of Survey No.24. The said erstwhile owner also admitted in his evidence that there was a compromise between him and Mahadev Dattatray Chavan and others. 6 acres 20 gunthas were allotted to the said Yeshwant Dattoba Chavan whereas, the land admeasuring 4 acres 19 gunthas were given to Mahadev Dattatray Chavan. Tukaram Ramchandra Power (DW-1) examined by the defendants also in his cross-examination admitted that in the 7x12 extract, he had not been shown to be in possession of 7 acres 32 gunthas. He admitted that in 7x12 extract of Survey No.24/1, the land of 6 acres 20 gunthas was shown and in respect of Survey No.24/2, the land of 4 acres 29 gunthas was shown. He did not make any complaint to any authority contending that though he was in possession of 7 acres 32 gunthas, his name was shown in the 7x12 extract occupying less than of 7 acres 32 gunthas.

40. In my view, the findings thus rendered by the first appellate Court are totally overlooking and contrary to the deposition made by witnesses examined by the defendants and more particularly erstwhile owner of the said property who was the best witness to prove the area of the land sold to the defendants and the area in respect of which possession was handed over to the defendants. In my view, similarly the finding of the first appellate Court that the possession of the portion of the land shown in red colour by letters C D F E in the map Exhibit-89 was in possession of the defendants as owner since beginning or that the plaintiffs were never in possession of the said portion admeasuring 45 ares is ex facie perverse and contrary to the documentary as well as oral evidence on record.

41. In my view, since the erstwhile owner Yeshwant Dattoba Chavan himself was allotted the land admeasuring 6 acres 20 gunthas while effecting partition of the property bearing original Survey No.24 through T.I.L.R. which documents were placed on record and were duly proved, the said Yeshwant Dattoba Chavan could not have alienated the land more than what was allotted to him in partition or could not have handed over the possession of the land more than what was allotted to him. The finding of the first appellate Court, in my view, is totally contrary to the admitted and proved evidence on record and thus deserves to be set aside.

42. In so far as the view taken by the first appellate Court that the boundaries mentioned in the sale deed in this case would prevail over the measurement shown in the sale deed is concerned, in my view, the said observation made by the first appellate Court is also totally perverse. The erstwhile owner of the said property himself admitted in the examination-in-chief and also in the cross-examination that he had sold the land admeasuring 6 acres 20 gunthas to the defendants vide a sale deed which was duly registered, the boundaries of the plot described in the sale deed showing the larger area, if any, was of no significance.

43. In my view, since the area of the plot agreed to be sold to the defendants by the erstwhile owner was clearly mentioned in the sale deed which was duly admitted and confirmed by the erstwhile owner of the said land himself and also admitted and confirmed by the witnesses examined by the defendants, reference to the boundaries of the plot mentioned in the sale deed as conclusive by the first appellate Court is totally perverse and illegal. In my view, only if the area of the plot would not have been mentioned clearly in the sale deed, in that event, the boundaries mentioned in the sale deed would be of some relevance and not otherwise. The learned counsel for the plaintiffs is right in his submission that since specific area of the land was sold by the erstwhile owner to the defendants which was specifically mentioned in the sale deed, the finding/observation of the first appellate Court that the boundaries would prevail is ex facie perverse and the said submission deserves acceptance.

44. The Madras High Court in the case of Dina Malar Publications, A Tamil Daily, Reptd., by its Partner, R.K. Krishnamoorthy Vs. The Tiruchirapalli Municipality, Reptd., by its Executive Authority, The Commr., reported in (1983) 2 MLJ 340 (Madras) has held that in case of doubtful or varying extents in the documents of title relating to the property, boundaries should be preferred to the extent. It is held that this principle can be applied only to a case where there is an element of doubt with reference to the extent of the area sold. In my view, since the area of the land sold to the defendants was absolutely clear in the sale deed itself which was duly proved by the documentary as well as the oral evidence, the question of the boundaries prevailing over the area of the land mentioned in the sale deed did not arise. In my view, the principles laid down by the Madras High Court in the case of Dina Malar Publications, A Tamil Daily, Reptd., by its Partner, R.K. Krishnamoorthy squarely apply to the facts of this case. I am respectfully agreement with the views expressed by the Madras High Court.

45. Supreme Court in the case of P.T. Munichikkanna Reddy and Ors. (supra) has held that the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is held that once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. It is held that adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. It is held that it is thus important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. In my view, the judgment of the Supreme Court in the case of P.T. Munichikkanna Reddy and Ors. (supra) squarely applies to the facts of this case. In my view, the defendants miserably failed to prove their adverse possession in respect of the suit property.

46. Supreme Court in the case of Indira Vs. Arumugam and Anr. (supra) has held that in a suit for possession of immovable property based on title, initial burden is on the plaintiffs to prove his title. Once the title is established on the basis of relevant documents and other evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. In my view, in this case, title of the plaintiffs in respect of 45 ares land was not disputed by the defendants. The plaintiffs had even otherwise proved their title in respect of the entire land of 4 acres 19 gunthas which includes the said 45 ares plot of land. The onus was thus on the defendants to prove that they were in adverse possession of the land for prescriptive period which was adverse to the title of the plaintiffs. The principles laid down by the Supreme Court in the case of Indira Vs. Arumugam and Anr. (supra) squarely apply to the facts of this case. I am respectfully bound by the said judgment.

47. In so far as the substantial question of law framed by this Court while admitting the second appeal is concerned, for the reasons recorded aforesaid, in my view, the boundaries or the area mentioned in the sale deed entered into between the defendants and the erstwhile owner of the said property would not prevail over the area mentioned in the sale deed in view of the exact area of property sold having been clearly mentioned in the sale deed. The said substantial question of law is answered accordingly.

48. In my view, since the first appellate Court had not dealt with and considered the oral and documentary evidence led by the parties in the right perspective and has on the other hand decided ex facie contrary to the documents and oral evidence and has rendered various findings which are ex facie perverse, such perverse findings can be interfered with by this Court by exercising powers under Section 100 of the Code of Civil Procedure, 1908.

49. I therefore pass the following order:-

(i) The impugned judgment and decree dated 29th July 1993 passed by the 4th Additional District Judge, Kolhapur allowing the Regular Civil Appeal No.277 of 1987 is set aside;

(ii) Civil Appeal No.277 of 1987 filed by the original defendants is dismissed;

(iii) The cross-objection filed by the original plaintiffs is allowed;

(iv) The judgment and decree dated 16th October 1987 passed by the learned IInd Joint Civil Judge, Junior Division, Kolhapur in Regular Civil Suit No.217 of 1979 is upheld;

(v) Second Appeal No.209 of 1994 is allowed in aforesaid terms;

(vi) There shall be no order as to costs.


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