Bombay High Court
Shri. Dhondiba @ Babu Khandu Khaire ... vs Shri. Parshuram Genu Khaire And Ors on 12 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
23 SA-st-35249-15-2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL (st.) NO. 35249 OF 2015
Dhondiba @ Babu Khandu Khiare
Since deceased through legal heirs : ...Appellant.
Versus
Parshuram Genu Khiare and Others. ...Respondents.
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Mr. K. B. Katake i/b Mr. Ajinkya Udane for the appellant.
Mr. Manish Kelkar i/b Mr. Dhananjay Lonkar for respondent nos. 1 to 6.
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Coram : Sharmila U. Deshmukh, J.
Date : February 12, 2024. P. C. :
1. Being dissatisfied with the judgment and order dated 26 th October 2015 passed by the appellate Court in Appeal No.596 of 2012 dismissing the appeal thereby confirming the judgment and decree of trial Court dated 28th April 2012 in Regular Civil Suit No. 81 of 2003 by which the suit came to be dismissed and the counter claim was decreed directing the plaintiffs to hand over possession of northern side 1 Hectare 32 Are area in block No. 33 (Old Block No. 2029) situated at Khairewadi, District:Pune, the original plaintiff is before this Court. Parties are referred to by their status before the trial Court.
2. RCS No.81 of 2003 was instituted by the original plaintiff for Patil-SR 1 of 17 23 SA-st-35249-15-2.doc perpetual injunction in respect of suit property described in paragraph no.1B of the plaint. Paragraph 1A describes property being Gat No 33, Old Gat No 2029 admeasuring 2 H 21 Are, pot kharaba 0.04 Are situated at Kanherumesai and paragraph 1B describes property being land admeasuring 1 H 31 Are out of property described in paragraph 1A on the northern side. It was pleaded that in 1930 partition had taken place between father of defendant nos.1 to 3, named Genu Khaire and the plaintiff. That, in 1932 measurement were carried out in original village Kanherumesai and in falanibara, Survey No.401/5 admeasuring 3 Acre 5 gunthas plus pot-kharaba 3 gunthas land came to the share of the Plaintiff and Survey No 401/6 admeasuring 28 Guntha along with Survey No. 401/7 admeasuring 2 Acre 11 Guntha + 2 Guntha pothkaraba came to the share of Genu Bhiwa Khaire and was recorded as such. It was pleaded that accordingly Mutation Entry No.1400 was effected and the plaintiff and defendants were put in possession. It was pleaded that in the year 1969, consolidation scheme was implemented in the village and during consolidation scheme in falanibara inadvertently, Survey No. 401/5 and 6A admeasuring 1 Hectare 31 Are, i.e., the suit property described in paragraph 1B of the plaint was recorded in the name of Genu Bhiwa and Survey No.401/6B admeasuring 27 Are was recorded in the name of plaintiff. It was pleaded that in fact the area of Survey No.401/5 + 6A ought to have been recorded in the name of plaintiff and Survey No. 401/6B ought to have been recorded in the name of defendants. It was pleaded that Survey No. 401/5 Patil-SR 2 of 17 23 SA-st-35249-15-2.doc and 6A and Survey No.401/7 belonging to the defendants came to be consolidated and formed in Gat No.2029 new Gat No. 33 and was recorded in the name of Genu Bhiwa Khaire. That, Survey No.401/6B along with Gat No 401/1A which was adjacent land was formed in Gat No.2028 new Gat No.32 and recorded in the name of plaintiff. It was pleaded that though the area was recorded as above, neither possession nor ownership rights were handed over as per the consolidation scheme and the plaintiff was in possession of land Gat No 401/5 and 6A admeasuring 1H 31 Are. It was pleaded that the consolidation scheme was completed in the year 1975. It was pleaded that Genu died 12 years prior to the filing of suit and after his death, the defendants being legal heirs of Genu Bhiwa Khaire became the owners and are in possession of the properties of Genu. The cause of action pleaded is that in the month of January 2003, the Defendants started raising grievance about the possession of plaintiff over land being part of Gat N0 33. It was pleaded that in the month of March 2003, the plaintiff applied for 7/12 extract, mutation entry and consolidation scheme documents and upon receipt of documents, the plaintiff became aware of the mistake committed at the time of implementation of consolidation scheme. It was pleaded that plaintiff filed appeal on 21 st April 2003 before the Consolidation Officer and the said proceedings are pending. According to the plaintiff, cause of action has arisen on 9 th May 2003 when the defendant obstructed possession of plaintiff over the suit property and the plaintiff went to lodge complaint at Pabal Outpost, however, the cognizance Patil-SR 3 of 17 23 SA-st-35249-15-2.doc was not taken and as such the suit is filed for permanent injunction.
3. Defendants resisted the suit by filing their written statement. It was contended that Survey No.401 was the ancestral property of plaintiff and defendants which came to be partitioned with half share being allotted to the plaintiff and half share to the defendants' father Genu and accordingly the parties were in possession. It was contended that subsequently consolidation scheme was implemented and after conducting enquiry and considering the nature of land, the defendant was allotted block no.2029 admeasuring 2 Hectare 25 Are. It was contended that after consolidation of blocks, the possession of suit land was handed over to the defendant in the year 1969 and thereafter Gat No.2029 which is new Gat No.33 is in possession of defendant. It was pleaded that the plaintiffs have no concern with Gat No.33 and have no right to claim any relief against the defendants till there is rectification of Gat number.
4. An additional written statement was filed by the defendants raising bar of Section 36A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 [for short, "the Fragmentation Act"] as also being barred by limitation. It was pleaded that after obtaining interim injunction, the plaintiff has started encroaching in the suit property from the northern side and has in fact encroached upon 1 Hectare 32 Are land. That, to maintain illegal possession the plaintiff had got appointed the TILR as a Court commissioner and on 6th August 2007, measurements were Patil-SR 4 of 17 23 SA-st-35249-15-2.doc carried out which disclosed that 1 Hectare 32 Are is in unlawful possession of the plaintiff. By way of counter claim, recovery of possession of encroached portion was sought which was denied by the plaintiff by filing written statement.
5. To this counter claim, the plaintiff filed his written statement and denied the contents of counter claim.
6. The parties went to trial and the trial Court framed following issues and answered the same as under :
ISSUES FINDINGS
1 Does the plaintiff prove his legal possession over Partly in the
suit land ? affirmative
2 Does he further prove alleged cause of action ? No.
3 Whether plaintiff is entitled for relief claimed ? No.
3A Do the defendants prove that the plaintiff is Yes.
illegally in possession of 1 H 32 R land out of Gat No. 2029 ?
3B Whether the defendants are entitled to recover Yes.
possession of 1 H 32 R land from plaintiff ?
3C Whether defendants are entitled for mesne Yes.
profit ?
3D Is the suit within limitation ? Yes
3E Whether this court has jurisdiction to try this Yes.
suit ?
Patil-SR 5 of 17
23 SA-st-35249-15-2.doc
4 What order and decree ? As per final order.
7. Upon considering the oral and documentary evidence, the trial Court observed that consolidation scheme was implemented in the year 1969 and Village Khairewadi was formed. The Trial Court considered the 7/12 extracts which revealed the undisputed position that Survey No.401/5 admeasuring 3 Acre 5 Guntha was allotted to the original plaintiff for the year 1955-56 to 1972-73 and Survey No. 401/6 admeasuring 28 Are and Survey No. 401/7 admeasuring 2 Acre 13 Guntha was recorded in the name of Genu for the year 1955-56 to 1972-73. The trial Court held that the scheme of consolidation is completed as soon as the possession is delivered, and, in the consolidation scheme the respective survey numbers were recorded in the name of parties, the possession of area was delivered to them and the scheme was completed. The trial court held that merely because the certificate was not issued, it does not mean that the possession was not delivered. The Trial Court considered the admission of PW-1 that he went to the suit property with police and that since 1969 he did not apply to Talathi for recording his cultivation. The Trial Court considered the Commissioner's report which stated that on the northern side of Gat No 33 cultivation was in progress and held that the report indicates that the northern side was not under cultivation prior to Court Commissioner's report. The Trial Court held that evidence establishes that the Plaintiff is in possession of the suit property after passing of order below Exh 5 and the possession not being Patil-SR 6 of 17 23 SA-st-35249-15-2.doc lawful, no relief of permanent injunction can be granted.
8. As regards the counter claim, the trial Court considered the evidence on record and Exh 92 measurement map of Gat Nos.32 and 33 showing area of 1H 32 Are out of Gat No 33 in possession of Plaintiff. The trial Court noted that extract of consolidation account indicates that Survey No 401/5 and 6A is recorded in name of Genu Bhiwa and against the Mutation Entry No 5404, appeal preferred by Plaintiff before Consolidation Officer is dismissed on ground of delay and pendency of the suit. Comparing the measurement map as against the 7/12 extract and consolidation extract, the Trial Court held that possession of plaintiff is not lawful and the Defendants are entitled to possession.
9. As against the judgment and decree of trial Court, appeal was preferred by the original plaintiff. The appellate Court framed following points for determination.
POINTS FINDINGS
1 Whether the suit as framed is tenable in law, in absence of No.
relief of declaration ?
2 Whether the plaintiff proved his legal possession over the No.
suit land ?
3 Whether the defendants proved that plaintiff encroached Yes.
upon an area of 1-H 32-R land ?
4 Whether the impugned Judgment and decree suffers from No.
any legal infirmity, warranting any interference by this court ?
Patil-SR 7 of 17
23 SA-st-35249-15-2.doc
5 What order ? As per final
order.
10. The appellate Court noted that the suit was filed seeking injunction simplicitor in respect of the suit land which is mutated in the name of defendants after the implementation of consolidation scheme and as such what the plaintiff seeks is to ratify the alleged mistake committed in consolidation scheme. The appellate Court considered that there is no explanation for the silence of plaintiff for 35 years, i.e., from 1968 to 2003 and that there is no material on record to reveal any order passed by the consolidation officer in favour of plaintiff. The appellate Court held that as the suit land is recorded in the name of defendants, the plaintiff can never said to be in possession of suit land. As regards the encroachment, the appellate Court considered the commissioner's report which showed that from the northern side area being cultivated by the plaintiff and observed that the plaintiff is not in legal possession of the suit land and therefore the plaintiff has encroached upon the area of 1 Hectare 32 Are of the suit land.
11. Heard Mr. K. B. Katake learned counsel appearing for the appellant and Mr. Manish Kelkar, learned counsel appearing for the respondent.
Patil-SR 8 of 17
23 SA-st-35249-15-2.doc
12. Learned counsel appearing for the appellant would submit that in the written statement, there is no pleading that the defendant had got possession of the property during consolidation scheme. He would submit that the case of defendant in the written statement is that the property is the ancestral property of defendant and it is not their case that under the consolidation scheme, the same came to be allotted. He submits that the written statement of defendant was filed in the year 2003 and the counter claim has been filed on 17 th September 2009 based on the cause of action that after the grant of ex-parte interim injunction on 2nd July 2003, the defendants have been dispossessed by the plaintiff and that the said fact is made clear by the measurement which were carried out on 6th August 2007. He would submit that the substantial questions of law which arises in the present case is that the counter claim cannot be filed when the cause of action has accrued after filing of the written statement and that the appellate Court had committed an error in law in dismissing the suit as not being tenable in the absence claim/relief of declaration.
13. Per contra, learned counsel appearing for the respondent would submit that it is settled position in law that the counter claim can be filed even after the written statement has been filed. He submits that in any event, in the present case after the amendment was Patil-SR 9 of 17 23 SA-st-35249-15-2.doc carried out, by way of additional written statement, the counter claim has been filed. In support of his submissions, he relies upon following case laws :
[a] Anathula Sudhakar v. P. Buchi Reddy [2008CJ(SC 41];
[b] Prabhakar Kushaba Hagwane v. Yashwant Bhau Hagwane [1993(2) Mh.L.J.];
[c] Shevantabai Maruti Kalhatkar v. Ramu Rakhamaji Kalhatkar [1999(3) All MR 231];
[d] Narayan S. Bite v. Mahadeo S. Pise [2001(2) ALL MR 414];
[e] Gulabrao Bhaurao Kalkade v. Nivrutti Krishna Bhilare [2001(2) ALL MR 518];
[f] Dattu Appa Patil v. State of Maharashtra [2006(6) ALL MR 421];
[g] Sheshrao B. Sable v. Ganesh M. Sable [2006(6) Mh.L.J. 728];
[h] Ramchandra Jyoti Jadhav Kaikadi v. Gajendra Nana Gund [2009(6) ALL MR 915]; and [i] Ashok Kumar Kalra v. Wing Cdr. Surdnera Agnihotri [AIR 2020 sc (Supp) 1491];
[j] Vijay Prakash Jarath v. Tej Prakash Jarath [AIR 2016 SC 1304]; [k] Gurbachan Singh v. Bhag Singh [AIR 1996 SC 1087]; [l] Mahendra Kumar v. State of MP [AIR 1987 SC 1395]; [m] Hanumanthagouda v. Bandu Bandeppa Venkatesh Kulkarni [AIR 2001 Karnataka 10];
[n] Namdeo Bhau Chavan v. Shantabi Kundalika Chavan [2011(4) ALL MR 246];
Patil-SR 10 of 17
23 SA-st-35249-15-2.doc
14. Considered the submissions and perused the record.
15. To have better understanding of the allotment of various Gat numbers as stated in the plaint, it will be beneficial to reproduce the same in tabular statement as under:
Plaintiff Defendant Partition -1930 S. No 401/5 - 3 Acre 5 S. No 401/6- 28 gunthas
gunthas plus pot-kharaba and S. No 401/7 - 2 Acre 3 gunthas. 1 guntha plus pot-
kharba 2 gunthas.
Fhalnibara during S. No 401/6B- 27 Are S. No 401/5 and 6A -1
consolidation scheme 31 Are.
Consolidation allotment S. No 401/6B and 401/1A- S. No 401/5 and 6A and
Gat No 2028- New Gat No S. No 401/7-
32 Gat No 2029- New Gat
No 33.
16. The case of Plaintiff is that despite the above position, the possession of suit property was with the Plaintiff pursuant to the partition taken place in the year 1930. The Trial Court as well as the 1 st Appellate Court has considered the evidence and held that the possession of the Plaintiff was illegal considering the suit land being recorded in name of the Defendants upon implementation of the consolidation scheme. Learned Counsel for the Appellant has not made any submissions on the findings and rightly so as the Courts have rightly appreciated the evidence on record.
Patil-SR 11 of 17
23 SA-st-35249-15-2.doc
17. According to Mr. Katake, the cause of action for filing counter claim has arisen after the filing of written statement. Order 8 Rule 6A of CPC governs the filing of counter claim and reads thus :
"6-A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as a cross-
suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."
18. A reading of the above provision indicates that the counter claim can be filed in respect of the cause of action accruing to the Defendant against the Plaintiff either before or after the filing of suit but before the Defendant has delivered his defence or before the Patil-SR 12 of 17 23 SA-st-35249-15-2.doc time limited for delivering his defence has expired. As held by the Apex Court in case of Ashok Kumar Kalra vs Wing Cdr. Surendra Agnihotri & Ors reported in AIR 2020 SC (Supp) 1491, Order VIII Rule 6A of CPC does not put an embargo on the filing of counter claim after filing of the written statement, rather the restriction is only with respect to the accrual of cause of action.
19. It is thus settled that the counter claim can be filed after the filing of written statement, however the cause of action should have arisen prior to the filing of written statement. In the present case, by way of counter claim, the Defendant seeks recovery of the possession of area of 1 Hectare 32 Are as indicated in the measurement map dated 6th August, 2007 and for mesne profits from July, 2003. The pleading as regards the cause of action is that taking support of the passing of ex-parte interim order on 17 th May, 2003, with the aid of police, the possession was taken on 2 nd July, 2003 and upon measurement, the area of 1 Hectare 32 Are being in illegal possession of the Plaintiff was confirmed on 6th August, 2007.
20. The written statement was filed on 30th July, 2003 and the cause of action seeking recovery of possession is pleaded to have arisen on 2nd July, 2003 i.e., before the filing of written statement. Although it is stated that the same was confirmed upon the Patil-SR 13 of 17 23 SA-st-35249-15-2.doc measurement being carried out on 6 th August, 2007, the cause of action arose on dispossession of the Defendants on 2 nd July, 2003. The relief of mesne profits from the month of July, 2003 would indicate that the illegal dispossession is claimed from July, 2003. That apart, it needs to be noted that by way of amendment, the plaint came to be amended and the additional written statement was filed on 17th September, 2008. Pertinently, the objection as to the maintainability of counter claim was not raised before the Trial Court or the 1st Appellate Court. Upon reading of the pleadings on record, in my view, the cause of action arose on 2 nd July, 2003 i.e. before the filing of written statement on 30 th July, 2003. The counter-claim which was filed after filing of written statement was maintainable as cause of action accrued prior to filing of written statement.
21. The other submission canvassed is that the suit simplicitor for injunction was maintainable as the title was not in dispute being ancestral property. The Apex Court in the case of Anathula Sudhakar v. P. Buchi Reddy (supra) has laid down the general principles as to when a mere suit for permanent injunction would lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief and has held thus in paragraph 17 as under:
Patil-SR 14 of 17
23 SA-st-35249-15-2.doc
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-
forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the Patil-SR 15 of 17 23 SA-st-35249-15-2.doc costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
22. The specific case of plaintiff is that during the consolidation scheme, suit property came to be recorded in the name of defendants and the consolidation extract on record demonstrates the said position. The case of Plaintiff is that despite the admitted position, possession as also the ownership was never transferred. The Plaintiffs have relied upon the 7/12 extracts which recorded the name of Plaintiff in respect of the suit property. However, the same are prior to the implementation of consolidation scheme. On the other hand, the consolidation account extract which was implemented after the partition of suit property, reveals the name of Defendants in the records. Upon proper reading of the averments in plaint, in my view, the suit of Plaintiff was not for injunction based on possession but relief of perpetual injunction was premised on ownership rights and possession of the suit property. Whereas the Defendants claimed ownership rights in the suit property based on the allotment in favour of Defendants during the consolidation scheme. Considering the pleadings, the remedy of the Plaintiffs was to seek substantive relief Patil-SR 16 of 17 23 SA-st-35249-15-2.doc of declaration of right in the suit property and suit for mere injunction was not maintainable.
23. From the discussion above, it is clear that the submissions canvassed by learned Counsel for the Appellant are covered by the well settled position of law and thus no substantial question of law arises in the present case. Appeal is dismissed.
24. In view of the disposal of second appeal, pending civil/interim application(s) stands disposed of.
25. At this stage, learned counsel appearing for the appellant seeks stay of this order for a period of four weeks. The said request is opposed by learned counsel for the respondent. Considering that there was a statement made by learned counsel appearing for the respondent that no steps will be taken to execute the decree, which statement has been continued from time to time, I am inclined to continue the interim relief for a period of four weeks from the date of uploading of the present order.
[Sharmila U. Deshmukh, J.]
Patil-SR 17 of 17
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 21/02/2024 20:19:19