Surana Bothra Associates, Partnership ... vs Rakesh Motilal Sharma, Proprietor Of ... on 15 February, 2021

[Cites 3, Cited by 1]

Bombay High Court

Surana Bothra Associates, Partnership ... vs Rakesh Motilal Sharma, Proprietor Of ... on 15 February, 2021

1. Aggrieved by order dated 4 December, 2020 passed below Exhibit - 5 in Special Civil Suit No. 954 / 2020 by the Court of Joint Civil Judge, Senior Division, Pune, Defendants have preferred this appeal under order 43 Rule 1 of the Code of Civil Procedure, 1978.

2. Plaintiffs are seeking, declaration that they have perfected their title over the suit property described in paragraph no. 1.3 i.e. land bearing survey no. 579 / 2, ad-measuring 799.60 sq. mtrs., more particularly described in paragraph no. 1.3 of the plaint, by way of adverse possession. Another relief sought, is to perpetually injuct defendants from entering over the property described in paragraph nos. 1.2 and 1.3 of the plaint or any part thereof and or interfering with plaintiffs' possession over it by themselves or Rane 5/25 15.2.2021 their agents or any persons claiming through the defendants.

3. Pending suit, plaintiffs filed an application for temporary injunction. Trial Court vide order dated th 4 December, 2020 restrained the defendants from entering over the suit property described in paragraph nos. 1.2 and 1.3 of the plaint or interfering with plaintiffs' possession over it, till disposal of the suit.

4. Plaintiffs' assertions :

Plaintiffs have described suit property in paragraph nos. 1.1, 1.2 and 1.3 of the plaint. The property described in paragraph no.1.1, is a land bearing survey no. 579, Hissa no. 1B. It was owned by Ms. Gool Nariman Damri and others. Plaintiffs' grand-father, Girdharilal Sharma was interested in developing of this property. Accordingly st on 1 September, 1988, development agreement was Rane 6/25 15.2.2021 executed by Ms. Gool Nariman Damri and others in favour of M/s Sharma Builders, a partnership firm, in which Girdharilal Sharma was a partner. The possession of this property (described in paragraph no. 1.1) was handed over to partners of M/s Sharma Builders. It is plaintiffs' case that at the same time, partners of M/s Sharma Builders also took possession of the adjoining property ad-measuring 799.60 sq. mtrs., a part of survey no. 579, Hissa no.

2, described in paragraph no. 1.3 of the plaint.

5. Plaintiffs would assert that in the year 1990, partners of M/s Sharma Builders, Girdharilal Sharma, out of his funds constructed a massive compound wall and encompassed, covered, not only the property handed in terms of development st agreement dated 1 September, 1988 (i.e. described in para 1.1), but also land ad-measuring 799.60 sq. mtrs. from survey no. 579, hissa 2. Plaintiffs, would therefore, claim property Survey No.579 Hissa Rane 7/25 15.2.2021 No.2, described in paragraph no. 1.3 (admeasuring 799.60 sq. mtrs.) was in the exclusive possession of M/s Sharma Builders, openly and publicly, adverse to its original owners without any obstruction, since 1988.

6. Plaintiffs would further assert, Ms. Gool th Nariman Damri executed a lease deed on 27 December, 1996 in favour of Motilal Girdharilal Sharma and others with the consent of partners of M/s Sharma Builders and granted perpetual lease of the entire property described in paragraph no. 1.1 i.e. land survey no. 579, hissa 1-B, Plaintiffs would claim Motilal Sharma, not only took possession of land described in lease deed but also land described in paragraph no. 1.3 (799.60 sq. mtrs, survey no. 579, Hissa 2).

7. That on 22 August, 1997, lessees under the th deed of lease dated 27 December, 1996 executed a Rane 8/25 15.2.2021 development agreement in favour of plaintiffs in respect of land described in paragraph no. 1.1 and handed over possession to the property to them. In paragraph no. 9 of the plaint, plaintiffs would assert that at the time of execution of development nd agreement dated 22 August, 1997, plaintiffs also took possession of property described in paragraph no. 1.3.

8. It is plaintiffs' case that on 24 April, 2006, Ms. Gool Nariman Damri and lessees under the th lease deed dated 27 December, 1996 executed an Irrevocable Power of Attorney in favour of the plaintiffs in respect of suit property described in paragraph 1.1.

9. In January, 2009, portion of land ad-measuring 2444.50 sq. mtrs. of the property described in paragraph 1.1 was transferred to Pune Municipal Rane 9/25 15.2.2021 Corporation for the proposed D.P. Road as then shown in the Development Plan under the Provisions of the Maharashtra Regional and Town Planning Act, 1966 (MRTP, Act). Resultantly, property described in paragraph 1.1 i.e. Survey No. 579, Hissa 1-B divided into two parts i.e. Eastern and Western Side, which is described in paragraph 1.2 of the plaint.

10. On 26 December, 2012, Ms. Gool Nariman Damri and Others and the lessees under the lease th deed dated 27 December, 1996 executed a deed of conveyance in favour of the plaintiffs in respect of suit property described in paragraph 1.2.

11. Thus, relying on the all aforesaid transnational deeds, plaintiffs are claiming their exclusive possession in property described in paragraph 1.2. So far as their possession in property, described in paragraph 1.3 of the plaint is concerned; plaintiffs Rane 10/25 15.2.2021 nd would assert and claim the possession since 22 August, 1997, a date on which, Development Agreement, was executed in their favour.

12. In paragraph no.14, plaintiffs have pleaded thus;

" The Plaintiffs took possession of suit property described in paragraph 1.3 in the year 1997 and started enjoying exclusive possession of the said property as the owner thereof openly and publicly, adverse to original owners of Survey No. 579, Hissa No. 2, continuously ever since then, for a period more than 12 years, without any obstruction from anyone including the original owners of Survey No. 579, Hissa No. 2. Thus the Plaintiffs have perfected his title over the suit property described in paragraph 1.3 herein, as an owner thereof by way of adverse possession."

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13. The        suit     has     been         to        be      instituted     in

September, 2020. The cause of action pleaded is th that, on 10 August, 2020, defendants tress-passed into the property described in paragraph 1.2 and 1.3 and attempted to erects of structure over it. Plaintiffs thereupon lodge the complaint to the police th on 17 August, 2020. Plaintiffs would further claim th that on 29 August, 2020, persons claiming to be employees of defendants nos. 1 to 3 erected iron angles over the property described in paragraph no. 1.2 and 1.3. Their attempt was resisted, which culminated into F.I.R. filed by the son of the plaintiff.

14. Thus, apprehending the obstruction and dispossession over the property described in paragraph 1.2 and 1.3, pending suit, plaintiff had filed an application for temporary injunction. It was th allowed by the learned Judge vide order dated 4 Rane 12/25 15.2.2021 December, 2020. Aggrieved by this order, defendants have preferred this appeal.

15. Heard. Mr. Godbole, learned Senior Counsel for the Appellant and Mr. Anturkar, learned Senior Counsel for the Respondents.

16. Perused the impugned order, plaint, reply and documents filed by the parties. It is appears the plaintiffs while arguing their application for temporary injunction contended before the trial Court that for the purpose of disposal of application (Ex-5), Court need not to go into ingredients of adverse possession, other then "actual settled possession", claimed by the plaintiffs over the suit property described in paragraph 1.3.

17. It may be stated that though plaintiffs are claiming possession over the suit property described Rane 13/25 15.2.2021 in paragraph 1.3 since August, 1997 i.e. a date on which Development Agreement was executed in their favour, but to say the Development Agreement dated nd 22 August, 1997 and subsequent sale deed dated th 26 December, 2012 was in respect of land described in paragraph 1.1. It is their case, that when nd Development Agreement was executed on 22 August, 1997, possession of land described in paragraph 3.3 was taken from erstwhile lessees. However, boundaries of land described in the nd Development Agreement dated 22 August, 1997 do not even suggest or in the slighest degree, indicate that the plaintiffs were, also inducted in possession of property described in paragraph 1.3. Herein, plaintiffs would urge that his grand-father Girdharilal Sharma, after deriving development rights of the larger property described in paragraph 1.1 constructed a massive compound wall in a year 1990, not only around the property described in paragraph 1.1, but also around the property ad-

Rane 14/25 15.2.2021 measuring 799.60 sq. mtrs., a part of Survey No. 579/2. Even assuming Girdharilal Sharma, while constructing the boundary wall encompassed property described in paragraph 1.3 and further assuming, he was in possession thereof, he ought to have describe 'entire land' (i.e. property 1.1 + 1.3) nd in lease executed on 22 August, 1997 in favour of plaintiffs. Thus, it is to be noted save and except a bare and plain 'statement' of the plaintiffs, no other material has been brought on record to prima facie, establish their possession over the property described in paragraph 1.3.

18. The fact cannot be overlooked that in 1997, plaintiffs were not owners of the property described in paragraph 1.1 of the plaint. Infact, they were empowered to develop the property described in paragraph 1.1 of the plaint. Their postulation of possession over the property described in paragraph 1.3 adversely since 1997, lends no credence, in Rane 15/25 15.2.2021 absence of then owners, being impleaded as party defendants and such other evidence. Be that as it may, though since plaintiffs are claiming their "actual settled possession" over the property described in paragraph 1.3, however beyond the pleadings, there is no convincing evidence to prima facie accept their assertion of 'settled possession' over the property described in paragraph 1.3, on the date of which the suit was instituted. Settled possession means such possession over the property which has existed for a sufficiently long period of time and has been acquiesced to by the true owner.

19. Mr. Anturkar, learned Senior Counsel for the Respondents, would repeat, plaintiffs' submission before the trial Court that for the purpose of disposal of application below exhibit - 5 i.e. temporary injunction, Court need not to go into ingredients of adverse possession, other then 'actual settled possession' claimed by the plaintiffs.

Rane 16/25 15.2.2021 Plaintiffs thus relied on the following circumstance and evidence to justify the order passed by the trial Court in their favour.

(i) Government Demarcation Certificate Map No. 1807/2016 produced at Exhibit - 17 at Serial No. 2.

This certificate relates to measurement carried out by adjoining land owners. It shows disputed land described in paragraph 1.3 is/was under the control ( वहीवाट ) of the plaintiffs. This certificate has been relied on by the learned trial Court to hold the 'actual possession' of the plaintiffs over the disputed land, for the reason that this, certificate was not challenged by the defendants, though it was drawn and issued in the year 2016. However, there is no evidence, to suggest, this measurement was carried out after notice to the defendants.

(ii) The next circumstance, is a police complaint rd dated 3 September, 2020 filed by the defendants. Mr. Anturkar attempted to draw the inferences from the contents of the FIR, to submit that the Rane 17/25 15.2.2021 defendants themselves have admitted the possession of the plaintiffs over the disputed land. The learned trial Court while dealing with this piece of evidence in paragraph no. 15 has held thus;

" So the very assertion of defendants in the rd police complaint dated 3 September, 2020 that itself again compelling to infer that at somewhat extent the plaintiff is in control of the suit property in para 1.3 of the plaint." It is inferential circumstance.

(iii) The third circumstance relied on by the learned trial Court is 'google image' of the stone wall and demarcation map of Survey No. 579/2. It appears, one Arhan Co-operative Housing Society had applied for demarcation for Survey No. 579/2 in the year 2012. The learned trial Court found the said demarcation map shows one wall existed while measurement was carried out in February, 2012.

Relying on this Survey Map and Google images, the learned trial Court held that since defendants have Rane 18/25 15.2.2021 not denied the existence of the wall shown in the Survey Map carried out in 2012, the defendants have directly and impliedly admitted the plaintiffs' control over the disputed land inasmuch as of these documents were produced by the defendants themselves. It is also inferential circumstance.

20. The trial Court thus, relying upon the aforesaid documents produced by the defendants has held thus; "So considering the claim of plaintiff and all aforesaid factual aspect as discussed herein above, prima faciely, it reveals that the plaintiff is in control of property described in paragraph 1.2, 1.3 of the plaint and having very much prima facie, case to claim equity against the defendants. Resultantly, the trial Court has granted injunction." Thus, finding recorded is in about 'control' and not possession.

21. It may be stated that the plaintiffs have not brought positive evidence on record to establish Rane 19/25 15.2.2021 their, "actual possession" over the property described in paragraph 1.3, but relied on survey maps and google images to claim their possession over the disputed land since 1997. A person, who asserts a possession over the particular property, is required to show that he is under settled or established possession of the said property. The Hon'ble Apex Court in the case of Unaram Vs. Motiram (2019) 11 SC 309 has held mere stray or intermittent acts of tress pass do not give such right against the true owner. Settled possession means such possession over the property which has existed for sufficiently long period of time and has been acquiesced too by the true owner. The casual act of possession does not have the effect of interrupting possession of the rightful owner. The settled act of trespass or a possession which has not matured into settled possession can be obstructed or removed by the true owner, even by using necessary force. Thus, settled possession must be ;

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(i) Effective,

(ii) Undisturbed

(iii) To the knowledge of the owner or without any concealment by the trespasser.

22. The Hon'ble Apex Court has also observed that merely on doubtful material and cursory evidence, it cannot be held that plaintiff was ever in possession of the property and that too in settled possession.

The Court has laid down the following tests, which may adopted for working rule for determining the attributes of settled possession;

(i) That trespasser must be in 'actual physical' possession of the property over the sufficiently long period;

(ii) That possession must be to the knowledge (either expressed or employees) of the owner or without any attempt concealment by the trespasser;

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23. As against the law laid down by the Apex Court in the aforesaid judgment, I have every reason to note that the material relied upon by the plaintiffs was a superficial and the nature of evidence was cursory, and does not prima facie establish plaintiffs' possession over land described in paragraph 1.3 of the plaint.

24. Prima facie, pleadings submit and advance the fact that the plaintiffs, pre-deceased (Girdharilal Sharma), under the guise of 'development rights' described in paragraph 1.1 of the plaint of property, constructed stone wall in 1990, not only around the land 1.1, but also land described in paragraph 1.3, of the plaint, without permission of the Competent Authority. Thus, noticeably this act was, nothing less then encroachment by Girdharilal Sharma.


Now,      plaintiffs       are     claiming         possession       of       the

disputed       land    through         Girdharilal            Sharma         and

seeking declaration of title.                  Thus, evidence sought
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to be pressed into service by the plaintiffs, asserting peaceful possession over the property described in paragraph 1.3 of the plaint is traceable to 'encroachment' by Girdharilal Sharma, and therefore plaintiffs cannot seek injunction against the defendants/ true owner.

25. In the given set of facts, Mr. Godbole, learned Senior Counsel for the appellant has rightly relied on the judgment of the Hon'ble Apex Court in the case of Shivkumar Chadha Vs. Municipal Corporation of Delhi (1993) 3 SCC 161, where it was observed;

"that injunction is discretionary and that, judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court."

26. Besides, it may be stated, the boundaries of land described in paragraph 1.1, 1.2 and 1.3 are not falling in line, with the documents relied on by the plaintiffs as referred above. Infact, the learned Rane 23/25 15.2.2021 trial Court while accepting the plaintiffs' possessory, claim over the disputed property relied on map M.R. No. 1807/2016. It shows the disputed land has merged with survey no. 579/1-B. Trial Court held, since the plaintiffs have not challenged the map, inferences is to be drawn that defendants were aware that the disputed land was in possession of the plaintiff since 2016. Second inference has been drawn from another survey map, which according to the plaintiffs show a stone wall. The learned trial Court has held, plaintiffs' possession over the disputed land, simply because the defendants have not denied the existence of wall as shown in the map. Thus, the conclusion reached by the trial Court was based on 'inferential process' as noted above and further the inferences were drawn because survey maps were not challenged by the defendants. It is settled law that a person who claims his settled possession over the disputed property, is required to prima facie establish his possession by Rane 24/25 15.2.2021 convincing evidence and therefore in absence of any such evidence, inferential process adopted by the learned trial Court, while prima facie holding plaintiffs control over the property described in paragraph 1.3 was incorrect.

27. In the consideration of the aforesaid facts and for the reasons stated above, the appeal is partly allowed and hence the following order;

O R D E R th

(i) Order dated 24 November, 2020 passed below Exhibit - 5 in Special Civil Suit No. 954/2020, restraining the Defendants from entering over the suit property described in paragraph no. 1.3 of the plaint and interfering with the plaintiffs possession over it, is quashed and set aside.

(ii) Appeal is partly allowed and disposed of in the aforesaid terms. Interim Application also stands disposed off.

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                      28.            After   pronouncing           this   judgment,      learned

                      Counsel         for    the        respondent        (original     plaintiff)

requested this Court to continue interim stay since applicant intends to challenge the order of this Court before the Hon'ble Apex Court. However, in view of the facts of the case and for the reasons stated, request to stay the operation of the judgment and order is declined and accordingly rejected.

(SANDEEP K. SHINDE, J).



         Digitally
         signed by
Neeta    Neeta S.
         Sawant
                      N A J E E B.
S.       Date:
Sawant   2021.02.16
         14:56:30
         +0530

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