Bombay High Court
Shankar S/O Kaliram Warkhede & 5 Otr vs Mahadeo S/O Harbaji Fating(Deceased) ... on 5 July, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
393-J-SA-672-04 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.672 OF 2004
1. Shankar s/o Kaliram Warkhede
(Deleted)
2. Shyam s/o Shankar Warkhede
aged about 40 years,
3. Sapna w/o Shyam Warkhede,
aged about 35 years,
4. Ram s/o Shankar Warkhede,
aged about 42 years,
5. Indubai w/o Ramkrishna Warkhede,
aged about 37 years,
Occ. Labourer,
6. Parvatibai w/o Shankar Warkhede,
aged about 70 years,
All appellants are resident of
Sonegaon, Khamla Road, Nagpur ... Appellants.
-vs-
Mahadeo s/o Harbaji Fating
(Deceased) Through Legal Heirs :
1. Shantabai wd/o Mahadeo Fating,
aged about 60 years, Occ. Household,
2. Madan Mahadeo Fating,
aged about 43 years, Occ. Service
3. Vinod s/o Mahadeo Fating,
aged about 40 years, Occ. Service
4. Moreshwar s/o Mahadeo Fating,
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393-J-SA-672-04 2/9
aged about 35 years, Occ. Business,
5. Yogiraj s/o Mahadeo Fating,
aged about 31 years, Occ. Service,
All 1 to 5 residents of Sonegaon,
Khamla Road, Nagpur.
6. Nirmala w/o Ramkrishna Umate,
aged about 45 years,
Occ. Household, R/o Lokmat Chowk,
Mangaldeep Apartments, Ramdaspeth,
Nagpur.
7. Ganga w/o Ishwar Gabhane,
aged about 41 years, Occ. Household,
R/o Bhuteshwar Nagar,
Gangabai Ghat, Nagpur.
8. Government of Maharashtra,
Through its District Collector,
Collectorate Office, Nagpur ... Respondents.
Shri M. P. Kariya, Advocate for appellants.
Shri H. N. Bhondge, Advocate for respondent Nos.2 to 7.
Shri K. R. Lule, Assistant Government Pleader for respondent No.8.
CORAM : A. S. CHANDURKAR, J.
DATE : July 05, 2018.
Oral Judgment :
The appellants are the original defendants in the suit filed by the legal heirs of respondent Nos.2 to 7 who are aggrieved by the decree for possession passed by the trial Court and maintained by the appellate Court.
2. The facts in brief are that it is the case of the original plaintiff that ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 3/9 he was in actual possession of plot No.78 admeasuring about 1225 sq. ft. since 30-35 years prior to 1998. The plaintiff's name was mutated in the government record and he was paying taxes all along. The plaintiffs had filed suit against one Kisan Netam for declaration and permanent injunction with regard to some lands including plot No.78 but that suit was dismissed. In the month of September 2017 the plaintiff was busy in the marriage of his son. The defendant Nos.2 to 7 without any legal right or title took forcible possession of the suit property. After issuing notice under Section 80 of the Code of Civil Procedure, 1908 the aforesaid suit was filed for a declaration that the plaintiff had possessory title. A prayer was also made for eviction of defendant Nos.2 to 7 from the suit property.
3. Written statement at Exhibit-17 was filed by the defendant Nos.2 to 7. The claim as made was denied. It was pleaded that the land in question was owned by the Government and that said defendant had encroached upon the same. It was denied that the plaintiff has no title to the suit property. The suit was also barred by limitation and it was thus pleaded that it was liable to be dismissed.
4. The trial Court after considering the evidence on record held that the plaintiff was in possession since prior to 30-35 years since filing of the suit. The defendant Nos.2 to 7 had forcibly dispossessed the plaintiff. After ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 4/9 holding that the suit property belonged to the Government. The suit was decreed by holding that the plaintiff had possessory title and the defendant Nos.2 to 7 were trespassers. The appellate Court confirmed that finding and dismissed the appeal. Being aggrieved the said defendant Nos.2 to 7 have filed this appeal.
5. The following substantial questions of law were framed while admitting the appeal :
i) Whether the suit on the basis of possessory title is maintainable at the instance of plaintiff who has been dispossessed six months prior to the date of institution of the suit ?
ii) Whether the period of two months on alleged statutory notice under Section 80 of the Code of Civil Procedure, 1908 be excluded while computing the period of limitation of six months ?
6. Shri M. P. Karia, learned counsel for the appellants submitted that both the Courts having held that the State Government was the owner of the suit property no decree in favour of the plaintiff could have been passed. The plaintiff was not entitled for a declaration that he had possessory title over the suit property. As it was the case of the plaintiff himself that he was not in possession, the suit of such nature seeking declaration of possessory title was not maintainable. It was not proved on record that the defendants have taken forcible possession. The earlier adjudication in R.C.S. No.1108/1990 ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 5/9 was not binding upon the defendants as they were not party to those proceedings. It was then submitted that since it was the case of the plaintiff that he had been forcibly dispossessed in September 1997, the suit ought to have been filed within a period of six months from such forcible possession. It was however filed in April 1998 beyond the period of six months and was thus barred by limitation. In support of his submission, the learned counsel placed reliance upon the following judgments :
(i) Nagar Palika, Jind vs. Jagat Singh AIR 1995 SC 1377
(ii) Deva (dead) Thr. L.Rs. vs. Sajjan Kumar (dead) by L.Rs. AIR 2003 SC 3907.
(iii) Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah AIR 1998 SC 1132
(iv) Harinderpal Singh vs. Rani (deceased) by LRs and ors. AIR 2005 Punjab and Haryana 151.
(v) Shah Mohammad Noor Khan vs. Jan Mohammad Vali Mohammad and ors. AIR 2006 Bombay 224.
(vi) Rangaswami vs. T. V. Krishnan and ors. 2011(97) AIC 558
(vii) Manjit Singh and ors. vs. Shanti Devi and anr. 2010(15) SCC 578
(viii) Nagesh Mahajan vs. Ratna Sharma 2012(9) R.C.R (Civil) 748
(ix) Dandapani Sahu vs. Budhuram Lohar and ors. 2007(54) AIC 666
(x) Rambhau Mhatarba Fud & Ors. Vs. Forest Range Officer and ors.
2014(5) Bom. C.R. 823.
(xi) Uppalapati Veera Venkata Satyanarayanaraju and anr. vs. Josyula Hanumayamma and anr. 1967 AIR (SC) 174
(xii) Kanti Lal vs. Shanti Devi ors. 1997 Air (Raj) 230. ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 6/9
7. Shri H. N. Bhondge, learned counsel for the respondent Nos.1 to 7 supported the impugned judgment. He submitted that both the Courts had concurrently held that the plaintiff had been forcibly dispossessed in September 1997. As the plaintiff was claiming possession on the basis of possessory title, relief could be granted against a person not having better title than the plaintiff. He submitted that both the Courts have found that the defendants were not in possession for more than 30 years as alleged by them. The various documents placed on record by the plaintiff indicated his long standing possession and recognition of the same by the revenue Authorities. The suit was filed within limitation and the provisions of Section 6 of the Specific Relief Act, 1963 were not applicable to the facts of the case. It was thus submitted that as the suit was validly filed within limitation and the plaintiff had a better title than the defendant Nos.2 to 7 the same was rightly decreed. The learned counsel placed reliance on the decisions in Mariumbi Aslamkhan and anr. vs. Vithoba Yeshwanta and ors. AIR 1970 Mh.L.J 355 and (Prince) Ranjit Singh and ors. vs. Jhori Singh AIR 1929 Patna 601.
8. I have heard the learned counsel for the appellants at length and with their assistance I have gone through the records of the case. The subject matter of dispute is plot No.78 admeasuring about 1225 sq. ft. From the evidence on record it can be seen that as per document at Exhibit-56 a ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 7/9 Sanad was issued in favour the plaintiff. At Exhibit-55 is a notice issued under provisions of Section 127(3) of the Maharashtra Land Revenue Code calling upon the plaintiff to appear before the Survey Officer on 18/01/1983. Another notice at Exhibit-54 informs the plaintiff that necessary enquiry was made on 30/03/1971 in which possession of the plaintiff was acknowledged. The Aakhiv Patrika at Exhibit-51 records the name of the plaintiff in the year 1971. In R.C.S. No.1108/1990 at Exhibit-52 which was a suit filed by the plaintiff along with two others against one Kisan Netam a finding has been recorded that the plaintiff was in possession of plot No.78. From the aforesaid documentary evidence it has been found by both the Courts that the plaintiff had proved that he was in possession of the suit plot more than 30 years before filing the suit. This finding of fact is recorded after appreciating the evidence on record.
9. The plaintiff is claiming relief on the basis of possessory title. Undisputedly the land is owned by the State Government which is defendant No.8. The defendants have admitted that they did not have title to the suit property. It is in this backdrop that it has been contended by the said defendants that the plaintiff is not entitled for any relief in absence of any valid title. Alternatively it is stated that the suit is filed after the period of six months from the date of dispossession. The Division Bench of this Court in Mariumbi Aslamkhan and anr. (supra) has held that a suit based on ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 8/9 possessory title must be distinguished from a suit filed under Section 6 of the Specific Relief Act, 1963. Such suit based on possessory title can be filed within twelve years of dispossession and the plaintiff can maintain the same against any person who does not have a better title. The ratio of this decision applies on all fours to the case in hand. The question of provisions of Section 6 of the Specific Relief Act, 1963 being attracted therefore does not arise. The plaintiff was seeking declaration of his possessory title as can be seen from the reliefs claimed in the plaint. As it has been held that the plaintiff was forcibly dispossessed in September 1997 the present suit has been filed within limitation as prescribed by Article 64 of the Limitation Act, 1963. The decisions relied upon by the learned counsel for the appellant relate to the provisions of Section 6 of the Specific Relief Act, 1963. In the light of averments in the plaint and the nature of relief sought, the ratio of those decisions requiring the plaintiff to file proceedings within six months of dispossession are not attracted to the case in hand. Substantial question of law No.(i) is answered by holding that the suit seeking declaration of possessory title was maintainable at the instance of the plaintiff who was forcibly dispossessed more than six months before institution of the suit.
10. Once it is held that the suit is filed within limitation, the question of excluding the period of two months on the basis of statutory notice issued under Section 80 of the Code is not required to be gone into. Moreover, ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 ::: 393-J-SA-672-04 9/9 no relief whatsoever has been granted to the plaintiff against the defendant No.1 and the decree has been passed only against defendant Nos.2 to 7. In that view of the matter the substantial question of law No.(ii) does not arise for consideration in view of the answer given to the first substantial question of law.
11. In the light of aforesaid adjudication it is found that there is no reason whatsoever to interfere with the judgments of both the Courts. Second Appeal No.672/2004 therefore stands dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 00:22:19 :::