Tuesday, 6 November 2018

Whether court should appoint court commissioner to ascertain encroachment?

14. As regards the prayer made on behalf of the appellant that a Commissioner be appointed, claiming that there was some confusion regarding exact location and boundaries of the suit property, the appellant was first required to bring some evidence either oral or documentary to prove title in the suit property and thereafter, such a prayer for appointment of Commissioner could have been considered. The judgments relied upon by the learned counsel appearing on behalf of the appellant in respect of appointment of Commissioner pertain to a totally different factual scenario. In all those cases, the question of encroachment was being considered while in the present case the very proof of title and ownership is wanting and, therefore, appointment of Commissioner is not warranted in the present case. Even otherwise, when the respondent had applied for appointment of Commissioner at Exh. 28 before the trial Court, the appellant had opposed the same and the application was not granted. This demonstrates that the appellant was himself not having any document to support his claim of title and that, therefore, the appointment of Commissioner would not take his case any further. Hence, the said request made on behalf of the appellant is rejected.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 206/2001

Decided On: 21.03.2018

 Dulichand  Vs. Shankarlal

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2018(5) MHLJ 424


1. This appeal arises out of a suit for permanent and mandatory injunction filed by the appellant against the respondent, seeking an order to restrain the respondent from disturbing peaceful possession of the appellant in the suit property being Gat No. 175 in T.S. No. 18 situated in tehsil Amgaon, district Bhandara. The appellant further sought a mandatory injunction commanding the respondent to demolish boundary walls and tin shed already constructed on the aforesaid suit property.

2. The appellant claimed to be the owner of the said suit property and further that he was in possession thereof at the time of fling of the suit. It was claimed that on 09.11.1985, when the appellant came to Amgaon, he noticed that the respondent and his associates had started construction on the boundary wall of the said suit property and that the appellant was constrained to lodge a police complaint regarding the same. As the police failed to take any action in the matter, the appellant filed the aforesaid suit. The respondent filed his written statement in the said suit and denied that the appellant was owner and in possession of the suit property. It was claimed that the appellant had filed an earlier suit bearing Regular Civil Suit No. 436 of 1982, against the respondent and one Savitridevi in respect of Gat No. 172, which was pending wherein the appellant had claimed that there was encroachment by the defendants and that now the present suit had been filed to unnecessarily harass the respondent.

3. To support his claim, the appellant relied upon copies of revenue records at Exhs. 49 to 51, a map at Exh. 52 and an order at Exh. 53, whereby the suit property was converted to non-agricultural use. In the oral evidence, the appellant claimed that suit property was ancestral property and that it had come to him on the basis of a partition. The respondent in the oral evidence claimed that he had made the construction on Gat No. 172-B and not on Gat No. 175 and that, therefore, there was no substance in the grievance made by the appellant in the aforesaid suit. There were sale deeds at Exhs. 60,61 and 62 on record pertaining to various portions of the land wherein the suit property, as claimed by the appellant, was located.

4. On the basis of the aforesaid pleadings and evidence on record, the trial Court framed number of issues, including an issue pertaining to whether the appellant had proved title, ownership and possession in the suit property. By its judgment and order dated 13.04.1995, the trial Court answered the aforesaid issue regarding title, ownership and possession in the affirmative in favour of the appellant and, therefore, it answered the remaining issues in his favour, thereby decreeing suit. The respondent was directed to remove the construction over the suit property within 30 days from the date of the decision.

5. Aggrieved by the same, the respondent filed appeal before the District Court, Gondia. It was submitted on behalf of the respondent before the District Court that the findings on the question of title rendered by the trial court was perverse and that, therefore, all the consequential findings rendered against the respondent were unsustainable. By its judgment and order dated 12.12.2000, the Appellate Court (District Court) allowed the appeal of the respondent, holding that the evidence adduced by the appellant was not sufficient for accepting that he was the owner of the suit property. The appellate Court found that, other than the revenue records and the order permitting conversion of suit property for non-agricultural use, there was no reliable document to show that the appellant was indeed the owner and holding title in respect of the suit property. The said Court also held that judgment and decree in earlier Regular Civil Suit No. 436 of 1982, which was dismissed and the claim of the appellant had been rejected, was binding on him and that therefore, the grievance raised in the subsequent suit was not maintainable. On this basis, the said Court allowed the appeal and dismissed the suit of the appellant.

6. Aggrieved by the same, the present second appeal has been filed. On 1.3.2004, this Court admitted the second appeal on two substantial questions of law. Thereafter, on 23.02.2018, an additional substantial question of law was framed by this Court. The aforesaid three substantial questions of law, are as follows:-

"(i) Whether the Lower First Appellate Court was right in holding that judgment and decree passed in R.C.S. No. 436/1982 was binding upon the appellant when the subject matter of that suit was land of Gat No. 172 and subject matter of this suit is land of Gat No. 175?

(ii) Whether the Lower First Appellate Court was right in answering the point No. 4 in negative particularly in view of the law laid down by the Supreme Court reported in A.I.R. 1985 S.C. page 857?

(iii) Whether the first appellate Court has rightly reversed the finding recorded by the trial Court that the plaintiff had proved his title?

7. I have heard the learned counsel for the parties on the aforesaid three substantial questions of law. Mr. S.P. Kshirsagar, learned counsel appearing on behalf of the appellant contended that the impugned judgment and order of the appellate Court was wholly erroneous because there was sufficient oral and documentary evidence placed on record, by the appellant, to show that he had title in the suit property and that he was in possession thereof when the suit was filed. It was contended that the respondent himself had brought on record a sale deed at Exh. 61, which demonstrated that the appellant was indeed in ownership and possession of the suit property. It was further contended that the appellate Court erred in holding that the dismissal of earlier suit against the appellant was binding, as a result of which, the present suit was also liable to be dismissed. It was sought to be demonstrated that there were crucial admissions in the evidence of the respondent, particularly the fact that the respondent admitted that he had made construction on Gat No. 172-B, which demonstrated that the claim of the appellant on the basis of oral and documentary evidence was proved. It was also contended that since there was some confusion as regards the exact location of Gat No. 175 i.e. the suit property, it would be in the interest of justice that a Commissioner is appointed by this Court for ascertaining the factual position on the ground. Reliance was placed on the judgments in the case of Vathsala Manickavasagam and others vs. N. Ganesan and another -MANU/SC/0612/2013 : (2013) 9 Supreme Court Cases 152, Sant Lal Jain vs. Avatar Singh - MANU/SC/0295/1985 : AIR 1985 Supreme Court 857 of the Hon'ble Supreme Court and judgments of this Court in the case of Pandurang N. Chandak vs. Sandip M. Pensalwar - 2009 (2) Mh.L.J. 487, Yeshwant Bhaduji Ghuse vs. Vithobaji Laxman Ladekar - MANU/MH/1474/2009 : 2010 (3) Mh.L.J. 956, Ramzan Sheikh Chand Sheikh vs. Punjab Nathuji Gawande - MANU/MH/1419/2014 : 2014 (6) Mh.L.J. 97, Sulemankhan and Ors. vs. Smt. Bhagirathibai and Sadanand Digambar Asalmol - MANU/MH/0403/2014 : 2014 (4) Mh.L.J. 250 and judgment and order in the case of Vijay Manoharrao Naik vs. Diwakar Vithalrao Naik - Second Appeal No. 183 of 2017 (Dt. 8.9.2017).

8. On the other hand, Mr. M.G. Bhangde, learned senior advocate appearing on behalf of the respondent submitted that the appellant had miserably failed to show how he had acquired title and ownership of the suit property and that, therefore, the appellate court was justified in allowing the appeal and dismissing the suit of the appellant. It was contended that the appellant was simply relying upon the revenue records to prove his title, which was not sustainable and that in the plaint he had merely stated that he was in ownership and possession of the suit property, which had been denied by the respondent. The learned senior counsel pointed out that in the cross-examination, the appellant had claimed that suit property was ancestral property and that it had come to him by partition. On the other hand, the appellant was also relying upon sale deed at Exh. 61, which had been executed in his favour by one Devisahay and his own father, which was dated 21.02.1956. The boundaries shown in the plaint as regards the suit property did not match with the boundaries of the property that was subject matter of the aforesaid sale deed at Exh. 61 and that the map at Exh. 52 placed on record, was also of no assistance in identifying and proving that the appellant was in possession of the suit property or that the suit property was indeed owned by the appellant. As the appellant had failed to prove his title and identity the suit property, according to the learned senior counsel appearing on behalf of the respondent, the additional question of law framed by this Court was required to be answered against the appellant and that, therefore, the appeal deserved to be dismissed. On the question of appointment of Commissioner, the learned senior counsel submitted that the present case involved the assertion of the appellant about his title in the suit property and that when he had miserably failed in proving title, there was no ground for appointing a Commissioner to identify the boundaries of the suit property. It was further pointed out that when the respondent had made an application for appointment of Commissioner at Exh. 28 before the trial Court, it was objected to and opposed by the appellant, as a result of which the application was not granted. In this situation, the appellant was now not justified in making a prayer for appointment of Commissioner. The learned senior counsel appearing on behalf of the respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Vasavi Cooperative Housing Society Limited-MANU/SC/0001/2014 : (2014) 2 Supreme Court Cases, 269.

9. Having heard the learned counsel for the parties and upon perusal of record, it is found that the most crucial question to be decided in the present appeal is the additional substantial question of law framed by this Court by order dated 23.02.2018, which is the third question of law quoted above. It pertains to proof of title in the suit property by the appellant and a finding on the same would demonstrate as to whether the impugned judgment and order passed by the appellate Court was justified.

10. It is settled law that when a plaintiff approaches the Court on the basis of title, the burden is entirely upon him to prove his title. The relief claimed by the plaintiff cannot be granted even if the defendants have failed to prove their case. The Hon'ble Supreme Court in the case of Union of India vs. Vasavi Cooperative Housing Society Ltd. (supra) as held as follows:-

"15. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.

16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probablises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration.

17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira - MANU/SC/0181/1958 : AIR 1959 SC 31 observed that

"20 ...in a suit (for declaration) if the plaintiffs are to succeed, they must do so on the strength of their own title."

18. In Nagar Palika, Jind v. Jagat Singh, MANU/SC/0260/1995 : (1995) 3 SCC 426, this Court held as under:

"the onus to prove title to the property in question was on the plaintiff-respondent. ....In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."

19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."

11. In the present case, although the appellant (plaintiff) has styled the suit as one for permanent and mandatory injunction, he has proceeded by boldly claiming in the plaint that he owns and possesses the suit property. This has been denied by the respondent (defendant). The trial Court has specifically framed issue No. 1 as "Does the plaintiff prove his title, ownership and possession over the suit property?" Thus, the said position of law applies in the present case also. In order to prove title in the suit property, the appellant has placed on record Exhs. 50 to 53 as documentary evidence. Exhs. 50 and 51 are 7/12 extracts i.e. revenue record, while Exh. 52 is a map showing various Gat numbers and Exh. 53 is the order whereby permission for non-agricultural use for Gat No. 175 was granted. In these documents, there are no details of the location of the suit property i.e. Gat No. 175 and there are no boundaries specified. Even the map at Exh. 52 is of no assistance because it simply shows Gat Numbers from 170 to 178 on one side of the road. In any case, being revenue records, they cannot be treated as proof of title. In the plaint, the appellant has made a bald statement that he is owner and in possession of the suit property of Gat No. 175. Boundaries of the said suit property are specified while the right and title in the same has not been stated or traced in the plaint. It is only in the oral evidence, in cross-examination that the appellant has stated that the suit property is ancestral property that he has acquired it by way of partition. No details regarding title of his predecessor in Gat No. 175 have been placed on record and there are no details of the alleged partition, whereby the appellant allegedly acquired title in the suit property at Gat No. 175.

12. Faced with this situation, the learned counsel appearing on behalf of the appellant, submitted that it was the respondent who had made certain admission in his evidence, which demonstrated that the appellant had title in the suit property at Gat No. 175. In this context, reliance was placed on sale deed at Exh. 61 dated 21.05.1956 executed by one Devisahay and Ganuji (father of the appellant), in favour of the appellant. A perusal of the aforesaid document, shows that the four boundaries specified therein do not match with the four boundaries of suit property at Gat No. 175 specified by the appellant in the plaint. There is no mention of Gat No. 175 in the aforesaid sale deed at Exh. 61 and when the appellant had asserted that the suit property was located in Kh. No. 148/22, the sale deed at Exh. 61 mentions only Kh. No. 148 and there are no further details therein. Therefore, even the said document at Exh. 61 is of no assistance to the appellant to show his title in the suit property at Gat No. 175. Another document at Exh. 60 also becomes relevant for the present case because it is a sale deed dated 20.02.1953 executed by Mahekulal Gupta in favour of Ganuji (father of the appellant) and the said Devisahay. The description of the property, which is a subject matter of the sale deed at Exh. 60, is also of no assistance to show that the appellant indeed had title in suit property at Gat No. 175. The aforesaid sale deed at Exh. 60 also refers to only Kh. No. 148. It appears that the appellant has sought to demonstrate that his father Ganuji and the said Devisahay had together purchased a large piece of land by the sale deed at Exh. 60 and that thereafter, smaller pieces of land had come into the ownership and possession of various persons, including the suit property at Gat No. 175. But, there is nothing to show that the appellant had indeed acquired ownership, title and possession of the suit property at Gat No. 175, either through the sale deed at Exh. 61 or through any document showing partition or tracing title and ownership of the appellant in the suit property. Thus, reliance placed by the learned counsel for the appellant on the judgment of the Hon'ble Supreme Court in the case of Vathsala vs. N. Ganesan (supra) for alleged admissions made by the respondent, is wholly misplaced. In any case, none of the alleged admissions can be said to be clear, certain or without any ambiguity, as mandated under the said position of law.

13. The trial Court has given finding in favour of the appellant as regards title in the suit property mainly on the basis of documents at Exhs. 50 to 53, which are revenue records. There is no effort made by the trial Court to inquire as to what is the basis and proof placed on record by the appellant to prove his title and ownership in the suit property. In the impugned judgment and order, the appellate Court has examined the oral and documentary evidence in a proper manner. It has found that the appellant has failed to produce any document of title, although a bald assertion has been made in the plaint as regards ownership and title in the suit property. The appellate Court has analysed the description of the suit property and the boundaries thereof given in the plaint and upon comparing the same, with claims made in the earlier suit filed by the appellant pertaining to Gat No. 172, it has found that there is nothing on record to show that the appellant was in ownership and possession of the suit property. Since the appellant has failed to place on record cogent, documentary or oral evidence to prove his title in the suit property, the finding rendered by the appellate Court in that regard cannot be said to be perverse or found fault with.

14. As regards the prayer made on behalf of the appellant that a Commissioner be appointed, claiming that there was some confusion regarding exact location and boundaries of the suit property, the appellant was first required to bring some evidence either oral or documentary to prove title in the suit property and thereafter, such a prayer for appointment of Commissioner could have been considered. The judgments relied upon by the learned counsel appearing on behalf of the appellant in respect of appointment of Commissioner pertain to a totally different factual scenario. In all those cases, the question of encroachment was being considered while in the present case the very proof of title and ownership is wanting and, therefore, appointment of Commissioner is not warranted in the present case. Even otherwise, when the respondent had applied for appointment of Commissioner at Exh. 28 before the trial Court, the appellant had opposed the same and the application was not granted. This demonstrates that the appellant was himself not having any document to support his claim of title and that, therefore, the appointment of Commissioner would not take his case any further. Hence, the said request made on behalf of the appellant is rejected.

15. The question of title in the present case goes to the very root of the matter and the entire claim made in the suit for permanent and mandatory injunction on behalf of the appellant stands or falls on the basis of answer to the said question. Having found that the appellant had no title in the suit property, the appellate Court was justified in allowing the appeal and dismissing the suit of the appellant. As regards the question as to whether the decree in the earlier suit bearing Regular Civil Suit No. 436 of 1982 was binding upon the appellant, in the context of the prayers made in the subsequent suit, a perusal of the description of the suit properties in the two suits shows that the appellant (plaintiff in both the suits) has given the four boundaries of the suit properties, which are different from one another. In fact, the appellate Court has commented upon the same while analysing whether the appellant has been able to properly describe the suit property in the subsequent suit. A comparison of the four boundaries of the suit properties in the two suits shows that the appellant has referred to two separate pieces of land. This is evident from a bare perusal of decree in the earlier suit at Exh. 59 and the plaint in the present case. This is noted by the appellate Court in its judgment and yet it has gone ahead to hold that the appellant was claiming same property in both the suits. On this basis, the learned appellate Court has held that when the appellant failed to challenge the judgment and order against him in the earlier suit, it was binding on him and he could not claim relief in the subsequent suit. This observation of the appellate Court does not appear to be correct, yet, it has no bearing on the relief claimed by the appellant in the subsequent suit because, as held hereinabove, the appellant has miserably failed to prove title, ownership and possession in the suit property and, therefore, the said error committed by the appellate Court would not come to the rescue of the appellant.

16. The remaining question pertaining to whether the appellate Court was justified in holding that the appellant was not justified in claiming prohibitory and mandatory injunction, without claiming possession, in view of the fact that the question of title itself has not been proved by the appellant, the said question pales into insignificance. Even if it is held that the suit filed by the appellant only for prohibitory and mandatory injunction, without claiming possession was maintainable, the same could still not be decreed when the fundamental question going to the very root of the matter regarding title has been answered against the appellant. Thus, reliance placed by the learned counsel for the appellant on the judgment of the Hon'ble Supreme Court in the case of Sant Lal Jain vs. Avtar Singh (supra), is of no consequence.

17. The appellant has not been able to prove his assertion of title and possession in the suit property and findings in that regard have been correctly arrived at by the appellate court. While the appellant has made a bald statement in plaint regarding ownership and title in the suit property, in the oral evidence he has claimed that the suit property is ancestral property and that it was acquired by him through partition, but, no cogent and documentary evidence has been placed on record regarding the same. The other evidence on record, in the form of sale deeds at Exhs. 60 and 61 also do not support the case of the appellant and, therefore, it is only the revenue records on which the appellant has relied. Even these revenue records and the map at Exh. 52 on record do not give any description of the boundaries of the suit property and they certainly cannot be held to be proof of title by the appellant in the suit property. The appellant cannot claim decree in his favour merely because the respondent-defendant could not bring on record evidence to show that he had constructed wall on Gat No. 172-B. Being the plaintiff, it was for the appellant to prove his case and stand on his own legs, rather than seeking relief on the weakness of the case of the respondent-defendant. In this backdrop, no error can be found with the impugned judgment and order of the appellate court.

18. Accordingly, the appeal is dismissed with no order as to costs.


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