It appears basically a case of prior possession of the plaintiff
on the ground that suit house was acquired by her father Ukandrao during
his lifetime.
According to plaintiff, her father Ukandrao died in the year
1968 and house property in question was left in possession of her mother
Yanuna and after death of Yamuna, the plaintiff as an legal heir came into
her possession. In effect, therefore, the plaintiff had inherited the suit
house from her parents although sale deed was not produced on record to
establish that suit house was purchased by Ukandrao. It cannot be
disputed that after Ukandrao died in the year 1968, then it was left in
possession of the plaintiff’s mother in the year 1984 and then after the
death of her mother, the plaintiff came into possession of the suit house.
The 1st defendant had dispossessed the plaintiff of suit house without prior
permission by plaintiff Nanibai. Thus, it was longstanding
possession
supported by entries in Gram panchayat record, payment of electricity bill
and village panchayat taxes. It is pertinent to note that in 1st appellate
court, plea of tenancy was also raised by the appellant which was
negatived. Under these circumstances, defendant no. 1 could not have set
up title in other defendants or in himself for to protect his possession over
suit house. It is policy of civil law that no person can forcibly dispossess
without having legal recourse or availing the remedy available at law. In
the present case, plaintiff had availed of remedy according to law to
recover possession of suit house on the basis of her prior possession and
title on the premise of her inherited longstanding
possession over the suit
house. Even if assuming for the sake of argument that registered sale deed
was not tracable nor produced in order to establish ownership of Ukandrao
as purchaser of suit house, the fact that Ukandrao was in possession of suit
property till his death and after him, his widow Yamuna succeeded and
then the suit house was inherited by plaintiff Nanibai, the entries in village
panchayat record, evidence regarding payment of village panchayat taxes,
electricity bills etc. strengthened the case of the plaintiff to claim that she
was rightful owner of the suit house for to re-enter
into possession of suit
house.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 420 of 1997
Smt Shantabai Sonba Madavi, Vs Sau Nanibai Udebhan Uike,
Coram : A. P. Bhangale, J
Dated : 29th January 2014
Citation; 2014(4) ALLMR 520 BOM
1. The second appeal was admitted on 13.1.1998 on the
following substantial questions of law stated in memo of appeal as 7.3 and
7. 4 –
“7.3 Whether the courts below were justified in decreeing the suit
by holding that even if there is no document of title in her favour, the
respondent no.1 has perfected her title by adverse possession, thereby
completely contravening the test of doctrine of adverse possession ?
7.4 – Whether the courts below were justified in granting decree of
possession without determining the status of the appellant as to whether
he was a licensee or a trespasser, in absence thereof no decree for mesne
profit could be passed under Order 20, rule 12 of the Civil Procedure
Code ?”
2. The second appeal is directed against the judgment and order
dated 19.9.1997 delivered by the Additional District Judge, Wardha in RCA
No. 161 of 1995 which was dismissed with costs. The said Regular Civil
Appeal arose from the judgment and order dated 19.7.1995 passed in RCS
No. 50 of 1993 by learned Civil Judge, JD, Pulgaon who was pleased to
decree the suit.
3. The facts which appear briefly are as under One
Ukandrao Maraskolhe was occupant of the suit house
consisting of two rooms bearing GP No. 482 situated at village Rohna,
Tahsil Arvi, District Wardha. The house was admeasuring 65 x 18 feet and
some portion of the plot was open. It is contended that said Ukandrao was
in long possession of the suit property claiming ownership thereof. He died
in the year 1968, leaving behind his widow Yamuna and his daughter
Nanibai (original plaintiff) who had instituted the suit in the trial Court on
the ground that her father was exclusive owner of the suit property. He
used to pay house tax and electricity bill in respect of the house. After
marriage of plaintiff Nanibai in the year 1975, she went to Seloo, but after
death of her mother Yamunabai, the suit house was locked by her. In the
month of July 1984, plaintiff came to know that defendant Sonba Shamji
took forcible possession of the suit house. According to plaintiff, when she
locked the suit house, she had entrusted key to Harishchandra Wahake and
requested him to look after the suit property.
4. The plaintiff came to know about forcible dispossession by
defendant no. 1 Sonba. Defendant no. 1 told the plaintiff that he is ready
to purchase it, but subsequently, he declined to purchase it and refused to
give possession of suit house to the plaintiff by notice dated 1st January
1985. The plaintiff gave reply to the notice on 21.1.1985 and demanded
possession from defendant no. 1. Defendant no. 1 refused to hand over
possession contending that suit house is owned by defendant no. 2
Shamrao Janglu Irpate and also contended that defendant no.3 Ramdas
Govindrao Irpate is real owner of suit house. Thus, defendant no. 1 Sonba
disputed title and prior possession of plaintiff and refused to vacate the
suit house.
5. Parties went to trial. Learned trial Judge upon framing issues
and after evidence was led by the parties, recorded findings of facts that
plaintiff is owner of the suit house and was in possession while defendant
no. 1 Sonba took forcible possession of suit house in the year 1984. Thus,
the contention of defendant no. 1 that suit house was owned by other
defendants was negatived. The claim as to alleged tenancy pleaded by
defendant no. 1 Sonba was also held as not proved. Thus, according to
trial Court, it was revealed from evidence that there was sufficient evidence
to prove that the plaintiff was in prior possession of the suit house since he
was dispossessed by defendant no. 1 of the suit house. Trial Court also
held that plaintiff was owner of the suit house and is entitled to get
declaration accordingly while against defendant no. 1 it was held that he
took forcible possession of the suit house which was in possession of the
plaintiff. The trial Court further ordered mesne profit in respect of the
income of suit house for the period during which it was possessed by
defendant no. 1. Thus, the suit was decreed with costs on the ground that
plaintiff is owner of suit house and was entitled to possession as well as
mesne profits in respect of the same.
6. The widow of unsuccessful defendant questioned the decree
in RCA No. 161 of 1995 in the District Court at Wardha. 1st appellate
Court reiterated the findings of fact that plaintiff had proved her titled to
the suit property. The claim as to tenancy of defendant no. 1 in respect of
suit house was negatived and it was held that plaintiff was entitled to the
relief of declaration on the ground of ownership and was held entitled to
possession. Thus, by a detailed and wellreasoned
judgment, 1st appellate
Court dismissed the appeal with costs.
7. The substantial questions of law which were formulated by this
Court are mainly to find out whether there was justification by both the
Courts below to pass decree for possession in favour of the plaintiff in the
light of legal position and findings recorded by the Courts below in this
regard.
8. Learned counsel for appellant submitted that there was no
proof of ownership of suit property on record as no sale deed was produced
by or on behalf of plaintiff in order to establish that Ukandrao was owner
of the suit property. According to learned counsel for appellant, plaintiff
could not have proved adverse possession in respect of suit house as she
was admittedly a married woman, resided at Seloo and in the absence of
documentary evidence in her favour of ownership mere fact that entries
were made in Gram Panchayat record as she was paying taxes and
electricity bill in respect of suit house, finding as to her ownership and her
title ought not to have been recorded in her favour. Even the alternative
plea that she perfected her title by virtue of adverse possession deserves
rejection. Further, it is submitted that both the Courts below did not record
positive finding on the ground as to whether appellant was either licensee
or trespasser so as to order enquiry into mesne profits as against the
appellant.
9. On the other hand, learned counsel for the respondent
submitted that both the Courts below recorded concurrent findings of fact
in favour of plaintiff to hold her as owner of the suit house and entitled to
possession of the suit house. It is contended that since defendant no. 1
took forcible possession of the suit house in the year 1984 and tried to set
out title in favour of other defendants no. 2 and 3, defendant no. 1 was
liable to face inquiry into mesne profits on account of holding possession of
suit house wrongfully for the period during which he had dispossessed the
plaintiff and had deprived her of right to possess the suit house.
10. Apart from submissions advanced on merits of the appeal,
learned advocate for the appellant made reference to Abasaheb Bali
Gharge & anr v. Balaji Ramhari Gharge reported in 1996 (1) Mh. L. J.
209 making reference to headnote
(e) contending that mere mutation
entries or entries in the Gram Panchayat record cannot be considered as
sufficient evidence of title in favour of plaintiff that she is entitled to
possession. This Court in the aforesaid case was considering the settled
legal position that mutation entries or entries in the Record of Right are
made only for the purpose of recovering revenue and that itself cannot be
treated as proof of title of holder of the property in favour of whom such
entries are made. In the said case, ultimately the learned single Judge of
this Court held that the plaintiff in that case had title to the property in
question as she had perfected title to the suit property by virtue of adverse
possession. The second appeal was thus dismissed.
11. Learned counsel for appellant also made reference to Konda
Lakshmana Bapuji v. Govt of AP & ors reported in (2002) 3 SCC 258 as
regards plea of adverse possession that it is a mixed question of law and
fact. In that case it was held that mere fact of construction of building by
possessor with the permission of the Court did not amount to his
permissive possession. The Apex Court held that the question of a person
perfecting title by adverse possession is a mixed question of law and fact.
It must be shown by the person claiming title by prescription that he has
been in possession of the land for the statutory period which is adequate in
continuity, in publicity and in extent with the animus of holding the land
adverse to the true owner.
12. In the present case, both the Courts below have noted that
plea of adverse adverse possession by the plaintiff was alternative. The suit
claim of the plaintiff was primarily on the basis of title that it was her
ancestral property acquired by her father and inherited by her of which
defendant no. 1 took forcible possession from her caretaker in the year
1984 while she was married woman residing at Seloo.
13. Learned counsel for respondent contended that both the
Courts below recorded concurrent findings of fact regarding right of the
plaintiff to own and recover possession of the suit house and, therefore, in
second appeal, this Court would not disturb the concurrent findings of fact
recorded by the two courts below. Reference is made to paragraph 7 in
Vasantiben Prahladji Nayak & ors v. Somnath Muljibhai and ors
reported in (2004) 3 SCC 376 to submit that when concurrent findings of
fact are recorded by the courts below regarding possession of suit land and
regarding payment of revenue, cess, property taxes paid by person whose
name appeared in Panchayat or Revenue record, then in view of concurrent
findings of fact on the issues in question, the Apex Court did not see reason
to interfere in the matter.
14. Reference is also made to ruling in Azizi v. Mehree & ors
reported (2004) 10 SCC 762. Learned counsel for respondent invited my
attention to paragraph 6 of the ruling. He submits that findings of fact
recorded by the trial Court and 1st appellate Court ought not to be
interfered with in view of Section 100 of the Code of Civil Procedure. In
the case of Azizi v. Mehree & ors (supra) also the Apex Court had
considered the appeal by Special Leave partly and only regarding share in
the suit for partition which should have been decreed.
15. It appears basically a case of prior possession of the plaintiff
on the ground that suit house was acquired by her father Ukandrao during
his lifetime.
According to plaintiff, her father Ukandrao died in the year
1968 and house property in question was left in possession of her mother
Yanuna and after death of Yamuna, the plaintiff as an legal heir came into
her possession. In effect, therefore, the plaintiff had inherited the suit
house from her parents although sale deed was not produced on record to
establish that suit house was purchased by Ukandrao. It cannot be
disputed that after Ukandrao died in the year 1968, then it was left in
possession of the plaintiff’s mother in the year 1984 and then after the
death of her mother, the plaintiff came into possession of the suit house.
The 1st defendant had dispossessed the plaintiff of suit house without prior
permission by plaintiff Nanibai. Thus, it was longstanding
possession
supported by entries in Gram panchayat record, payment of electricity bill
and village panchayat taxes. It is pertinent to note that in 1st appellate
court, plea of tenancy was also raised by the appellant which was
negatived. Under these circumstances, defendant no. 1 could not have set
up title in other defendants or in himself for to protect his possession over
suit house. It is policy of civil law that no person can forcibly dispossess
without having legal recourse or availing the remedy available at law. In
the present case, plaintiff had availed of remedy according to law to
recover possession of suit house on the basis of her prior possession and
title on the premise of her inherited longstanding
possession over the suit
house. Even if assuming for the sake of argument that registered sale deed
was not tracable nor produced in order to establish ownership of Ukandrao
as purchaser of suit house, the fact that Ukandrao was in possession of suit
property till his death and after him, his widow Yamuna succeeded and
then the suit house was inherited by plaintiff Nanibai, the entries in village
panchayat record, evidence regarding payment of village panchayat taxes,
electricity bills etc. strengthened the case of the plaintiff to claim that she
was rightful owner of the suit house for to reenter
into possession of suit
house.
16. Regarding plea of adverse possession, stray act of trespass
cannot ripen into adverse possession. The courts below found that plea
tenancy was made by 1st defendant which was negatived. Under these
circumstances, when there was specific plea of tenancy which was raised by
1st defendant and negatived by 1st appellate Court, it was not necessary for
the Courts below to record finding regarding licence created in favour of
1st defendant or an act of trespass negatived by 1st appellate Court, it was
not necessary to record finding regarding licence or trespass on the part of
1st defendant. Hence, conclusions by the trial court and 1st appellate court
regarding the findings of fact as to possessory title of the plaintiff and her
prior possession and right to recover possession of suit house were pure
questions of fact answered by the courts below. For reasons stated
therefore, the 2nd appellate Court need not enter into the question as to
whether Nanibai had perfected her title by adverse possession and
furthermore, as to whether appellant was either licensee or trespasser.
Suffice it to say that appellant was in wrongful possession of the suit house
since she trespassed in the suit house in the year 1984, and also refused to
vacate the suit house and entered into communication with the plaintiff,
first, offering to purchase the suit house and then resisted claim by refusing
to vacate the suit house by issuing legal notice. As defendant no. 1 on
some plea or the other plea like tenancy continued to hold over possession
of the suit house, then for such period of wrongful possession, defendant
no.1 was answerable for payment of mesne profit as the suit was for
recovery of suit house and enquiry was necessary as to what would have
been fair return or mesne profit from the date of institution of suit till
delivery of possession of suit house to the decreeholder.
That being so, no
fault can be found with the trial Court who ordered enquiry into mesne
profit under Order XX, rule 12 of the Code of Civil Procedure. For all the
aforesaid reasons, considering that right to prefer second appeal is neither
natural or inherent, but it is a substantive statutory right regulated by law
contained in Section 100 of CPC apart from my view that both the Courts
below were justified to decree the suit for possession and mesne profits and
in the facts and circumstances of the case, the Courts below were not
bound to record findings as to whether defendant no. 1 was licensee or
trespasser moreso when he had pleaded tenancy, I must answer both the
substantial questions of law accordingly in the negative. In my considered
view, notwithstanding ingenuity in framing them in memorandum of
appeal by learned Advocate for appellant, substantial question of law as to
whether both the courts below were justified in decreeing the suit, must be
answered in the affirmative.
17. In the result, appeal is dismissed with costs. Learned counsel
for appellant at this stage prays for stay of possession as he wishes to
challenge this judgment by adopting a remedy in higher forum. Learned
counsel for respondent objected on the ground that appellant was in
wrongful possession since long and enquiry into mesne profit is pending.
I think, provisional sum towards arrears of mesne profit must be deposited
by appellant in the executing court while application for mesne profit
remains pending in the sum of Rs. 50,000/in
order to show his bonafides
within a period of six weeks from today. Subject to this as a condition
precedent, there shall be stay of possession for a period of three months
from today.
A. P. BHANGALE, J
on the ground that suit house was acquired by her father Ukandrao during
his lifetime.
According to plaintiff, her father Ukandrao died in the year
1968 and house property in question was left in possession of her mother
Yanuna and after death of Yamuna, the plaintiff as an legal heir came into
her possession. In effect, therefore, the plaintiff had inherited the suit
house from her parents although sale deed was not produced on record to
establish that suit house was purchased by Ukandrao. It cannot be
disputed that after Ukandrao died in the year 1968, then it was left in
possession of the plaintiff’s mother in the year 1984 and then after the
death of her mother, the plaintiff came into possession of the suit house.
The 1st defendant had dispossessed the plaintiff of suit house without prior
permission by plaintiff Nanibai. Thus, it was longstanding
possession
supported by entries in Gram panchayat record, payment of electricity bill
and village panchayat taxes. It is pertinent to note that in 1st appellate
court, plea of tenancy was also raised by the appellant which was
negatived. Under these circumstances, defendant no. 1 could not have set
up title in other defendants or in himself for to protect his possession over
suit house. It is policy of civil law that no person can forcibly dispossess
without having legal recourse or availing the remedy available at law. In
the present case, plaintiff had availed of remedy according to law to
recover possession of suit house on the basis of her prior possession and
title on the premise of her inherited longstanding
possession over the suit
house. Even if assuming for the sake of argument that registered sale deed
was not tracable nor produced in order to establish ownership of Ukandrao
as purchaser of suit house, the fact that Ukandrao was in possession of suit
property till his death and after him, his widow Yamuna succeeded and
then the suit house was inherited by plaintiff Nanibai, the entries in village
panchayat record, evidence regarding payment of village panchayat taxes,
electricity bills etc. strengthened the case of the plaintiff to claim that she
was rightful owner of the suit house for to re-enter
into possession of suit
house.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 420 of 1997
Smt Shantabai Sonba Madavi, Vs Sau Nanibai Udebhan Uike,
Coram : A. P. Bhangale, J
Dated : 29th January 2014
Citation; 2014(4) ALLMR 520 BOM
1. The second appeal was admitted on 13.1.1998 on the
following substantial questions of law stated in memo of appeal as 7.3 and
7. 4 –
“7.3 Whether the courts below were justified in decreeing the suit
by holding that even if there is no document of title in her favour, the
respondent no.1 has perfected her title by adverse possession, thereby
completely contravening the test of doctrine of adverse possession ?
7.4 – Whether the courts below were justified in granting decree of
possession without determining the status of the appellant as to whether
he was a licensee or a trespasser, in absence thereof no decree for mesne
profit could be passed under Order 20, rule 12 of the Civil Procedure
Code ?”
2. The second appeal is directed against the judgment and order
dated 19.9.1997 delivered by the Additional District Judge, Wardha in RCA
No. 161 of 1995 which was dismissed with costs. The said Regular Civil
Appeal arose from the judgment and order dated 19.7.1995 passed in RCS
No. 50 of 1993 by learned Civil Judge, JD, Pulgaon who was pleased to
decree the suit.
3. The facts which appear briefly are as under One
Ukandrao Maraskolhe was occupant of the suit house
consisting of two rooms bearing GP No. 482 situated at village Rohna,
Tahsil Arvi, District Wardha. The house was admeasuring 65 x 18 feet and
some portion of the plot was open. It is contended that said Ukandrao was
in long possession of the suit property claiming ownership thereof. He died
in the year 1968, leaving behind his widow Yamuna and his daughter
Nanibai (original plaintiff) who had instituted the suit in the trial Court on
the ground that her father was exclusive owner of the suit property. He
used to pay house tax and electricity bill in respect of the house. After
marriage of plaintiff Nanibai in the year 1975, she went to Seloo, but after
death of her mother Yamunabai, the suit house was locked by her. In the
month of July 1984, plaintiff came to know that defendant Sonba Shamji
took forcible possession of the suit house. According to plaintiff, when she
locked the suit house, she had entrusted key to Harishchandra Wahake and
requested him to look after the suit property.
4. The plaintiff came to know about forcible dispossession by
defendant no. 1 Sonba. Defendant no. 1 told the plaintiff that he is ready
to purchase it, but subsequently, he declined to purchase it and refused to
give possession of suit house to the plaintiff by notice dated 1st January
1985. The plaintiff gave reply to the notice on 21.1.1985 and demanded
possession from defendant no. 1. Defendant no. 1 refused to hand over
possession contending that suit house is owned by defendant no. 2
Shamrao Janglu Irpate and also contended that defendant no.3 Ramdas
Govindrao Irpate is real owner of suit house. Thus, defendant no. 1 Sonba
disputed title and prior possession of plaintiff and refused to vacate the
suit house.
5. Parties went to trial. Learned trial Judge upon framing issues
and after evidence was led by the parties, recorded findings of facts that
plaintiff is owner of the suit house and was in possession while defendant
no. 1 Sonba took forcible possession of suit house in the year 1984. Thus,
the contention of defendant no. 1 that suit house was owned by other
defendants was negatived. The claim as to alleged tenancy pleaded by
defendant no. 1 Sonba was also held as not proved. Thus, according to
trial Court, it was revealed from evidence that there was sufficient evidence
to prove that the plaintiff was in prior possession of the suit house since he
was dispossessed by defendant no. 1 of the suit house. Trial Court also
held that plaintiff was owner of the suit house and is entitled to get
declaration accordingly while against defendant no. 1 it was held that he
took forcible possession of the suit house which was in possession of the
plaintiff. The trial Court further ordered mesne profit in respect of the
income of suit house for the period during which it was possessed by
defendant no. 1. Thus, the suit was decreed with costs on the ground that
plaintiff is owner of suit house and was entitled to possession as well as
mesne profits in respect of the same.
6. The widow of unsuccessful defendant questioned the decree
in RCA No. 161 of 1995 in the District Court at Wardha. 1st appellate
Court reiterated the findings of fact that plaintiff had proved her titled to
the suit property. The claim as to tenancy of defendant no. 1 in respect of
suit house was negatived and it was held that plaintiff was entitled to the
relief of declaration on the ground of ownership and was held entitled to
possession. Thus, by a detailed and wellreasoned
judgment, 1st appellate
Court dismissed the appeal with costs.
7. The substantial questions of law which were formulated by this
Court are mainly to find out whether there was justification by both the
Courts below to pass decree for possession in favour of the plaintiff in the
light of legal position and findings recorded by the Courts below in this
regard.
8. Learned counsel for appellant submitted that there was no
proof of ownership of suit property on record as no sale deed was produced
by or on behalf of plaintiff in order to establish that Ukandrao was owner
of the suit property. According to learned counsel for appellant, plaintiff
could not have proved adverse possession in respect of suit house as she
was admittedly a married woman, resided at Seloo and in the absence of
documentary evidence in her favour of ownership mere fact that entries
were made in Gram Panchayat record as she was paying taxes and
electricity bill in respect of suit house, finding as to her ownership and her
title ought not to have been recorded in her favour. Even the alternative
plea that she perfected her title by virtue of adverse possession deserves
rejection. Further, it is submitted that both the Courts below did not record
positive finding on the ground as to whether appellant was either licensee
or trespasser so as to order enquiry into mesne profits as against the
appellant.
9. On the other hand, learned counsel for the respondent
submitted that both the Courts below recorded concurrent findings of fact
in favour of plaintiff to hold her as owner of the suit house and entitled to
possession of the suit house. It is contended that since defendant no. 1
took forcible possession of the suit house in the year 1984 and tried to set
out title in favour of other defendants no. 2 and 3, defendant no. 1 was
liable to face inquiry into mesne profits on account of holding possession of
suit house wrongfully for the period during which he had dispossessed the
plaintiff and had deprived her of right to possess the suit house.
10. Apart from submissions advanced on merits of the appeal,
learned advocate for the appellant made reference to Abasaheb Bali
Gharge & anr v. Balaji Ramhari Gharge reported in 1996 (1) Mh. L. J.
209 making reference to headnote
(e) contending that mere mutation
entries or entries in the Gram Panchayat record cannot be considered as
sufficient evidence of title in favour of plaintiff that she is entitled to
possession. This Court in the aforesaid case was considering the settled
legal position that mutation entries or entries in the Record of Right are
made only for the purpose of recovering revenue and that itself cannot be
treated as proof of title of holder of the property in favour of whom such
entries are made. In the said case, ultimately the learned single Judge of
this Court held that the plaintiff in that case had title to the property in
question as she had perfected title to the suit property by virtue of adverse
possession. The second appeal was thus dismissed.
11. Learned counsel for appellant also made reference to Konda
Lakshmana Bapuji v. Govt of AP & ors reported in (2002) 3 SCC 258 as
regards plea of adverse possession that it is a mixed question of law and
fact. In that case it was held that mere fact of construction of building by
possessor with the permission of the Court did not amount to his
permissive possession. The Apex Court held that the question of a person
perfecting title by adverse possession is a mixed question of law and fact.
It must be shown by the person claiming title by prescription that he has
been in possession of the land for the statutory period which is adequate in
continuity, in publicity and in extent with the animus of holding the land
adverse to the true owner.
12. In the present case, both the Courts below have noted that
plea of adverse adverse possession by the plaintiff was alternative. The suit
claim of the plaintiff was primarily on the basis of title that it was her
ancestral property acquired by her father and inherited by her of which
defendant no. 1 took forcible possession from her caretaker in the year
1984 while she was married woman residing at Seloo.
13. Learned counsel for respondent contended that both the
Courts below recorded concurrent findings of fact regarding right of the
plaintiff to own and recover possession of the suit house and, therefore, in
second appeal, this Court would not disturb the concurrent findings of fact
recorded by the two courts below. Reference is made to paragraph 7 in
Vasantiben Prahladji Nayak & ors v. Somnath Muljibhai and ors
reported in (2004) 3 SCC 376 to submit that when concurrent findings of
fact are recorded by the courts below regarding possession of suit land and
regarding payment of revenue, cess, property taxes paid by person whose
name appeared in Panchayat or Revenue record, then in view of concurrent
findings of fact on the issues in question, the Apex Court did not see reason
to interfere in the matter.
14. Reference is also made to ruling in Azizi v. Mehree & ors
reported (2004) 10 SCC 762. Learned counsel for respondent invited my
attention to paragraph 6 of the ruling. He submits that findings of fact
recorded by the trial Court and 1st appellate Court ought not to be
interfered with in view of Section 100 of the Code of Civil Procedure. In
the case of Azizi v. Mehree & ors (supra) also the Apex Court had
considered the appeal by Special Leave partly and only regarding share in
the suit for partition which should have been decreed.
15. It appears basically a case of prior possession of the plaintiff
on the ground that suit house was acquired by her father Ukandrao during
his lifetime.
According to plaintiff, her father Ukandrao died in the year
1968 and house property in question was left in possession of her mother
Yanuna and after death of Yamuna, the plaintiff as an legal heir came into
her possession. In effect, therefore, the plaintiff had inherited the suit
house from her parents although sale deed was not produced on record to
establish that suit house was purchased by Ukandrao. It cannot be
disputed that after Ukandrao died in the year 1968, then it was left in
possession of the plaintiff’s mother in the year 1984 and then after the
death of her mother, the plaintiff came into possession of the suit house.
The 1st defendant had dispossessed the plaintiff of suit house without prior
permission by plaintiff Nanibai. Thus, it was longstanding
possession
supported by entries in Gram panchayat record, payment of electricity bill
and village panchayat taxes. It is pertinent to note that in 1st appellate
court, plea of tenancy was also raised by the appellant which was
negatived. Under these circumstances, defendant no. 1 could not have set
up title in other defendants or in himself for to protect his possession over
suit house. It is policy of civil law that no person can forcibly dispossess
without having legal recourse or availing the remedy available at law. In
the present case, plaintiff had availed of remedy according to law to
recover possession of suit house on the basis of her prior possession and
title on the premise of her inherited longstanding
possession over the suit
house. Even if assuming for the sake of argument that registered sale deed
was not tracable nor produced in order to establish ownership of Ukandrao
as purchaser of suit house, the fact that Ukandrao was in possession of suit
property till his death and after him, his widow Yamuna succeeded and
then the suit house was inherited by plaintiff Nanibai, the entries in village
panchayat record, evidence regarding payment of village panchayat taxes,
electricity bills etc. strengthened the case of the plaintiff to claim that she
was rightful owner of the suit house for to reenter
into possession of suit
house.
16. Regarding plea of adverse possession, stray act of trespass
cannot ripen into adverse possession. The courts below found that plea
tenancy was made by 1st defendant which was negatived. Under these
circumstances, when there was specific plea of tenancy which was raised by
1st defendant and negatived by 1st appellate Court, it was not necessary for
the Courts below to record finding regarding licence created in favour of
1st defendant or an act of trespass negatived by 1st appellate Court, it was
not necessary to record finding regarding licence or trespass on the part of
1st defendant. Hence, conclusions by the trial court and 1st appellate court
regarding the findings of fact as to possessory title of the plaintiff and her
prior possession and right to recover possession of suit house were pure
questions of fact answered by the courts below. For reasons stated
therefore, the 2nd appellate Court need not enter into the question as to
whether Nanibai had perfected her title by adverse possession and
furthermore, as to whether appellant was either licensee or trespasser.
Suffice it to say that appellant was in wrongful possession of the suit house
since she trespassed in the suit house in the year 1984, and also refused to
vacate the suit house and entered into communication with the plaintiff,
first, offering to purchase the suit house and then resisted claim by refusing
to vacate the suit house by issuing legal notice. As defendant no. 1 on
some plea or the other plea like tenancy continued to hold over possession
of the suit house, then for such period of wrongful possession, defendant
no.1 was answerable for payment of mesne profit as the suit was for
recovery of suit house and enquiry was necessary as to what would have
been fair return or mesne profit from the date of institution of suit till
delivery of possession of suit house to the decreeholder.
That being so, no
fault can be found with the trial Court who ordered enquiry into mesne
profit under Order XX, rule 12 of the Code of Civil Procedure. For all the
aforesaid reasons, considering that right to prefer second appeal is neither
natural or inherent, but it is a substantive statutory right regulated by law
contained in Section 100 of CPC apart from my view that both the Courts
below were justified to decree the suit for possession and mesne profits and
in the facts and circumstances of the case, the Courts below were not
bound to record findings as to whether defendant no. 1 was licensee or
trespasser moreso when he had pleaded tenancy, I must answer both the
substantial questions of law accordingly in the negative. In my considered
view, notwithstanding ingenuity in framing them in memorandum of
appeal by learned Advocate for appellant, substantial question of law as to
whether both the courts below were justified in decreeing the suit, must be
answered in the affirmative.
17. In the result, appeal is dismissed with costs. Learned counsel
for appellant at this stage prays for stay of possession as he wishes to
challenge this judgment by adopting a remedy in higher forum. Learned
counsel for respondent objected on the ground that appellant was in
wrongful possession since long and enquiry into mesne profit is pending.
I think, provisional sum towards arrears of mesne profit must be deposited
by appellant in the executing court while application for mesne profit
remains pending in the sum of Rs. 50,000/in
order to show his bonafides
within a period of six weeks from today. Subject to this as a condition
precedent, there shall be stay of possession for a period of three months
from today.
A. P. BHANGALE, J
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