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IN THE HIGH COURT OF BOMBAY
Govind Anant Goltekar
Versus .
Dasharath Deoba Goltekar
Decided on, MARCH 3, 2006
Evidence Act, 1872 - Sections 101 and 114 - Presumption under - Registered sale deed - Genuineness of - A registered sale deed carries presumption of genuineness - Person challenging its genuineness - Burden lies on him to prove that it is not genuine. - The plaintiff had the benefit of presumption in his favour first by virtue of the suit property being in the possession of the sellers of the plaintiff and thereafter of his own. A presumption has the effect of shifting the burden and the burden was certainly on the defendant to displace the presumption arising from the entry of name of the plaintiff in the record of rights.
Specific Relief Act, 1963 - Section 38 - Evidence Act, 1872, Sections 101 and 114 - Suit for injunction simpliciter based on possession - Burden of proof - Sale deed produced by plaintiff to support his title - Burden lies on defendant to show that he had better or prior title - Documentary evidence also produced by plaintiff showing that suit property was in possession of seller of plaintiff and thereafter in possession of plaintiff - Defendant failed to displace presumption of possession - Plaintiff entitled to relief sought. - Burden of proof lies on the person who has to prove a fact and it never shifts. But the onus of proof shifts such a shifting of onus is a continuous process in the evaluation of evidence. I have already stated that the plaintiff had discharged the burden by producing the said 3 documents. The onus that suit property was part of property purchased by his father by Sale Deed dated 26.2.1940 was clearly on the defendant. The defendant did produce Registration Certificate of the said property having No. 32885 but the take is on the West of that property and the suit property cannot be identified with any of the boundaries mentioned therein and this the defendant admitted by stating that the boundaries mentioned on the Registration Certificate are different from the boundaries of the suit property. The defendant thus had failed to discharge the onus which was on him to prove that the suit property alone or along with S.No. 279/3 were parts of the property purchased on 26.2.1940. Even if the predecessors of the plaintiff had no title in themselves they had possession and based on the said possession they had sold the property in favour of the plaintiff and by virtue of the same, the plaintiff had acquired both title and possession to the suit property.
( 2 ) THE plaintiff (since deceased) and now represented by his legal heirs had filed the said Civil Suit praying therein for permanent injunction to restrain the defendant from interfering with the possession of the plaintiff and also for mandatory injunction directing the defendant to remove the haystack put by the defendant in the suit property b.
( 3 ) THE subject matter of the suit were two properties namely, property a known as "cumbiocho Kundgo" having land registration no. 37956 of Book No. 97 and survey no. 278/40. The defendant raised no dispute as regards this property and consequently the learned trial Court partly decreed the suit in respect of suit property a.
( 4 ) THE property b according to the plaintiff was known as "goulan" and had registration no. 17 of Book B45, page 76, and was surveyed under no. 279/16 and was stated to have been purchased by the plaintiff by Sale Deed dated 1131974 from its owners namely, Graciano Fernandes, Francisco Fernandes and his wife Anatil Fernandes and that after its purchase the plaintiff had constructed a stone compound wall around the same which property was on lease with the plaintiff from the time of his father prior to its purchase and the plaintiff was in peaceful possession and enjoyment of the same as absolute owner thereof. The plaintiff had alleged that on or about May, 1984 the defendant with his brutal force had demolished a part of the compound wall of suit property b and dumped dry hay in it in the form of a haystack with a view to annoy and insult the plaintiff and that the defendant had no right or interest whatsoever in any of the suit properties.
( 5 ) THE defendant had contested the suit but only in respect of property b (suit property ). The defendant took threefold pleas. First, that what the plaintiff purchased by Sale deed dated 1131974 is a plot admeasuring 66 sq. metres being part of survey no. 279/3 and shown by the defendant by letters a, B and C on the plan annexed (Exh. DW1/d ). Second, the sellers of the plaintiff namely, the said Graciano Fernandes and two others had no right, title or interest in the said property surveyed under no. 279/16 and the sale Deed was a fraud played on the defendant and was, therefore, null and void. Third, the defendant was the owner in enjoyment of the suit property surveyed under no. 279/16, the same forming part of property known as "toloiavoilem Bata" or "sodiem Bata" having land registration no. 32885 of folio 140 of Book B 84, the same having been purchased by the father of the defendant from the parents of the plaintiff by Sale Deed dated 2621940 and inscribed in the name of defendants father under number 30531 at folio 102 of Book G 35. In other words the defendant pleaded that the suit property surveyed under no. 279/16 was included in the property purchased by Deed dated 2621940. The defendant stated that the suit property surveyed under no. 279/16 was wrongly recorded in the name of Graciano Fernandes which the defendant came to know for the first time after getting the plaint read and that it was wrongly surveyed as property having name "goulan" in the survey records. Although the defendant stated that the suit property surveyed under no. 279/16 was part of property purchased by Deed dated 2621940 the defendant did not state about the other survey numbers which also formed part of the property purchased by Deed dated 2621940 and which is according to the defendant known as "toloiavoilem Bata" or "sodiem Bata".
( 6 ) THE plaintiff examined himself in support of his case and produced the said sale Deed dated 1131974 ( exh. PW1/d), form nos. I and XIV showing the name of Graciano Luciano fernandes at Exh. PW1/e and form nos. I and XIV having his own name (Exh. PW1/f) after the said form nos. I and XIV was changed in his name a
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