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IN THE HIGH COURT OF BOMBAY
R.D. DHANUKA, J.
Ramchandra Yeshwant Desai & Ors. - Appellants
Versus
Krishna Sitaram Desai & Ors. - Respondents
Second Appeal Nos. 599 & 598 of 1993
Decided on : 4-12-2015
Botkhat - Property Dispute - Maharashtra Land Revenue Code, Section 89 - The court discussed the relevance of Botkhat and Akharphod Patrak as documents proving title in respect of the suit property and their sufficiency in law to rebut the presumption arising from the mutation entries. The court held that Botkhat and Akharphod Patrak are deemed to have been made under the provisions of Chapter-V of the Maharashtra Land Revenue Code and are sufficient to rebut the presumption, thus establishing the respondent's title and interest in the land in dispute.
Fact of the Case:
The dispute involved the ownership and possession of a portion of survey no.34, hissa no.4, admeasuring 9 gunthas of village Degve, taluka Sawantwadi, district Sindhudurg. The trial court decreed in favor of the respondents, declaring their entitlement to possession of the land and restraining the appellants from obstructing their possession.
Finding of the Court:
The court found that the respondents had sufficiently established their title and interest in the land in dispute, while the appellants failed to prove their title by adverse possession. The court rejected the plea of adverse possession urged by the appellants.
Issues: The issues included whether Botkhat and Akharphod Patrak were sufficient to rebut the presumption arising from the mutation entries and whether the appellants had perfected their title by adverse possession.
Ratio Decidendi: The court held that Botkhat and Akharphod Patrak are deemed to have been made under the provisions of Chapter-V of the Maharashtra Land Revenue Code and are sufficient to rebut the presumption, thus establishing the respondent's title and interest in the land in dispute.
Final Decision: Both appeals were dismissed as the court found no merit for interference with the impugned orders passed by the trial court and the lower appellate court.
1. By consent of the parties, both these second appeals are heard together and are disposed of by a common judgment.
2. The appellant no.1 in Second Appeal No.599 of 1993 was the original defendant no.1 before the trial Court and was appellant in Civil Appeal No.30 of 1985. The appellant nos.2 and 3 are the original defendant nos.2 and 3 respectively before the trial Court and were appellant nos.2 and 3 in Civil Appeal No.30 of 1985. The respondent nos.1, 2 and 3 were the original plaintiffs before the trial Court and were respondent nos.1, 2 and 3 in Civil Appeal No.30 of 1985.
3. Insofar Second Appeal No.598 of 1993 is concerned, the appellant to the said appeal was the original plaintiff before the trial Court and the appellant in Civil Appeal No.33 of 1985. The respondents to the second appeal were the original defendants before the trial Court and were the respondents in Civil Appeal No.33 of 1985. Common evidence was led by the parties in both the suits.
4. Some of the relevant facts for the purpose of deciding these appeals are as under :
The suit property which is the subject matter of both the proceedings is a portion of survey no.34, hissa no.4, admeasuring 9 gunthas of village Degve, taluka Sawantwadi, district Sindhudurg (hereinafter referred to as the “suit property”).
5. Some time in the year 1981 the respondent nos.1 to 3 in the Second Appeal No.599 of 1993 filed a suit before the learned Civil Judge, Junior Division, Sawantwadi, inter-alia praying for declaration and injunction against the defendants (the appellants herein).
6. Some time in the year 1981, the appellants herein (original plaintiffs in RCS No.152 of 1981) filed a suit against the respondents herein (original defendants to the said suit) RCS No.152of 1981 interalia praying for injunction against the defendants therein on the ground that the appellant (original plaintiff) was the owner and was in possession of the suit property.
7. On 21st December, 1984, the learned trial Judge decreed RCS No.123 of 1981 filed by the respondents herein and declared that the respondents herein (original plaintiffs) were entitled to possession of 9 gunthas from survey no.34, hissa no.4, which were included out of the old survey no.35, Falani no.5 and passed an order of injunction restraining the defendants from obstructing the plaintiffs' possession. Similarly the learned trial Judge in RCS No.152 of 1981, which was filed by the appellant in Second Appeal No.598 of 1993 decreed the said suit partly and restrained the defendants thereto (respondents to the second appeal) permanently from obstructing the plaintiffs' possession in respect of the said land excluding 9 gunthas originally from survey no.35, Falani no.5.
8. Being aggrieved by the decree passed by the trial Court in RCS No.123 of 1981, the appellant no.1 in Second Appeal No.599 of 1993 filed Civil Appeal No.30 of 1985 in the Court of Additional District Judge, Sindhudurg at Sawantwadi. In the said appeal, the appellant nos.2 and 3 herein were impleaded as the respondent nos.4 and 5.
9. Being aggrieved by the order and judgment dated 21st December, 1984 passed by the learned Civil Judge, Junior Division, Sawantwadi, the appellant in Second Appeal No.598 of 1993 (original plaintiff), filed Civil Appeal No.33 of 1985.
10. By an order and judgment dated 16th August, 1993, the learned Additional District Judge, Sawantwadi dismissed Civil Appeal No.30 of 1985, which was filed by the appellant no.1 in Second Appeal No.599 of 1993. By an order and judgment dated 16th August, 1993, the learned Additional District Judge, Sawantwadi dismissed Civil Appeal No.33 of 1985.
11. The appellants in Second Appeal No.599 of 1993 has impugned the judgment and decree dated 16th August, 1993 passed by the Additional District Judge in Civil Appeal No.30 of 1985. The appellants in Second Appeal No.599 of 1993 has impugned the judgment and decree passed by the learned Additional District Judge on 16th August, 1993 dismissing the appe
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