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2016 Supreme(Bom) 1420
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Bhujanga Abba Patil and Ors. – Appellants
VERSUS
Dnyanu Ramchandra Powar and Ors. – Respondents
SECOND APPEAL NO.209 OF 1994
Decided On : 26-10-2016
For the Appellants : Mr. Kiran Pawar i/by Mr. B.R. Patil.
For the Respondents: Mr. N.J. Patil.
Headnote:Civil Procedure Code, 1908 - Section 100-Second appeal.-Perverse findings of facts recorded by Courts below can be interfered with by High Court in second appeal.
Since the area of the plot agreed to be sold to the defendants by the erstwhile owner was clearly mentioned in the sale-deed which was duly admitted and confirmed by the erstwhile owner of the said land himself and also admitted and confirmed by the witnesses examined by the defendants, reference to the boundaries of the plot mentioned in the sale-deed as conclusive by the first Appellate Court is totally perverse and illegal.
Since specific area of the land was sold by the erstwhile owner to the defendants which was specifically mentioned in the sale- deed, the finding/observation of the first Appellate Court that the boundaries would prevail is ex facie perverse. The boundaries or the area mentioned in the sale-deed entered into between the defendants and the erstwhile owner of the said property would not prevail over the area mentioned in the sale- deed in view of the exact area of property sold having been clearly mentioned in the sale-deed.
Since the first Appellate Court had not dealt with and considered the oral and documentary evidence led by the parties in the right perspective and has on the other hand decided ex facie contrary to the documents and oral evidence and has rendered various findings which are ex facie perverse, such perverse findings can be interfered with by exercising powers under Section 100 of the Code of Civil Procedure, 1908. 2007 (6) Mh LJ (SC) 336 and (1983) 2 MLJ 340 (Mad)-Relied.
By this petition filed under Section 100 of the Code of Civil Procedure, 1908, the appellants now through legal heirs and representatives (original plaintiffs) have impugned the judgment and decree dated 29th July 1993 passed by the learned 4th Additional District Judge, Kolhapur allowing the Regular Civil Appeal No.277 of 1987 filed by the respondents (original defendants) and dismissing the cross-objection filed by the appellants. The first appellate Court has set aside the judgment and decree dated 16th October 1987 passed by the learned IInd Joint Civil Judge, Junior Division, Kolhapur in Regular Civil Suit No. 217 of 1979 filed by the original plaintiffs inter alia praying for injunction and for possession which was decreed by the learned trial Judge. The parties in this judgment are described as per their original status in the proceedings before the learned trial Judge. Some of the relevant facts for the purpose of deciding this second appeal are as under :-
2. It was the case of the plaintiffs that the suit field bearing Revision Survey No.24/1 admeasuring 4 acres 9 gunthas plus khara 11 ares assessed at Rs.19.81 now block no.61 situated at Village Aadur, Tal.Karveer, Dist.Kolhapur is owned and was in use and occupation of the plaintiffs. The said field was purchased by the plaintiffs from Mahadev Dattatray Chavan by registered sale deed on 27th May 1964 and since then the plaintiffs were in use and occupation of the said field.
3. It was the case of the plaintiffs that adjoining to the said field owned by the plaintiffs on the western side, there is field of the defendants bearing Revision Survey No.24/1 now block no.30. It was the case of the plaintiffs that the field of the plaintiffs and field of the defendants were from original Revision Survey No.24.
4. It is the case of the plaintiffs that the field of the defendants was admeasuring 6 acres 29 gunthas which was situated towards western side of the suit property. Before the year 1959, Hissa measurement took place at village Aadur and the suit property was numbered as revision Survey no.24 Hissa No.2. It was the case of the plaintiffs that under the wrong description of the property mentioned in the sale deed of the defendants, the defendants encroached upon the suit property which belonged to and was purchased by the plaintiffs.
5. It was the case of the plaintiffs that the defendants gave threat to the plaintiffs on 1st March 1979. The plaintiffs were constrained to file the suit for perpetual injunction against the defendants inter alia praying for injunction restraining the defendants from resorting to high handed action. The plaintiffs made an application for amendment in the plaint. It was averred that the plaintiffs' suit field block no.61 was inclusive of north-south bandh running between the field of the plaintiffs and the defendants. In the survey map, it has been shown that the defendants had encroached to the extent of 45 ares in the field of the plaintiffs. It was alleged in the plaint that the encroachment had been made by the defendants some time in the month of January 1976. The plaintiffs thus prayed for possession of the encroached portion from the defendants and also prayed for future mesne profits from the date of filing of the suit.
6. The defendant nos.1, 6 and 7 filed written statement resisting the said suit. The said written statement was adopted by the defendant nos.2 to 5 and 8 by filing purshis. The defendants had also filed an additional written statement.
7. The learned trial Judge framed seven issues. The plaintiffs examined Dattatraya Ganapati Parit, plaintiff no.3 and also examined Surveyor Mahadev Dhage. The defendants examined Tukaram Ramchandra Power, defendant no.6 and one Yeshwant Dattoba Chavan.
8. The learned trial Judge passed a judgment and decree dated 16th October 1987 and decreed the said suit filed by the plaintiffs and directed the defendants to hand over the possession of 45 ares to the plaintiffs as shown in the
