JUDGMENT :

Anil Satyavijay Kilor, J.

1. The appellants by the present appeal, have questioned the correctness and legality of concurrent findings given by both the Courts below as regards the ownership of the plaintiff/respondent of super structure constructed on the land leased out in the name of appellant No. 1 by the Nagpur Municipal Corporation.

2. The facts leading to the present appeal are as follows:

The suit property i.e. structure constructed on the ground floor of plot No. 47-B, Shiv Nagar, Ward No. 20, Nagpur having Municipal House No. 1547. The land on which the suit house was constructed by the plaintiff, the said land was allotted by the Nagpur Municipal Commissioner in the name of defendant No. 1. The defendant No. 1 and plaintiff are the real brothers. The defendant No. 1 had executed an agreement dated 18 December, 1989 which was duly registered on 3 February, 1990 in the office of Sub Registrar, Nagpur whereby the defendant No. 1 permitted the plaintiff to construct a house on a lease hold land of the defendant No. 1 and thereby awarded the ownership to the extend of the ground floor super structure.

3. In pursuance to the terms of the agreement, the plaintiff constructed the ground floor and started residing therein. The Nagpur Municipal Corporation has assessed the house of the plaintiff by giving house No. 1547. Whereas after the construction made by the defendant No. 1 of the first floor, the Nagpur Municipal Corporation assessed the same in the name of defendant No. 1 and has given distinct house No. 1547-A. The plaintiff and defendant No. 1st are paying the tax of the house separately since 1 April, 1990 of their respective floors.

4. The cause of action for filing the suit by the plaintiff for declaration and injunction was the public notice published in daily newspaper "Deshonatti" on 15 July, 2006, intimating the public at large that the defendant Nos. 2 and 3 have entered into an agreement to purchase the entire plot alongwith construction standing thereon and called for the claim if any, in respect of the property. The plaintiff after having got the knowledge of the public notice sent his objection to the defendant Nos. 2 and 3/appellant No. 2 and 3 on 20 July, 2006.

5. Since the plaintiff has been enjoying suit structure as an owner and since the said suit structure is having separate electric connection and tap connection, the suit has been filed for getting the declaration in respect of the title of the structure on the ground floor and also for injunction to restrain the defendants from causing any disturbance and dispossession.

6. The learned trial Court decreed the suit and thereby declared the plaintiff as the owner of the suit structure on the ground floor and further restrained perpetually the defendants or anybody on behalf of them from causing interference, dispossession to the plaintiff from the ground floor i.e. suit property, vide judgment and decree dated 18 March, 2008 in Special Civil Suit No. 863 of 2006.

7. The defendants went in appeal which came to be dismissed vide judgment and decree dated 22 April, 2009 passed in Regular Civil Appeal No. 264 of 2008, confirming the judgment and decree passed by the trial Court. The same is under challenged in the present appeal.

8. This Court while admitting the present appeal on 16 November, 2009 has framed the following substantial questions of law:

"(A) Whether under the agreement to construct new house ownership of two separate floor - ground floor and first floor, can be created without registering conveyance on a stamp paper of Rs. 10/- and what is the effect of such an agreement?

(B) Whether the decree as granted by the trial Court and confirmed by the first Appellate Court, is sustainable in law?"

9. Heard Shri Kshirsagar, learned counsel for the appellants/defendants and Shri Harkare, learned counsel for the respondent/plaintiff.

10. Shri Kshirsagar, learned counsel for the appellants/defendants submits that the plaintiff is in permissive posse