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2020 Supreme(Bom) 1471
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Anil Satyavijay Kilor, J.
Haribhau Baliram Shende and Ors. - Appellants
Vs.
Pramod Wasudeorao Rakshamwar and Ors. - Respondent
Second Appeal No. 306 of 2016
Decided On : 29-09-2020
Advocate Appeared:
For the Appellant : S.L. Kotwal
For the Respondents: Anita Shinde and G.D. Vaidya
The concept of possessory title is based on the principle that possession constitutes a limited title to the property, good against all except the rightful owner.
Headnote:
Possessory Title - Property Dispute - Code of Civil Procedure - Section 96, Section 100 - AIR 1968 SCC 1165, AIR 1970 Bombay 405, (2004) 1 SCC 769 : (AIR 2004 SC 4609)
Fact of the Case:
The plaintiffs claimed ownership of certain properties based on adverse possession. The trial court and the district court dismissed the suit for declaration and permanent injunction, holding that the plaintiffs failed to prove their ownership by way of adverse possession.
Finding of the Court:
The court found that the plaintiffs' claim of possessory title was raised for the first time in the second appeal and was not pleaded, proved, or argued before the lower courts. The court held that the plaintiffs and defendants were co-owners of the suit property and that the plaintiffs failed to prove their ownership by way of adverse possession.
Issues: The main issue was whether the plaintiffs were entitled to relief of permanent injunction based on their possessory title and whether the concurrent findings of fact recorded by both the lower courts suffered from perversity.
Ratio Decidendi: The court held that the concept of possessory title is based on the principle that possession constitutes a limited title to the property, good against all except the rightful owner. It further held that the plaintiffs' claim of possessory title was not applicable as they admitted the co-ownership of the suit property with the defendants.
Final Decision: The appeal was dismissed, and no order as to costs was made.
JUDGMENT :
Anil Satyavijay Kilor, J.
1. The dismissal of appeal filed by the appellants/plaintiffs, vide judgment and decree dated 16th January, 2016 passed by the District Judge-VI, Nagpur, in Regular Civil Appeal No. 187 of 2013 arising out of the dismissal of suit for declaration and permanent injunction, vide judgment and decree dated 2nd May, 2013 passed by the Civil judge, Junior Division, Kuhi in Regular Civil Suit No. 21 of 2009, has been assailed in the present appeal at the instance of the plaintiffs.
2. Heard Shri S.L. Kotal, learned counsel for the appellant, Smt. Anita Shinde, learned counsel for the respondent No. 1 and Shri J.D. Vaidya, learned counsel for the respondent Nos. 2 to 7.
3. This Court while admitting the present appeal on 12th September, 2017 framed the following substantial questions of law
"Whether the plaintiff would be entitled for relief of permanent injunction on the basis of their possessory title".
4. The facts leading to the present appeal, are that the defendant Nos. 1 and 3 are sons and the defendant Nos. 4 to 7 are the daughters of the defendant No. 2.
5. The suit properties i.e. Gut Nos. 82, 109, 512 and 27 were originally belonging to one Smt. Mainabai Chaitram, who died in the year 1962.
6. It is the case of the plaintiffs that during the life time of Mainabai, the suit properties were mutated in the name of Baliram Devaji Shende, Mahadeorao Laxmanrao Mugelwar, Wasudeo Gopal Rakshamwar and Laxman Gopal Nimbalkar and they were in possession of the suit properties. The plaintiffs further plead that Mahadeorao and Laxman left village Chipdi long ago and Wasudeo died in the year 1990.
7. It is the further case of the plaintiff that Baliram died in the year 1985 and after his demise on 22nd May, 1995 the names of plaintiff as legal heirs of Baliram were mutated in the revenue record after following the procedure namely issuance of notice to Mahadeorao, Wasudeo and Laxman and further by publishing proclamation, inviting objection.
8. Plaintiffs further plead that on failure to raise any objection by anybody, the Tehsildar deleted the names of Mahadeo, Wasudeo and Laxman from the revenue record. The said order was belatedly challenged after 14 years before the Sub -Divisional Officer who has set aside the order of Tehsildar. The said order of the Sub- Divisional Officer was confirmed by the Commissioner. The plaintiffs state that the defendants thereafter threatened the plaintiffs to interfere with the peaceful possession of the plaintiffs, hence, they filed the suit.
9. The defendant by filling their written statement resisted the suit and thereby denied the contentions of the plaintiffs in toto.
10. The plaintiffs examined plaintiff No. 1-Haribhau and one Pandurang as witnesses, whereas defendants examined defendant No. 1 Pramod and Madhukar in support of their case.
11. Learned trial Court after considering and analysing the oral as well as documentary evidence, held against the plaintiffs that they failed to prove their ownership by way of adverse possession and also failed to prove that the defendants have no right or title in the suit property.
12. Accordingly, the suit was dismissed vide judgment and decree dated 2nd May, 2013 passed in Regular Civil Suit No. 22 of 2009 which was assailed in Appeal under Section 96 of Code of Civil Procedure before the District Judge-VI in Regular Civil Appeal No. 187 of 2013. The said appeal also came to be dismissed by upholding the judgment of the trial Court, vide judgment and decree dated 16th January, 2016. The same is under challenge in the present appeal.
13. Shri Kotwal, learned counsel for the appellants submit that both the Courts below failed to consider maxims "possession contra omnes valet praeter eur cui ius sit possessionis". He submits that plaintiffs have proved their long standing possession over the suit property and therefore the burden lies on the defendants to prove that the plaintiffs were not owner. However, both the Courts below have held
