Bombay High Court
Shantabai Gopinath Thakur (Deceased) … vs P.J.Mhatre(Deceased)L.R.S Janabai P. … on 9 June, 2025
2025:BHC-AS:22636
First appeal No. 391 of 1991 (f).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 391 OF 1991
1. Smt. Shantabai Gopinath Thakur [Matter ]
abated as per Court's order] ]
2. Annaji Rambhau Thakur ]
(since deceased, through LRs) ]
2a] Shalinibai Annaji Thakur ]
Widow of Annaji Thakur ]
Aged 72 years, Occu. : Housewife ]
2b] Sudhakar Annaji Thakur ]
Son of Annaji Rambhau Thakur ]
Aged 46 years, Occu. : Service ]
2c] Uttam Annaji Thakur ]
Son of Annaji Rambhau Thakur ]
Aged 43 years, Occu. : Service ]
2d] Rajesh Annaji Thakur ]
Son of Annaji Rambhau Thakur ]
Aged 40 years, Occu. : Service ]
2a] to 2d] residing at Gopinath Niwas, Khale ]
Galli, Erangal Village, Post Madha Via ]
Versova, Mumbai - 400 061 ]
2e] Maya Vijay Mhatre ]
Married daughter of Annaji Rambhau ]
Thakur ]
]
Aged 41 years, Occu : Housewife
]
R/at: Govind Mhatre House, ]
Oppo. Hiradevi Temple, Erangal Village, ]
Post Madh, Via Versova, Mumbai - 400 061 ]
2f] Seema Prashant Mhatre ]
Aged 39 Years, Occu : Housewife ]
r/at : Bhagat Chawl, Erangal Village, ]
]
Post Madh, Via Versova, Mumbai - 400064.
3. Motiram Rambhau Thakur ]
4. Harishchandra Rambhau Thakur ]
(since deceased, through LRs) ]
Sairaj 1 of 41
First appeal No. 391 of 1991 (f).doc
4a] Sanjay Harishchandra Thakur ]
Son of Harishchandra Rambhau Thakur ]
Aged 41 years, Occu. : Service ]
4b] Yuvraj Harishchandra Thakur ]
Son of Harishchandra Rambhau Thakur ]
Aged 38 years, Occu. : Service ]
4a] and 4b] r/at Gopinath Niwas, Khale Galli, ]
Erangal Village, Post Madh Via Versova, ]
Mumbai - 400 061. ]
4c] Priyanka Laxmikant Mhatre ]
Aged 46 years, Occu. : Service ]
Married daughter of ]
Harishchandra Rambhau Thakur ]
r/at: Bhagat Chawl, Erangal Village, ]
Post Madh, Via Versova, Mumbai 400 061. ]
5. Govind Rambhau Thakur - ]
All residing at Erangal Village, ]
District : Malad, Post : Andheri, Bombay - ]
400 064. ] ...Appellants.
Versus
Pandurang Janardhan Mhatre ]
Residing at Erangal Village, ]
District : Malad, Post : Andheri, ]
Bombay - 400 064. ]
(since deceased, through LRs) ]
1. Janabai Pandurang Mhatre ]
2. Parshuram Pandurang Mhatre ]
(since deceased, through LRs) ]
2a] Mahesh Parshuram Mhatre ]
Son of Parshuram Pandurang Mhatre ]
Aged 41 years, Occu. : Service. ]
2b] Kashinath Parshuram Mhatre ]
Son of Parshuram Pandurang Mhatre ]
Aged 34 years, Occu. : Service. ]
2c] Joshila Parshuram Mhatre ]
unmarried daughter of Parshuram ]
Pandurang Mhatre ]
Aged 37 years, Occu. : Housewife, ]
2a] to 2c] r/at. Mhatre House, Erangal ]
Village, Post Madh, Via Versova, Mumbai - ]
Sairaj 2 of 41
First appeal No. 391 of 1991 (f).doc
400 061. ]
2d] Kumud Sudhakar Mhatre ]
Married daughter of Parshuram ]
Pandurang Mhatre ]
Aged 45 years, Occu. : Housewife, ]
r/at. Namdev Mhatre House, Behind St. ]
Bonaveen Church, Erangal Village, Post ]
Madh, Via Versova, Mumbai - 400 061. ]
2e] Babita Jagdish Chaudhary/Meera Jagdish ]
Chaudhary ]
Married daughter of Parshuram Pandurang ]
Mhatre ]
Aged 41 years, Occu. : Housewife, ]
r/at. Choudhary House, Erangal Village, Post ]
Madh, Via Versova, Mumbai - 400 061. ]
3. Raman Pandurang Mhatre ]
4. Baliram Pandurang Mhatre ]
(since deceased, through LRs) ]
4a. Pramila Baliram Mhatre ]
4b. Hemant Baliram Mhatre ]
4c. Anita Baliram Mhatre ]
5. Chandrakant Pandurang Mhatre ]
6. Avantika Ganpat Mhatre ]
All residing at Erangal Village, District - ]
Malad, Post : Andheri, Bombay - 400 064. ]
7. Darshan Singh Bhatia ]
8. Gyan Kaur Bhatia ]
9. Vajinder Singh D. Bhatia ]
10. Pinky Vajinder Singh Bhatia ]
11. Master Jeet Singh Vajinder Singh Bhatia ]
Minor through his father and natural ]
guardian Vajinder Singh D. Bhatia ]
12. Master Aaditya Singh Vajinder Singh Bhatia ]
Minor through his father and natural ]
guardian Vajinder Singh D. Bhatia ]
13. Arvinder Singh D. Bhatia ]
All above are Indian inhabitants and ]
residing at 1901/02, Vastu Tower, ]
Sairaj 3 of 41
First appeal No. 391 of 1991 (f).doc
"A" Wing, Evershine Nagar, Malad [West], ]
Mumbai - 400 064. ]
[Amendment carried out as per Court's ]
order] ] ...Respondents.
WITH
INTERIM APPLICATION NO. 3133 OF 2022
IN
FIRST APPEAL NO. 391 OF 1991
1. Smt. Shantabai Gopinath Thakur (since ]
deceased) ]
2. Annaji Rambhau Thakur ]
(since deceased, through LRs) ]
2a] Shalinibai Annaji Thakur ]
aged 72 years, Occu. : Housewife ]
2b] Sudhakar Annaji Thakur ]
Aged 46 years, Occu. : Service ]
2c] Uttam Annaji Thakur ]
aged 43 years, Occu. : Service ]
2d] Rajesh Annaji Thakur ]
Aged 40 years, Occu. : Service ]
Nos. 2 [a] to 2 [d] residing at Gopinath ]
Niwas, Khale Galli, Erangal Village, Post ]
Madha Via Versova, Mumbai - 400 061 ]
2e] Maya Vijay Mhatre ]
aged 41 years, Occu : Housewife ]
r/at: Govind Mhatre House, ]
]
Oppo. Hiradevi Temple, Erangal Village,
]
Post Madh, Via Versova, Mumbai - 400 061.
2f] Seema Prashant Mhatre ]
aged 39 Years, Occu : Housewife ]
r/at : Bhagat Chawl, Erangal Village, ]
]
Post Madh, Via Versova, Mumbai - 400061.
3. Motiram Rambhau Thakur ]
4. Harishchandra Rambhau Thakur ]
(since deceased, through LRs) ]
4a] Sanjay Harishchandra Thakur ]
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First appeal No. 391 of 1991 (f).doc
aged 41 years, Occu. : Service ]
4b] Yuvraj Harishchandra Thakur ]
aged 38 years, Occu. : Service ]
4 [a] and 4 [b] r/at Gopinath Niwas, Erangal ]
Village, Post Madh Via Versova, Mumbai - ]
400 061. ]
4c] Priyanka Laxmikant Mhatre ]
Aged 46 years, Occu. : Service, ]
r/at Mhatre House, Oppo. Bhagat Chawl, ]
Erangal Village, Post Madh, Via Versova, ]
Mumbai 400 061. ]
5. Govind Rambhau Thakur - ]
All residing at Erangal Village, ]
District : Malad, Post : Andheri, Bombay - ]
400 064. ] ...Applicants/
Appellants.
Versus
Pandurang Janardhan Mhatre (deceased) ]
1. Janabai Pandurang Mhatre ]
2. Parshuram Pandurang Mhatre ]
(since deceased, through LRs) ]
2a] Mahesh Parshuram Mhatre ]
Aged 41 years, Occu. : Service. ]
2b] Kashinath Parshuram Mhatre ]
Aged 34 years, Occu. : Service. ]
2c] Joshila Parshuram Mhatre ]
Aged 37 years, Occu. : Housewife, ]
2 [a] to 2 [c] r/at. Mhatre House, Erangal ]
Village, Post Madh, Via Versova, Mumbai - ]
400 061. ]
2d] Kumud Sudhakar Mhatre ]
Aged 45 years, Occu. : Housewife, ]
r/at. Namdev Mhatre House, Behind St. ]
Bonaveen Church, Erangal Village, Post ]
Madh, Via Versova, Mumbai - 400 061. ]
2e] Babita Jagdish Chaudhary ]
Aged 41 years, Occu. : Housewife, ]
r/at. Choudhary House, Erangal Village, Post ]
Madh, Via Versova, Mumbai - 400 061. ]
Sairaj 5 of 41
First appeal No. 391 of 1991 (f).doc
3. Raman Pandurang Mhatre ]
4. Baliram Pandurang Mhatre ]
5. Chandrakant Pandurang Mhatre ]
6. Avantika Ganpati Mhatre ]
All residing at Erangal Village, District - ]
Malad, Post : Andheri, Bombay - 400 064. ]
7. Darshan Singh Bhatia ]
8. Gyan Kaur Bhatia ]
9. Vajinder Singh D. Bhatia ]
10. Pinky Vajinder Singh Bhatia ]
11. Master Jeet Singh Vajinder Singh Bhatia ]
Minor through his father and natural ]
guardian Vajinder Singh D. Bhatia ]
12. Master Aaditya Singh ]
Vajinder Singh Bhatia ]
Minor through his father and natural ]
guardian Vajinder Singh D. Bhatia ]
13. Arvinder Singh D. Bhatia ]
All above are Indian inhabitants and ]
residing at 1901/02, Vastu Tower, ]
"A" Wing, Evershine Nagar, Malad [West], ]
Mumbai - 400 064. ] ...Respondents.
------------
Mr. Chirag Mody, Mr. Munaf Virjee, Mr. Rushabh Parekh i/b AMR Law for
Applicant/Appellant.
Ms. Nidhi Revankar i/b A.G. Revankar and Co. for Defendant Nos. 2 to 6.
Mr. Aseem Naphade, Ms. Deepanjali Mishra i/b Mr. A. P. Singh for Respondent
No. 6.
Mr. Y. S. Jahagirdar, Senior Advocate a/w Mr. Pradeep J. Thorat i/b Mr. B. P.
Shukla for Respondent Nos. 7 to 13.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 21st March, 2025
Pronounced on : 9th June, 2025.
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First appeal No. 391 of 1991 (f).doc
Judgment :
1. The First Appeal is at the instance of the original defendant
challenging the impugned judgment dated 13 th February, 1991
declaring the plaintiff as absolute owner of the suit property, i.e. plot
of land bearing Survey No. 32, Hissa No. 34, admeasuring 22 gunthas at
village – Erangal, Taluka – Andheri and restraining the Defendants from
trespassing upon the suit property. For sake of convenience, parties
are referred to by their status before the Trial Court.
FACTUAL MATRIX:
2. S.C. Suit No. 261 of 1970 was initially filed seeking perpetual
injunction against the Defendant. On objection being raised to
maintainability of suit simpliciter for injunction, the plaint came to be
amended seeking declaration of ownership. The case of the Plaintiff
was that the Plaintiff is the owner of suit property being immovable
property bearing Survey No. 32 Hissa No. 34 consisting of 22 gunthas
admeasuring 2552 sq. yards at Village – Erangal and the original
Defendant is owner of adjoining property bearing Survey No. 32, Hissa
No. 35 admeasuring three gunthas at Village – Erangal, Taluka –
Andheri, Bombay – 58. The entire ancestral property including the suit
property was transferred in name of Plaintiff from his father’s
name,who expired on 3rd December, 1952, pursuant to application
dated 5th May, 1953 addressed to Mamlatdar of Borivali region. The
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First appeal No. 391 of 1991 (f).doc
suit property is uncultivable land on which grass grows and is being cut
by the Plaintiff since the beginning. Upon Application being made to
the Mamlatdar on 5th May, 1953, the Mamlatdar recorded the said facts
in the record of rights and on or about 27 th May, 1953, the entry was
certified. On or about 25th January, 1932, i.e. prior to the transfer of
property in the name of the plaintiff, the then Mamlatdar divided and
demarcated the said land bearing Survey No. 32, Hissa No. 34 from the
original Survey No. 32 and certified the same on or about 31 st March,
1932 and further on 25th July, 1932. There is common boundary
between the suit land and the original defendant’s land, who had
purchased property bearing Survey No. 32, Hissa No. 35 along with
other land in Court’s auction sale in the month of July, 1956 under a
decree against one Sohrabji Dinshawji Talathi, the then landlord of the
said property and has come into possession and occupation of Survey
No. 32, Hissa No. 35. In June, 1966, when the plaintiff wanted to erect
permanent fencing upon the original temporary fencing around the
suit property, the original defendant objected and created dispute, as a
result of which, the plaintiff applied to Collector for measurement of
suit land bearing Survey No. 32 and Hissa No. 34, showed the boundary
lines between the suit land and Original Defendant’s land and obtained
7/12 extract. By letter dated 11th June, 1966, the plaintiff applied for
fresh survey and measurement of plot and accordingly on 10 th June,
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First appeal No. 391 of 1991 (f).doc
1967, the officers visited the suit property and remeasured, surveyed
the land, demarcated the said suit land and original defendant’s land
bearing Survey No. 32 and Hissa No. 35 and confirmed from the past
record that the suit land was consisting of 22 gunthas and that the
original boundary demarcating the said two lands is correctly drawn. As
the original defendant continued to object the construction of
boundary and attempted to trespass on the suit land, complaint came
to be lodged in the Presidency Magistrate’s Court, Borivali on or about
13th June, 1967 for criminal trespass, which was disposed of being a
civil dispute. As the defendant started encroachment, legal notice
dated 28th March, 1968 was addressed to the defendant to cease and
desist to which the reply was sent on 3 rd April, 1968 contending that
there is mistake in record of rights and there is no encroachment on
the said suit land. Hence, the suit came to be filed seeking declaration
of ownership in respect of the subject property and for perpetual
injunction.
3. The suit came to be resisted contending that Defendant is the
owner of Survey No. 32, Hissa No. 34 and Hissa No 35 and is the owner
of 22 gunthas comprised in Survey No. 32, Hissa No. 34. Though the
plaintiff is shown in the record of rights as kabjedar of the said land,
the description is not correct as it exists on site. There is mistake in
Government records in respect of area of Survey No. 32, Hissa Nos. 34
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First appeal No. 391 of 1991 (f).doc
and 35. The suit property was never in possession or enjoyment of the
plaintiff and the defendant’s predecessor-in-title Sohrabji was
adversely, openly and to the knowledge of the plaintiff and his
ancestors was in possession of the suit land through the defendant, his
tenant at that time, and, thereafter, the suit land was purchased by the
Defendant in Court sale in a decree against Sohrabji Dinshawji Talathi
on 25th July, 1956 and since then, the defendant remained in
possession of the suit land. The original numbers of the suit land were
changed in the meantime. However, the defendants since 1950 is in
possession of the suit land openly, adversely and to the knowledge of
the plaintiff and or his predecessor in title and the defendants
therefore, has become the owner of the suit land and the plaintiff’s
title in the suit land, if any, is extinguished. It was contended that
entries in the record of rights were not made according to the actual
possession of the land. It was contended that defendant is in
possession of the suit land since the year 1950 and even after the
Court sale, he has been in possession of the suit land openly, adversely
and to the knowledge of the plaintiff and his ancestors.
4. During pendency of proceedings, the original Defendant expired
and his legal heirs were brought on record. An Additional Written
Statement came to be filed by the Defendants on 23 rd June, 1988 to
the amended Plaint, raising objection on limitation. It was contended
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First appeal No. 391 of 1991 (f).doc
that the defendants and the original defendant had been in actual,
physical possession of the suit property openly, continuously as owners
thereof to the knowledge of the plaintiff.
EVIDENCE:
5. The Plaintiff examined himself as P.W -1 and deposed that the
suit property was his ancestral property standing previously in the
name of his father and after the death of his father, his name is shown
in the revenue record in place of his father. He had further deposed
that till 1950, he was taking crops from the suit land and thereafter the
suit land was lying fallow. He has deposed that the land bearing Survey
No 32 Hissa No 35 admeasuring 3 gunthas, which was adjoining the suit
land, was owned by one Sohrabji and in the year 1956, the original
defendants purchased the land in Court auction sale, which was
pertaining to 3 gunthas of land as well as other lands of Sohrabji. He
has deposed that in the year 1968, dispute arose as the original
defendant removed the temporary boundary for which criminal
complaint was filed. He has further deposed that after removal of
temporary fencing by the original defendant, P.W.- 1 had applied for
measurement of the suit land and after measurement, he put
temporary fencing again, which was once again removed by the original
defendant. In support of his deposition, he produced the extract of
record of rights from the Office of Talathi, Erangal, Taluka – Borivali,
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First appeal No. 391 of 1991 (f).doc
7/12 extracts of the suit land is for a period between 1953-54 to 1984-
86, 7/12 extract of Survey No. 32, Hissa No. 35 for a period from 1953-
54 to 1981-82.
6. In cross-examination, he had admitted that besides Survey No.
32, Hissa No. 35, the original defendant owned many other pieces of
land in Village – Erangal.
7. The Plaintiff’s son was examined as PW-2, who corroborated the
deposition of PW-1. In cross-examination, he has admitted that he
cannot tell the survey numbers and hissa Numbers of the other lands
belonging to the father.
8. On behalf of the Defendant, one Motiram Rambhau Thakur,
Defendant no 1(c)-the nephew of the original deceased defendant, was
examined. He deposed that the suit land alongwith other land was
given in possession of the original Defendant since 1948 by one
Sohrabji for cultivation. The entire land of Sohrabji including the suit
land was put to public auction in Court sale and the Defendants
purchased the same. He has deposed that the sale certificate does not
contain the number of the suit land and area of the suit land is 22
gunthas. He had deposed that the suit land was lying fallow and grass
was growing on the land. He produced the sale certificate, the extract
from the record of Talathi pertaining to Account No. 49, Village –
Erangal recording the revenue assessment.
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First appeal No. 391 of 1991 (f).doc
9. In cross-examination, the suggestions given to D.W.-1 were
denied by him and no material has been elicited.
ISSUES AND FINDINGS OF TRIAL COURT:
10. The Trial Court framed the following and answered the following
issues:-
Issues Findings
(i) Is the suit barred by law of limitation? No.
(ii) Does the Plaintiff proves that he was in Yes
possession of the suit land?
(iii) Does the Defendants prove that they and their No
predecessor-in-title were in possession of the
suit lands prior to 12 years from the date of the
suit?
11. The Trial Court considered the extract of record of rights
produced by the Plaintiff and held that the same has presumptive
value as provided by Section 157 read with Section 148 of Maharashtra
Land Revenue Code, 1966. The Trial Court held that as per the changes
in revenue record vide Entry Nos. 121 and 473 pertaining to the suit
property, the suit property was standing in the name of the Plaintiff’s
father of having area of 22 gunthas and Entry No. 473 is verified by
concerned Officer on 27th May, 1953 where the name of the plaintiff
came to be substituted in place of his father on account of his father’s
death. The Trial Court noted that the 7/12 extract of suit property
shows one Janardhan Jaitu as previous occupant and subsequently the
name of Plaintiff. The Trial Court noted that the cultivation shows by
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First appeal No. 391 of 1991 (f).doc
self since 1953-1954 to 1970-1971. The Trial Court held that the
evidence of DW-1 that the suit land was used for taking rice crop by the
Defendants pre-decessor is contrary to the documentary evidence. The
Trial Court noted that there is no evidence to show title or possession
of Sohrabji of the suit land and the evidence on record is not sufficient
to rebut the presumption under Section 157 of MLRC. The Trial Court
held that the Court sale certificate does not reflect the suit property
but the adjoining property nor does the possession warrant refer to
the suit property.
12. The Trial Court noted that the Defendants did not take any steps
to correct the revenue record and the evidence shows possession of
the Plaintiff’s father and thereafter of the Plaintiff as owner thereof.
The Trial Court held that in the written statement there is admission of
the Defendant about objecting to the fencing of the property and
granted injunction.
INTERIM APPLICATION NO. 3133 OF 2022:
13. The Defendant has preferred an interim Application under Order
XLI, Rule 27 of Code of Civil Procedure, 1908 seeking permission to
produce additional evidence. The Application pleads that in the year
2013, when the matter had come up for final hearing before this Court,
there was change of Advocates and thereupon, it was learnt that the
relevant documents were not produced before the Trial Court as the
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First appeal No. 391 of 1991 (f).doc
said documents were not in possession or even to the knowledge of
original defendants. The documents are vital to determine the real
controversy between the parties and would assist in adjudication of
the suit property. It was pleaded that up to the year 1932, the
properties were divided as Phalni Number and from the year 1932, the
Survey Numbers were divided into Hissa Numbers. In the year 1956,
the Court Auction was held in which defendants purchased Survey No.
32, Phalni No. 35 now Survey No. 32, Hissa No. 34 admeasuring 22
gunthas and another property bearing Survey No. 32, Phalni No. 23
admeasuring 11 gunthas now Survey No. 32, Hissa No. 38. The
Application seeks to bring additional evidence in the form of Index-II of
year 1923 mentioning the name of original owners and Sohrabji Talathi
in which Survey No. 32 and Phalni Nos. 23 and 35 were mentioned, Sale
Deed dated 28th May, 1923 between the original owners and Sohrabji
Talathi, which includes suit property and bears Entry No 520 pertaining
to suit property, Gut Book of 1930-31, which shows survey number,
phalni number and hissa number of the suit property against the name
of Sohrabji, Index-II of the year 1956, which mentions the Court auction
and name of original Defendant in respect of Survey No. 32 and Phalni
Nos. 23-35, Enquiry Register by City Survey Office prepared between
1962-1965 showing the name of original Defendant in respect of suit
property.
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First appeal No. 391 of 1991 (f).doc
14. The application is resisted by by Respondent Nos. 7 to 13
subsequent purchasers and Respondent No 6. In Affidavit in rejoinder,
it is contended that the Defendants were agriculturists and cultivating
several parcels of lands with family members in the vicinity of the suit
property. They were not educated and didn’t try to obtain public
documents and there is inadvertent and bona fide mistake committed.
It is only after the perusal of impugned judgment that they started
looking for documents, which would demonstrate truth and after
facing several hardships, the documents Exhibits 1 to 6 of the
captioned Interim Application were made available.
SUBMISSIONS :
15. Mr. Mody, learned counsel appearing for Appellant would submit
that though the suit was filed for declaration of title, there is no issue
of title framed by the Trial Court. Taking this Court through the
findings of the Trial Court, he submits that finding of ownership is
based on revenue entry, which is unsustainable. He submits that it is
settled position in law that the entry in record of rights cannot create
or extinguish title and has presumptive value of possession.
16. He submits that upto the year 1932, the property was divided on
the basis of Phalni Number and subsequently, Hissa Number was given
and as the documents demonstrating the said position were not
available or not even known to the defendant’s predecessor-in-title,
Sairaj 16 of 41
First appeal No. 391 of 1991 (f).doc
the same could not be produced before the Trial Court and therefore,
the Interim Application for production of additional evidence should
be allowed to adjudicate the real controversy in issue.
17. He submits that Trial Court had held that the Defendants have
failed to show that the property belonged to Sohrabji. He submits that
the suit property had original Phalni Number 35 and upon conversion
to survey number, the same was given Hissa No 34. He submits that
the Sale Certificate, evidencing purchase by the Defendant in the year
1956 proves Defendant’s ownership. He submits that suit property
was in possession of Sohrabji in the year 1948, and thereafter, in
execution of decree against Sohrabji, there was Court sale of his
properties in the year 1956, in which Defendant’s pre-decessor
purchased the suit property.
18. He has taken this Court through the Additional Evidence sought
to be produced to demonstrate that suit property was Phalni No. 35
and thereafter, the same was converted to Hissa No. 34 and therefore,
the property which was acquired in auction sale was the suit property.
He submits that the Trial Court’s finding is erroneous that the
Defendant has not been able to show that the property acquired in
Court sale was owned by Sohrabji when the additional evidence in the
form of Gut book and Sale Deeds would show that suit property was
originally owned by Sohrabji. He submits that the revenue record refers
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First appeal No. 391 of 1991 (f).doc
to Aakarphod Patrak, 7/12 extract of Defendant’s property of 3
gunthas, i.e. Survey No. 32, Hissa No. 35. He submits that it is a specific
case of the defendant that there is erroneous entry, which has not
been considered. He submits that the plaintiff has taken advantage of
erroneous entry and claimed ownership of the suit property. He
submits that in the court auction, the properties are referred to by
their Phalni Numbers and the Trial Court has misconstrued the Phalni
Numbers as Hissa Numbers. He would further point out that the Sale
Certificate also refers to the Phalni Number. He would submit that the
provisions of Section 157 of Maharashtra Land Revenue Code, 1966
[for short, “MLRC”] only raises presumption and cannot be said to
create any title and the finding of Trial Court is based entirely on the
revenue entries. He submits that despite injunction granted by this
Court, Respondent No. 6 who was the original owner had sold the
property to Respondent Nos. 7 to 13 and transfer being pendente lite is
unlawful transfer. In support, he relies upon the following decisions :-
Devasahayam (Dead) by LRs vs. P. Savithramma1
Baldev Singh vs. Manohar Singh2
Samartha Development Corporation vs. Samartha
Development Corporation31 (2005) 7 SCC 653.
2 (2006) 6 SCC 498.
3 2019 SCC OnLine Bom 4721.
Sairaj 18 of 41
First appeal No. 391 of 1991 (f).docKamlakar Haribhau Naik vs. The State of Maharashtra4
Thomson Press (India) Limited vs. Nanak Builders and
Investors Private Limited5Union of India vs. Ibrahim Uddin6
Union of India vs. K. V. Lakshman7
Sanjay Kumar Singh vs. State of Jharkhand8
North Eastern Railway Administration, Gorakhpur vs.
Bhagwan Das9Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun
Kumar Bhardwaj (Dead) through Legal Representatives 10Municipal Corporation, Aurangabad vs. State of
Maharashtra11Keshrimal Jivji Shah vs. Bank of Maharashtra12
Jehal Tanti vs. Nageshwar Singh (dead) through LRs13
Mohammed Afsar Mohammed Isa vs. State of Maharashtra14
Bholaram Gangabai vs. Nanded Sachkhand Huzursaheb
Achpalnagar, Gurudwara Board15
19. Per contra, Mr. Jahagirdar, learned Senior Advocate appearing
for Respondent Nos. 7 to 13 submits that provisions of Section 157 of
4 Writ Petition No. 8460 of 2023, dtd.25th February, 2025.
5 (2013) 5 SCC 397.
6 (2012) 8 SCC 148.
7 (2016) 13 SCC 124.
8 (2022) 7 SCC 247.
9 (2008) 8 SCC 511.
10 (2021) 18 SCC 104.
11 (2015) 16 SCC 689.
12 2004 SCC OnLine Bom 368.
13 (2013) 14 SCC 689.
14 Second Appeal No. 64 of 2018, dtd. 22nd November, 2021.
15 2013 SCC OnLine Bom 1083.
Sairaj 19 of 41
First appeal No. 391 of 1991 (f).doc
MLRC raises presumption about correctness of entries in revenue
records unless the contrary is shown. He points out to 1932 entries
which had been duly certified and would submit that as the
presumption had not been rebutted, the Trial Court had rightly
decreed the suit. He would further submit that Application under
Order XLI, Rule 27 cannot be allowed as in the year 2017, the legal
heirs were already on record and no due diligence had been shown. He
submits that the annexures to the Application would show that
documents were available in the year 2015 whereas factually incorrect
statement is made that the same were available in the year 2022. He
would submit that suit property was ancestral property and the entries
are duly certified entries. He submits that documents produced by
Defendant do not correlate to the suit property. He would further
submit that as far as pendente lite sale is concerned, the decree passed
will bind the subsequent purchasers. He would further submit that
there is no document produced to show ownership of Defendant and
all documents pertain to Survey No. 32, Hissa No. 35, which is adjoining
property whereas the plaintiff has shown the Mutation Entry Nos. 121
and 473 whereby the name of plaintiff is entered in revenue records
and 7/12 extracts of the suit property for the year 1953, 1980-81 and
1984-85 and there is no evidence produced by the Defendants to show
their possession and occupation. He submits that mutation entry in
Sairaj 20 of 41
First appeal No. 391 of 1991 (f).doc
revenue records in favor of plaintiff was not challenged by the
Defendant at any point of time.
20. He would further submit that Defendant has pleaded adverse
possession and thereby, admitted the ownership of the plaintiff. He
submits that the Defendant in the Written Statement has taken
inconsistent pleas which are mutually destructive pleas. He submits
that case pleaded by the Defendant before this Court that the suit
property bearing Survey No. 32, Hissa No. 34 and the adjoining
property bearing Survey No. 32, Hissa No. 35 are one and the same,
was not pleaded or argued before the Trial Court and neither the
submission of title issue not being framed by the Trial Court. In any
event, the issue regarding title has been discussed and evidence to
that effect has been led by the parties and therefore, merely non-
framing of issue regarding title does not result in prejudice to either
party. In support, he relies upon the following decisions :-
Arundhati Mishra (SMT) vs. Sri Ram Charitra Pandey16
K. R. Mohan Reddy vs. Net Work INC. Represented through
MD17Dr. Om-Prakash Shankarrao Sajjanwar vs. Bhaurao
Chintaman Armarkar18Thomson Press (India) Limited vs. Nanak Builders and
Investors Private Limited (supra)16 (1994) 2 SCC 29.
17 (2007) 14 SCC 257.
18 Writ Petition No. 1351 of 2020, dtd. 23rd March, 2022.
Sairaj 21 of 41
First appeal No. 391 of 1991 (f).doc
21. Mr. Naphade, learned counsel appearing for Respondent No. 6
would submit that specific issue as regards the adverse possession was
framed in view of specific plea in the Written Statement. He has taken
this Court through the Written Statement and would submit that case
of the Defendant was that Sohrabji was in adverse possession through
the present Defendant. He submits that in such event, it was necessary
for Sohrabji to be called as witness or be impleaded as a party which
has not been done. He submits that as the specific issue of adverse
possession was framed, which was not renounced, in First Appeal, for
the first time, the said plea cannot be given up. In support, he relies
upon the following decisions:-
Narasamma vs. A. Krishnappa (Dead) through Legal
Representatives19Karnataka Board of Wakf vs. Government of India20
M Siddiq (Ram Janmabhumi Temple – 5J) vs. Suresh Dhas21
22. In Rejoinder, Mr. Mody would submit that decisions relied upon
by Respondent No. 6 is distinguishable on facts as in that case, it was
the plaintiff who had claimed title by adverse possession. He submits
that Appellant is the Defendant and was thus, entitled to take
inconsistent pleas and it was not necessary to examine Sohrabji as
witness.
19 (2020) 15 SCC 218.
20 (2004) 10 SCC 779.
21 (2020) 1 SCC 1.
Sairaj 22 of 41
First appeal No. 391 of 1991 (f).doc
POINT FOR DETERMINATION:
23. The sole issue arising for consideration is:
(i) Whether the presumption of correctness of entries
in record of right and register of mutations under
Section 157 of MLRC, not having being rebutted,
would entitle the Plaintiff to declaration of ownership
of the suit property?
REASONS AND ANALYSIS :
24. Order XLI, Rule 27 of CPC permits production of additional
evidence at appellate stage in event (a) the the trial court has refused
to admit evidence which ought to have been admitted (aa) where
notwithstanding exercise of due diligence, the additional evidence was
not within the knowledge or after exercise of due diligence could not
be produced by the party before the Trial Court and (b) where the
Appellate Court requires any document to be produced or any
evidence to examine to enable it to pronounce the judgment or for any
substantial cause.
25. The Application is premised on clause (aa) of Order XVI Rule 27
that despite exercise of due diligence, such evidence was not within
the Defendants knowledge and could not be produced before the Trial
Court.
Sairaj 23 of 41
First appeal No. 391 of 1991 (f).doc
26. The application pleads that upto the year 1932 the properties
were divided as “Phalni No” and thereafter the survey numbers were
sub divided as “Hissa No”. It is pleaded that in the auction sale of the
year 1956, the Defendant purchased Survey No 32 Phalni No 35 now
Survey No 32 Hissa No 34 admeasuring 22 gunthas and by the present
application seeks to produce documents to establish that Sohrabji
Talathi was owner of the Survey No 32 Phalni No 35 and that Survey No
32 Hissa No 34 was initially Survey No 32 Phalni No 35.
27. The Defendant opposes the Plaintiff’s title on two grounds
firstly that Sohrabji Talathi through the Defendant was in adverse
possession of the suit property and secondly that in the Court sale of
Sohrabji Talathi’s properties, the suit property was purchased by the
Defendant. It is pleaded though the plaintiff is shown in the record of
rights as kabjedars, the said description is not correct and there is
mistake in Government records in respect of area of Survey No. 32,
Hissa Nos. 34 and 35. The specific case put up by the Defendant is that
the error in the government records is in respect of area of Hissa No 34
and 35 and not the Hissa numbers. There is no pleading as regards
Phalni numbers of the suit land and the subsequent change to Hissa
Number or that the error in the description of the suit property is by
reason of reference to Phalni number. It is not the pleaded case of the
Defendant that the suit property is described in the Court Sale
Sairaj 24 of 41
First appeal No. 391 of 1991 (f).docCertificate by Phalni number which corresponds to the Hissa Number
of the suit property. As far as Sohrabji Talathi’s ownership of suit
property is concerned, there is not even a whisper that the suit
property was purchased by Sohrabji by registered document. The case
pleaded is of adverse possession by Sohrabji.
28. The Application seeks to adduce evidence in support of a
completely new case, which is not the purport of Order XLI Rule 27 of
CPC. Irrespective of whether the eventualities set out in Order XLI Rule
27 (aa) of CPC stand satisfied or not, no evidence to prove a case not
pleaded before the Trial Court can be permitted to be adduced. Sans
any pleadings, the evidence, even if permitted to be adduced, would
amount to inadmissible evidence. In light of the factual scenario
prevailing, the decisions relied upon by Mr. Mody enunciating the law
on Order XLI Rule 27 of CPC does not assist the Defendants case. The
Interim Application thus stands rejected.
29. Now coming to the core issue for determination. The Plaintiff
has relied upon the extract of record of rights to demonstrate
possession and ownership of the suit property, which is agricultural
land. Admittedly there is no title document produced by the Plaintiff.
To establish ownership and possession, PW-1 has produced the
following relevant extracts of the revenue records:
Sairaj 25 of 41
First appeal No. 391 of 1991 (f).doc
i) Entry No. 121 certified on 31st March, 1932. This entry in the
“Hakkache Patra” (Record of Rights Village form No. 6),states
that the mutation in name of Janardhan Jaitu has taken place
in respect of Survey No 32 Hissa No 34 due to “Akarphod”.
ii) Entry No. 473 certified on 27th May, 1953 in the Record of
Rights (village form No. 6). This entry is to the effect that on
3rd December, 1952, Janardhan Jaitu Mhatre expired and the
name of his son Pandurang Janardhan Mhatre,who is the legal
heir, is mutated in revenue record.
(iii) 7/12 extract of Survey No 32 Hissa No 34 reflecting the
name of Janaradhan Jaitu and thereafter the Plaintiff as per
Entry No 121 and 473.
(iv) 7/12 extract of Survey No 32 Hissa No 35 reflecting the
name of the Defendant.
30. Section 148 of Maharashtra Lane Revenue Code, 1966 (“MLRC”)
provides for maintenance of record of rights in every village and
prescribes the inclusion of the following particulars:
“148. Record of Rights.– A record of rights shall be
maintained in every village and such record shall include the
following particulars :–
(a) the names of all persons (other than tenants) who are
holders, occupants, owners or mortgagees of the land or
assignees of the rent or revenue thereof ;
(b) the names of all persons who are holding as Government
lessees or tenants including tenants within the meaning of
relevant tenancy law;
(c) the nature and extent of the respective interests of such
person and the conditions or liabilities, if any, attaching
thereto;
(d) the rent or revenue, if any, payable by or to any of such
persons;
(e) such other particulars as the State Government may
prescribe by rules made in this behalf, either generally or for
purposes of any area specified therein.”
31. A statutory presumption of correctness of entries in the record
of rights and register of mutation unless rebutted or substituted
lawfully is raised by Section 157 of MLRC which reads as under :-
Sairaj 26 of 41
First appeal No. 391 of 1991 (f).doc
“157. Presumption of correctness of entries in record of
rights and register of mutations.– An entry in the record of
rights, and a certified entry in the register of mutations shall
be presumed to be true until the contrary is proved or a new
entry is lawfully substituted therefor.”
32. PW-1 has produced the relevant extract of Village Form No 6,
which is Register of Mutations maintained under Section 148 of MLRC.
Section 150 of MLRC provides that the Talathi shall make an entry in
the Register of Mutation on every acquisition of right and where any
objection is raised in the entry in register of mutation, the objection is
entered in the register of disputed cases, which disputes are thereafter
adjudicated and the entries are transferred from the register of
mutation to the record of rights. In accordance with the prescribed
procedure, Entry No 121 mutating the Plaintiff’s fathers name in
respect of the suit property has been certified and transferred to the
record of rights. Entry No 121 records that the mutation has taken
place in accordance with Aakarphod patrak on 29th January, 1932 and
certified on 31st March, 1932. In view of Section 157 of MLRC raising
presumption of truthfulness of the entries, a reading of the Entry No
121 discloses that in the year 1932, Survey No 32 was sub divided and
Hissa No 34 was mutated in name of the Plaintiff’s father. The
narration in the Entry is that the basis for mutation is “Aakarphod
patrak”. It is necessary to understand the exact purport of “Aakarphod
patrak”. Hissa Form No 4 or Aakarphod patrak has its genesis in survey
Sairaj 27 of 41
First appeal No. 391 of 1991 (f).doc
and its preparation is a step in sub-division of land revenue payable by
each sharer when multiple sharers in respect of an agricultural land
decide to have their shares separated by issuance of separate 7/12
extracts in respect of each share. The preparation of Aakarphod
Patrak- Hissa Form No 4 is to give effect to sub-division of land in the
revenue records. Aakarphod is used to record and reflect the sub
division of land revenue and includes information such as Survey
Number, Hissa number, area, name of occupant or owner etc. The
exact purport of Hissa Form No 4 was considered minutely by the Co-
ordinate Bench in the case of Govindrao Shankarrao Reddy vs.
Rukminibai w/o. Vithal Reddy22. The Co-ordinate Bench traced the
entire history of survey of lands in context of considering whether
Hissa Form No 4 can be considered as document of title. The Co-
ordinate Bench discussed the particulars contained in Hissa Form No 4
in paragraph 11-12 as under:
“11-12. Hissa Form No. IV i.e. Exh. 5 has genesis to survey. This
Gunakar Book/Hissa Form No. 4 makes reference of the name
of the village, Tahsil of village and District of said Tahsil. There
are about 13 columns in this Hissa Form No. 4. Nos. 1 and 2
pertains to description of agricultural land in Survey No.,
column No. 3 is regarding it’s area, column No. 4 is regarding
Hissa No., column No. 5 refers the area of the Hissa, Column
No. 6 refers to area of all such Hissas, Column No. 10 is
important wherein area of the Hissa is referred, column No. 11
is more important because the name of the occupant is to be
written or mentioned in this column No. 11, column No. 12 of
this Hissa Form No. 4 is also important, not only from the view
point of Survey and Settlement Manual, but from the
principles of natural justice. This column No. 12 makes22 2008 SCC OnLine Bom 846.
Sairaj 28 of 41
First appeal No. 391 of 1991 (f).docreference that if the occupant is present at the time of
measurement, his signature or thumb impression to be taken,
recorded. In the absence of such occupant the Subdivision or
Hissa if has been created, and explained by any person, his
name should be recorded. Last column No. 13 is remarks
column.”
33. The decision holds that Hissa Form No 4 cannot be equated with
a document creating title in favour of a person whose name is
mentioned in Column No 11 of Hissa Form No 4 as occupant in
paragraph 20 to 22 as under:
“20. Thus, terms “occupant”, “survey number”, “restricted or
new tenure”, “old tenure” have their genesis in the Survey and
Settlement Manual and various enactments referred to in the
foregoing paragraphs of this judgment. The preparation and
maintenance of record of rights, has been evolved in due
course of time. The presumption attached to said record of
rights is similarly worded in all the relevant sections of the
earlier enactments. By and large, it can be said that the
Bombay Survey and Settlement Manual and various
enactments, which are referred to hereinabove, were brought
in force for the fiscal purpose by the Government holding the
field of governance. All along these enactments were brought
in force for the purpose of imposition and recovery of the land
revenue by the then Government. While imposition and
recovery of the land revenue, the then Government felt the
necessity of preparation of record of rights regarding,
agricultural land. Recording the names of the occupant,
recording the names of the cultivators, tenants etc. was all for
the prime object of imposition and recovery of the land
revenue by the Government. In this view of the matter,
presumption has been conferred upon the mutation entries,
entry taken in the record of rights by these enactments. Such
presumption always is rebuttable presumption. Apart from
these enactments, presumption under section 114 of the
Indian Evidence Act, 1872 regarding entries in the record of
rights is also available; in favour of such entries.
21. In the case on hand, learned counsel for the Appellant has
placed reliance on two documents i.e. Exhibit-5 Hissa Form No.
4, and Tonch Map Exhibit-85. Extensive survey of Survey and
Settlement Manual, various enactments pertaining to
agricultural lands have been considered by me. In my view,
Hissa Form No. 4 (origination is from Gunakar Book) cannot be
said to be a document creating or conferring the title over theSairaj 29 of 41
First appeal No. 391 of 1991 (f).docperson whose name is mentioned as occupant in this Hissa
Form No. 4. This Hissa Form No. 4 also cannot be equated with
a document creating title in favour of the person whose name
is mentioned in the column No. 11 of Hissa Form No. 4. In the
case on hand, Govind Shankar is the name mentioned i.e. of
the plaintiff. In other words, this Hissa Form No. 4, in the case
on hand, cannot be said to be a piece of evidence or document
creating or conferring title over the plaintiff regarding Land
Survey No. 23 (1), admeasuring 00 Hectare 32 Ares. It is
clarified that Pot Hissa No. 1 or sub-division No. 1 of Land
Survey No. 23, admeasuring 00 Hectare 32 Ares, cannot be
said to be owned by the plaintiff Govind because of this
document Hissa Form No. 4 Exhibit-5.
22. The communication Exhibit-X dated 24th June, 1940
addressed by the Settlement Commissioner and Director of
Land Record Pune to Mr. M.J. Desai, Settlement Commissioner
and Director of Land Records, Pune indicates that caution to
be exercised by the officers concerned of land record
department as well as revenue department. In my considered
view, after preparation of Hissa Form No. 4 and Tonch map
Exhibit-85, the revenue officers have to prepare Hissa Form
No. 12 Exhibit-X which consists of about twenty columns. After
preparation of this Hissa Form No. 12, said Hissa Form No. 12
has to be effected into a record of rights by the officers of the
revenue department in accordance with the provisions of law.
Since this communication Exh. X is addressed by Settlement
Commissioner and Deputy Director of Land Record, Pune, to
Mr. M.J. Desai, Director of Land Record, Pune on 24th June,
1940. Specific reference is made to section 135(d)(6) of the
then Land Revenue Code i.e. 1879. Thus, the procedure had to
be gone into before effecting into the record of rights, the
effect of Hissa Form No. 12. In other words, it is a combination
of act and actions of the survey and revenue department
officials which culminates in finalisation of Hissa Form No. 12
and its actual effect in to the record of rights i.e. 7/12 extract,
showing the name of the holder, details of the survey
number/Pot Hissa Number/area of the survey number/pot
hissa number, etc. The learned counsel for the Appellant fairly
concedes that Exhibit-5 i.e. Hissa Form No. 4 and Tonch map
Exh. 85 have not culminated in preparation of Hissa Form No.
12 and consequently have not been given effect to, in the 7/12
extract i.e. the record of rights. Thus, fact remains that,
despite the measurements of Pot Hissa Survey No. 23 (1),
showing area 00 Hectare 32 Ares, and showing plaintiff Govind
as a holder thereof, such entries have not been effected into
the record of rights. Even if they were effected into the record
of rights, as observed in the foregoing paragraphs, it has got
presumptive value which is rebuttable.”
Sairaj 30 of 41
First appeal No. 391 of 1991 (f).doc
34. The mutation in the revenue records to give effect to the sub
division pursuant to Aakarphod Patrak has presumptive value which is
rebuttable as held in the case of Kamlakar Haribhau Naik vs. The
State of Maharashtra (supra) following the decision of Govindrao
Shankarrao Reddy vs. Rukminibai w/o. Vithal Reddy (supra).
35. Understanding the import of “Akarphod Patrak”, as the same is
not a document of title, the mutation of Plaintiff’s fathers name in
respect of the suit property upon sub-division of the suit property
would raise a statutory presumption that the Survey No 32 land was
sub-divided in the year 1932 and the Plaintiff’s father was occupant of
the sub divided Hissa No 34 as per Column No 11 of Hissa Form No 4.
Similarly the effect is given in the revenue records by creation of
separate 7/12 extract which records the Plaintiff’s father’s name as
“Kabjedar” or occupant/holder of the suit property. The subsequent
mutation in favour of the Plaintiff would establish that the suit
property was in occupation and possession of the Plaintiff’s father
since the year 1932 and thereafter by the Plaintiff.
36. It is well settled that the mutation entry by itself created for
fiscal purpose does not create or extinguish title, but there is
presumption in law as to the correctness of the entry made in the
record of rights or register of mutations, which presumption has the
effect of shifting the burden of proof upon the Defendants. The
Sairaj 31 of 41
First appeal No. 391 of 1991 (f).docmutation entry does not have presumptive value of title but only of
possession.
37. In the case of Municipal Corporation Aurangabad vs State of
Maharashtra (supra), the Hon’ble Apex Court was considering the
dispute arising out of mutation in the revenue record and in that
context re-iterated the well settled position in law that mutation does
not confer any right and title in favour of any one or other nor
cancellation of mutation extinguishes the right and title of the rightful
owner. The Hon’ble Apex Court noted that normally, the mutation is
recorded on the basis of possession of land for purpose of collecting
revenue. In Bholaram Gangabai and Another vs Nanded Sachkhand
Huzursaheb Achpalnagar, Gurudwara Board (supra), the Co-ordinate
Bench of this Court noted Section 157 of MLRC and the various
decisions of the Hon’ble Apex Court and held in paragraph 19 and 20 as
under:
“19. Perusal of the above provision shows that there is a
presumption about the truth of entries in record of rights and
the register of mutations only and nothing more. With
reference to such type of provisions, the apex court rejected
the arguments that such revenue entries furnish the
presumptive evidence of title. The following observation in
paragraph 6 of the judgment in the case of Smt.
Chandrakantaben J. Modi and Narendra Jayantilal Modi v.
Vadilal Bapalal Modi; [(1989) 2 SCC 630 : AIR 1989 SC 1269];
would be apt to quote.
“6. ….In these circumstances the presumption which
can be raised in favour of Chandrakanta from this
entry is with respect to her possession and possession
only.”
20. Thus, the apex Court held that the presumption which
could be raised could only be with respect to possession and
possession only.”
Sairaj 32 of 41
First appeal No. 391 of 1991 (f).doc
38. There is, however, another aspect of the matter. It is not
disputed by Mr. Mody that the mutation entries have presumptive
value of possession. Though the presumption is rebuttable, there is no
evidence pointed out by Mr. Mody which will displace the statutory
presumption of possession. The extract of the revenue records and
particularly, the 7/12 extract showing cultivation of suit land by self
from the year 1953 onwards establishes possession. Though the
mutation entries are standing since the year 1932, no steps were taken
by the Defendant to correct the mutation entries.
39. What is the effect of the presumption of possession of the suit
land not being rebutted on the declaration of title sought by the
Plaintiff. The possession of Plaintiff standing unrebutted raises
presumption of ownership of possessor under Section 110 of Indian
Evidence Act, 1872 which reads thus:
“110. Burden of proof as to ownership.–When the question
is whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is
not the owner is on the person who affirms that he is not the
owner.”
40. Under Section 110 of Evidence Act, when the question is
whether any person is owner of anything of which he is shown to be in
possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner. Whether the burden has
been discharged by the Defendant is required to be seen. The case of
Sairaj 33 of 41
First appeal No. 391 of 1991 (f).doc
the Defendant as pleaded in paragraph 7 of the written statement is
that his pre-decessor in title Mr. Sohrabji Talathi was adversely openly
and to the knowledge of the Plaintiff and his ancestors in possession
of the suit land through the defendant, his tenant at that time and
thereafter the suit land was purchased by the Defendant in court sale
in decree against Sohrabji Talathi on 25 th July, 1956. DW-1 has
deposed that in the year 1948, the suit land alongwith other lands
were given in possession to the original Defendant by Mr. Sohrabji for
cultivation and the entire land of Sohrabji including suit land was put to
public auction in court sale and the original defendant purchased the
same. The Defendant does not plead in the written statement or
depose in the evidence that Sohrabji Talathi was the owner of the suit
property but raises plea of adverse possession. Accepting for the
moment, the claim of adverse possession of Sohrabji Talathi, the suit
land which was not owned by Sohrabji Talathi could not be put in Court
auction for decree against Sohrabji Talathi in absence of title
document. The Defendants have not examined Sohrabji Talathi during
the trial and there is no evidence produced to show Sohrabji Talathi’s
title or possession or the Defendants possession.
41. It is an admitted position that in the 7/12 extracts the name of
Plaintiff is mutated in respect of Survey No. 32, Hissa No. 34 and
Defendants name is mutated in respect of Survey No. 32, Hissa No. 35,
Sairaj 34 of 41
First appeal No. 391 of 1991 (f).doc
which is the adjoining land. The Court Sale Certificate based on which
the Defendant claims to have purchased the suit property refers to
Survey No. 32, Hissa No. 35 for area of 22 gunthas. The Trial Court has
noted that the description of the properties mentioned in the
possession warrant tallies with the description in the sale certificate.
The documents, Exhibit 1-Colly produced by the Defendants to support
its case of purchase in auction sale, does not mention the suit property
i.e. Survey No 32 Hissa No 34. It appears that taking advantage of the
area mentioned in the Court sale of 22 gunthas, the Defendant is
attempting to put up a case of ownership of suit property. The sale
Certificate is of the year 1956 and no steps were taken by the
Defendant to rectify the description of the purchased area in the sale
Certificate. The Defendant’s case is that as the Court Sale Certificate
describes the area of Survey No 32 Hissa No 35 as 22 gunthas, the sale
certificate must be construed as one for sale of suit property. There is
no reason why the Sale Certificate must be accepted to contain an
incorrect description of Hissa Number and not an incorrect description
of the area, particularly when Survey No 32 Hissa No 35 has been
mutated in name of the Petitioner. In event the Defendant had
purchased the suit property in auction sale, the same would have been
reflected in the record of rights, which is not so. The extract of account
tendered by the Defendant does not reflect the suit property.
Sairaj 35 of 41
First appeal No. 391 of 1991 (f).doc
Cumulatively appreciating the documentary evidence adduced by the
Defendants, the following position emerges:
(a) The Sale Certificate of the year 1956 shows at Entry No 520
property bearing Survey No 32 Hissa No 35 area admeasuring
22 gunthas.
(b) Possession Warrant shows the same entry with the same
description as contained in the Sale Certificate based on
conveyance deed of 23rd May, 2923. The possession warrant
describing the property based on the record of rights does not
show the suit property or even the adjoining property.
42. There is no reference to the suit property in the documentary
evidence adduced by the Defendant. There is no material to prove the
Defendant’s title to the suit property which would have discharged the
burden placed by Section 110 of Indian Evidence Act, 1872. The
evidence,on the contrary, establishes the purchase of the adjoining
property i.e. Survey No 32 Hissa No 35 by the Defendant in the auction
sale. The Defendant’s case that there is mistake in the Government
records in respect of area of Survey No. 32, Hissa Nos. 34 and 35 cannot
be accepted in the absence of corrective steps being taken by the
Defendant.
Sairaj 36 of 41
First appeal No. 391 of 1991 (f).doc
43. In Chief Conservator of Forests vs Collector23 , the Hon’ble Apex
Court held in paragraph 19 to 22 as under:
“19. Section 110 of the Evidence Act reads thus:
“110. Burden of proof as to ownership.–When the
question is whether any person is owner of
anything of which he is shown to be in
possession, the burden of proving that he is not
the owner is on the person who affirms that he is
not the owner.”
20. It embodies the principle that possession of a property
furnishes prima facie proof of ownership of the possessor and
casts burden of proof on the party who denies his ownership.
The presumption, which is rebuttable, is attracted when the
possession is prima facie lawful and when the contesting party
has no title.
21.This Court in Nair Service Society Ltd. v. K.C. Alexander [AIR
1968 SC 1165 : 1968 Ker LT 182] observed: (AIR p. 1173, para
15)
“That possession may prima facie raise a
presumption of title no one can deny but this
presumption can hardly arise when the facts are
known. When the facts disclose no title in either
party, possession alone decides.”
22. The pattedars proved their possession of the lands in
question from 1312 Fasli (1902 AD) as pattedars. There is long
and peaceful enjoyment of the lands in question but no proof
of conferment of patta on the late Raja and the facts relating
to acquisition of title are not known. The appellant State could
not prove its title to the lands. On these facts, the
presumption under Section 110 of the Evidence Act applies
and the appellants have to prove that the pattedars are not
the owners. The appellants placed no evidence on record to
rebut the presumption. Consequently, the pattedars’ title to
the land in question has to be upheld.”
In State of A.P. Vs Star Bone Mill and Fertilizer Company 24, the
Hon’ble Apex Court held in paragraph 21 as under:
“21. The principle enshrined in Section 110 of the Evidence Act
23 (2003) 3 SCC 472.
24 (2013) 9 SCC 319.
Sairaj 37 of 41
First appeal No. 391 of 1991 (f).doc
is based on public policy with the object of preventing persons
from committing breach of peace by taking law into their own
hands, however good their title over the land in question may
be. It is for this purpose, that the provisions of Section 6 of the
Specific Relief Act, 1963, Section 145 of the Code of Criminal
Procedure, 1973, and Sections 154 and 158 of the Penal Code,
1860, were enacted. All the aforesaid provisions have the same
object. The said presumption is read under Section 114 of the
Evidence Act, and applies only in a case where there is either
no proof, or very little proof of ownership on either side. The
maxim “possession follows title” is applicable in cases where
proof of actual possession cannot reasonably be expected, for
instance, in the case of wastelands, or where nothing is known
about possession one way or another. Presumption of title as a
result of possession, can arise only where facts disclose that no
title vests in any party. Possession of the plaintiff is not prima
facie wrongful, and title of the plaintiff is not proved. It
certainly does not mean that because a man has title over
some land, he is necessarily in possession of it. It in fact means,
that if at any time a man with title was in possession of the said
property, the law allows the presumption that such possession
was in continuation of the title vested in him. A person must
establish that he has continued possession of the suit
property, while the other side claiming title, must make out a
case of trespass/encroachment, etc. Where the apparent title
is with the plaintiffs, it is incumbent upon the defendant, that
in order to displace this claim of apparent title and to establish
beneficial title in himself, he must establish by way of
satisfactory evidence, circumstances that favour his version.
Even, a revenue record is not a document of title. It merely
raises a presumption in regard to possession. Presumption of
possession and/or continuity thereof, both forward and
backward, can also be raised under Section 110 of the Evidence
Act.”
44. The statutory presumption under Section 157 of MLRC of the
truthfulness of the entries has not been rebutted by the Defendant
and it cannot be accepted that there is any error in the government
records. The evidence-on-record is not sufficient to rebut the
presumption raised under Section 157 of the Maharashtra Land
Revenue Code, 1966 or discharge the burden under Section 110 of
Indian Evidence Act, 1872 and the consequence would be upholding of
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First appeal No. 391 of 1991 (f).doc
Plaintiff’s title. The Trial Court has rightly considered the entries and
held that the documentary evidence adduced by the Defendants have
no rebuttal value.
45. Another aspect which militates against the ownership of the
Defendant is the plea of adverse possession, raised in the written
statement. The claim of adverse possession proceeds on footing of
ownership of the other party. The Hon’ble Apex Court in Arundhati
Mishra (SMT) vs. Sri Ram Charitra Pandey (supra) has held that the
pleas based on title and adverse possession are mutually inconsistent
and the latter does not begin to operate till the former is renounced. It
is true that inconsistent pleas which are not mutually destructive can
be taken by party to a lis. In the present case, the framing of issue of
adverse possession would indicate that the Defendant persisted with
its claim for title by adverse possession thus admitting the Plaintiff’s
ownership.
46. As far as the submission that the Trial Court had not framed the
issue of title, there is no ground in the Appeal Memo to that effect and
from the impugned judgment, it does not appear to have been argued
before the Trial Court. Even if the issue was not framed, as the
declaration of ownership was sought, the parties were aware of the
case they had to meet. There is no prejudice demonstrated by reason
of non framing of the issue of title. The parties have led evidence
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First appeal No. 391 of 1991 (f).doc
accordingly. The Trial Court has given finding that the plaintiff was in
possession of the property as owners and non-framing of specific issue
of title, when the parties were aware of the issue is not enough to
vitiate the findings.
47. As the impugned judgment is upheld, it is not necessary for this
Court to consider whether the sale of the suit property in favour of the
Respondent Nos 7 to 13 despite order of injunction is unlawful or void
ab initio. In any event, the proceedings in the present case arise out of
declaration of Plaintiff’s title to the suit property and no issue of the
Respondent’s right, title or interest in the suit property arises for
consideration. There are no proceedings initiated by the Appellant
against the breach of injunction. In absence of any proceedings
instituted by the Appellant and as the Appeal is being dismissed, there
is no requirement of considering the effect of pendente lite transfer in
breach of injunction order.
48. In light of the discussion above, the First Appeal stands
dismissed.
49. In view of dismissal of First Appeal, nothing survives for
consideration in pending Interim/Civil Applications, if any, not decided
by the present judgment, and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
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First appeal No. 391 of 1991 (f).doc
50. At this stage, request is made for continuation of ad-interim
relief which has been operating since 29th April, 1991 read with the
order of 17th January, 2025. Ad-interim relief is continued for a further
period of eight weeks from today.
[Sharmila U. Deshmukh, J.]
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