Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 2013 (BOM)

Matadin Surajmal Rajoria v. Ramdwar Mahavir Pande

2018-08-14

A.S.CHANDURKAR

body2018
JUDGMENT : ADMIT. Heard learned counsel for the parties at length. 2. The facts giving rise to this second appeal are that the appellant is the legal representative of the original plaintiff. It is the case of the plaintiff that on 28.12.1995, he had purchased land admeasuring 4 Acres from field Survey No.25 situated within the municipal limits of Amravati. The sale-deed was got executed through his registered Power of Attorney holder. On paying consideration of Rs.2,10,000/- the sale-deed was executed and the plaintiff was put in possession. A portion of the land encroached by defendant nos.1 and 2 was also taken in possession. On 23.11.2002, the plaintiff measured his land and it was noticed that the defendant no.1 had committed encroachment to the extent of 35 R from the Southern side while the defendant no.2 who was related to the defendant no.1 had encroached about 3 R land also from the Southern side. The plaintiff made request to the defendant nos.1 and 2 to remove the encroachment but no steps were taken in that regard. Thereafter, the plaintiff executed a registered document of Power of Attorney in favour of his daughter and she also made similar request to the defendant nos.1 and 2. After issuing a legal notice, suit was filed praying that the defendant nos.1 and 2 be directed to remove the encroachment to the extent of 38 R land. 3. In the written statement filed by defendant no.1 the case as pleaded by the plaintiff was denied. The defendant no.1 claimed title on the basis of sale-deed dated 17.04.1969 executed by one Vitthalrao Nanwatkar. The defendant no.2 was stated to have acquired title by virtue of sale-deed dated 02.11.1977 executed by one Shantabai Jaiswal. It was further stated that initially M/s Edulji Dotimal Ginning and Pressing Factory Limited filed a suit against defendant no.1 being Regular Civil Suit No.413 of 1979 for removal of encroachment. In that suit, it was alleged that the defendant no.1 had committed encroachment to the extent of 7798 square feet. That suit came to be dismissed and the defendants continued in possession. It was further pleaded that the construction alleged to have been erected by the defendant was in existence even when the earlier suit was filed. It was thus pleaded that the suit was liable to be dismissed. That suit came to be dismissed and the defendants continued in possession. It was further pleaded that the construction alleged to have been erected by the defendant was in existence even when the earlier suit was filed. It was thus pleaded that the suit was liable to be dismissed. The defendant no.3Municipal Corporation also filed its written statement stating therein that there was no cause of action against it. 4. The trial Court after considering the evidence on record held that the plaintiff had failed to prove the alleged encroachment by the defendant nos.1 and 2. It further held that the plaintiff had failed to prove that the construction erected on a portion of the suit property by the defendant no.1 was illegal. The sale-deeds dated 17.04.1969 and 21.11.1977 by which defendant nos.1 and 2 claimed title were held to be duly proved. The suit was accordingly dismissed. The original plaintiff then filed an appeal and the appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal. Being aggrieved, the legal heirs of the original plaintiff have filed this second appeal. 5. On 07.06.2016, this Court noticed that it was necessary to appoint a Surveyor to measure the property described in the sale-deeds at Exhibits 47 and 66. Accordingly, the trial Court was directed to appoint a Court Commissioner for measuring the said properties. In pursuance thereof, the trial Court appointed the Taluka Inspector of Land Records (T.I.L.R.) who measured the said properties. A finding was recorded by the trial Court on 28.09.2017 holding that as per the map at Exhibit 131, the defendants were not in possession of the land of the plaintiff that was alleged to be encroached. That finding was returned to this Court. However, as the findings were not certified by the appellate Court, this Court by order dated 22.02.2018 directed the appellate Court to certify those findings. Accordingly, the appellate Court by its order dated 10.04.2018 held that the plaintiff had proved that defendant nos.1 and 2 had committed encroachment to the extent of 38 R. The certified findings were accordingly sent to this Court. 6. Accordingly, the appellate Court by its order dated 10.04.2018 held that the plaintiff had proved that defendant nos.1 and 2 had committed encroachment to the extent of 38 R. The certified findings were accordingly sent to this Court. 6. On hearing the learned counsel for the parties, this Court framed the substantial question of law which has been reproduced hereinafter: “Whether in the face of order dated 10.04.2018 passed by the appellate Court in pursuance of direction of this Court for appointment of Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable ?” 7. Shri M.G. Bhangde, learned Senior Advocate for the appellants submitted that in the light of the findings as certified by the appellate Court, it was clear that the defendant nos.1 and 2 had committed encroachment to the extent of 38 R. Referring to the evidence of the T.I.L.R. at Exhibit 130 and the measurement sheet prepared by him, it was submitted that the defendants were also present when the said measurement took place and it was established that there was an encroachment to the extent of 38 R. The trial Court misdirected itself by taking into consideration the certified copies of the sale-deed at Exhibit 47 produced after the issue was referred to it especially when that question was not referred to the trial Court. It was submitted that the only purpose for directing appointment of the Court Commissioner was the absence of a proper measurement and such measurement having been duly carried out, the encroachment was established as per the map at Exhibit 131. It was then submitted that the sale-deed at Exhibit 47 was not under challenge and no plea was raised by the defendants with regard to the aspect as to whether the land sold included or excluded any encroached portion. In absence of any such plea it was not open for the defendant nos.1 and 2 to urge the same before the trial Court and the trial Court therefore, erred in considering that aspect of the matter. For said purpose, the learned Senior Advocate placed reliance on the decision in Union of India Versus Ibrahim Uddin & Another [ (2012) 8 SCC 148 ]. For said purpose, the learned Senior Advocate placed reliance on the decision in Union of India Versus Ibrahim Uddin & Another [ (2012) 8 SCC 148 ]. It was then submitted that the sale-deed executed in favour of the plaintiff was valid and it could not be discarded on the ground that the document of Power of Attorney in favour of the executant was not a registered document. No such stand was taken in the written statement for the purposes of challenging the validity of the plaintiffs sale-deed or the document of Power of Attorney. Placing reliance on the decision in Rajni Tandon Versus Dulal Ranjan Ghosh Dastidar & Another [ (2009) 14 SCC 782 ], it was submitted that as the sale-deed was executed and presented by the Power of Attorney holder which he was entitled to so execute and present for registration under provisions of Section 32 of the Registration Act, 1908, the sale-deed was rightly registered. In any event, a copy of the registered power of attorney was placed on record before the appellate Court. It was thus submitted that as the encroachment to the extent of 38 R had been duly proved, the plaintiff was entitled for necessary reliefs. 8. Shri R.L. Khapre, learned counsel for the respondent nos.1 and 2 on the other hand submitted that the plaintiff had failed to prove the contents of the sale-deed at Exhibit 47. According to him, PW1 who was examined on behalf of the plaintiff was not aware about the contents of the sale-deed. The requirements of Section 67 of the Evidence Act, 1872 were not satisfied. It was then submitted that the aspect of encroachment was required to be considered in the light of the sale-deeds at Exhibits 47 and 66. Certified copies of the sale-deed at Exhibit 47 were placed on the record of the trial Court and the trial Court found on 22.09.2017 that there was a difference in the certified copies of the said document issued by the same authority. The trial Court therefore to satisfy itself in this regard, directed issuance of witness summons to the Joint Sub-Registrar to remain present along with the relevant record. The trial Court therefore to satisfy itself in this regard, directed issuance of witness summons to the Joint Sub-Registrar to remain present along with the relevant record. The relevant record was produced by the said Joint Sub-Registrar and after due examination of that witness, it was noticed by the trial Court that there was a discrepancy in the description of the property with regard to the inclusion/exclusion of the encroachment by the defendant nos.1 and 2. The exercise undertaken by the trial Court in that regard was merely to satisfy itself and with a view to record a finding in terms of the order dated 07.06.2016. It was further submitted that the finding recorded by the appellate Court while certifying the findings recorded by the trial Court and especially in paragraph 23 of its order were perverse. The finding that encroachment was duly committed was liable to be set aside. He submitted that objections to those findings have been duly raised. It was thus submitted that in the light of the findings as recorded, no interference was called for in the appeal. In reply, it was reiterated by the learned Senior Advocate that the trial Court was bound by the order dated 07.06.2016 and it could not have permitted the certified copies of the sale-deed at Exhibit 47 to be brought on record. That exercise was without jurisdiction. Moreover, no objection was ever raised with regard to the contents of the sale-deed at Exhibit 47 and the corrections at Page 3 thereof were duly initialed. The area sold was 4 Acres and the boundaries of the property sold were also mentioned. It was therefore clear that what was sold was excluding the encroached portion. 9. I have heard learned counsel for the parties at length and with their assistance I have gone through the records of the case. It would be first necessary to refer to the events that have occurred after the order dated 07.06.2016 was passed by this Court directing measurement of the land by the Surveyor. The trial Court by its order dated 22.08.2016 appointed the T.I.L.R. Amravati as Court Commissioner for joint measurement of the properties described in the sale-deeds at Exhibits 47 and 66. Accordingly, one Shri Amol Giri who was working as Surveyor was appointed as the Court Commissioner. The trial Court by its order dated 22.08.2016 appointed the T.I.L.R. Amravati as Court Commissioner for joint measurement of the properties described in the sale-deeds at Exhibits 47 and 66. Accordingly, one Shri Amol Giri who was working as Surveyor was appointed as the Court Commissioner. He went to the spot on 28.11.2016 and prepared the measurement map at Exhibit 131 in presence of the persons named therein. This witness was thereafter examined as well as cross-examined on 05.07.2017. Thereafter on 21.07.2017, the defendant nos.1 and 2 filed an application at Exhibit 132 seeking permission to place on record documents as per list at Exhibit 133. A say was called from the plaintiff but as the same was not given the permission was granted. As per the list at Exhibit 133, certified copy of the sale-deed dated 28.12.1995 which was the document of title of the plaintiff was placed on record. Both the parties thereafter placed on record their written notes of arguments at Exhibits 134 and 136. At Exhibit 138, the plaintiff filed further reply to the written notes of arguments filed on behalf of the defendant nos.1 and 2. Thereafter on 20.09.2017, the plaintiff filed an application at Exhibit 139 in which it was stated that as the defendants had filed a photocopy of the certified copy of the plaintiff's sale-deed, the plaintiff wanted to clarify the words in the sale-deed relating to encroachment. The certified copy was obtained on 15.09.2017 and the trial Court permitted production of that document. That certified copy was filed along with list at Exhibit 140. On perusing the certified copy filed by the defendant nos.1 and 2 as well as the certified copy filed by the plaintiff, the trial Court noticed that there was some discrepancy in the certified copies. It therefore observed that there could not be different certified copies of the same document being issued by the same authority. Hence, to determine that aspect in relation to the difference in the two certified copies, the trial Court issued witness summons to the Joint Sub Registrar Class II, Amravati to produce the relevant record as well as Index-II of the sale-deed dated 28.12.1995. This was directed on the Court's own motion. Accordingly, one Shri Bhimrao Wakode who was working as a Junior Clerk in the Office of the Sub-Registrar remained present before the trial Court on 26.09.2017 along with relevant records. This was directed on the Court's own motion. Accordingly, one Shri Bhimrao Wakode who was working as a Junior Clerk in the Office of the Sub-Registrar remained present before the trial Court on 26.09.2017 along with relevant records. The Court questioned said witness after which he was cross-examined by the plaintiff through his counsel. It is thereafter that on 28.09.2017, the trial Court recorded its finding that the excess land as per the map at Exhibit 131 which was in the possession of the defendants was not the encroachment over the land of the plaintiff. 10. At the outset, the aspect with regard to witness summons being issued to the Joint Sub-Registrar for producing copies of the sale-deed dated 28.12.1995 at Exhibit 47 can be considered. This Court while directing appointment of a Surveyor for carrying out the measurement had directed such measurement being carried out on the basis of the sale-deeds at Exhibits 47 and 66. That measurement was accordingly carried out by the T.I.L.R. Thereafter, a certified copy of Exhibit 47 was placed on record by the defendant nos.1 and 2 along with the application at Exhibit 132. Thereafter, the plaintiff by application at Exhibit 139 also produced a certified copy of Exhibit 47 that was obtained on 15.09.2017. It is after perusing the certified copies filed by the parties that the trial Court noticed that there was some discrepancy on page three thereof in those certified copies. It is on that basis that on 22.09.2017, the trial Court issued witness summons to the Joint Sub-Registrar Class-II, Amravati to produce the relevant record. The record indicates that pursuant to that witness summons, Junior Clerk Shri Wakode from the office of Joint Sub-Registrar remained present with the necessary documents. The Court examined him at Exhibit 142 after which the plaintiff cross-examined that witness. The defendants could not cross-examine that witness as they were absent when called. 11. Aforesaid exercise undertaken by the trial Court of calling for the records of the registered sale-deed at Exhibit 47 appears to have been undertaken in exercise of the inherent powers under Section 151 of the Code. The plenitude of this power which inheres in the Court can be exercised by the Court to do justice between the parties as held in Manohar Lal Versus Seth Hiralal, AIR 1962 SC 527 . The plenitude of this power which inheres in the Court can be exercised by the Court to do justice between the parties as held in Manohar Lal Versus Seth Hiralal, AIR 1962 SC 527 . It is to be noted that the measurement was to be carried out on the basis of the sale-deeds at Exhibits 47 and 66. If the trial Court after perusing the certified copies of the sale-deed at Exhibit 47 filed by both the parties noticed that there was some discrepancy in respect of the same document of which certified copies were produced on record, it was but natural on the part of the Court to call for the original records and verify the same. This exercise undertaken by the trial Court was not objected to by the plaintiff. On the contrary, the plaintiff’s counsel cross-examined the witness from the office of the Joint Sub-Registrar and referred to Exhibit 47 filed by the plaintiff in his evidence. In other words, the parties willingly joined issue in that regard and put forth their respective contentions. After the original records were produced and certified copies of Exhibit 47 were placed on record, the witness was cross-examined and the Court was also addressed on that aspect. It therefore cannot be said that the plaintiff was taken by surprise by the trial Court when it called for the records of Exhibit 47. Having cross-examined that witness and having joined issue in that regard with the defendants, at this stage, it is not permissible for the plaintiff to contend otherwise and urge that the trial Court travelled beyond the order of remand. In this regard, reference may be made to the observations of the Hon’ble Supreme Court in His Holiness Digya Darshan Rajendra Ram Doss Versus Devendra Doss [ AIR 1973 SC 268 ] wherein it has been observed that “if the estoppel appears on the record, the party who is entitled to take the advantage of it, instead of relying on it goes to issue on the fact, he puts the matter at large and the Jury may disregard estoppel”. Thus, the plaintiff having cross-examined the concerned witness and his Counsel having addressed the Court in that regard without raising any grievance, the contention now raised on behalf of the plaintiff that aforesaid exercise was beyond the scope of the issue referred to the trial Court cannot be accepted. 12. Thus, the plaintiff having cross-examined the concerned witness and his Counsel having addressed the Court in that regard without raising any grievance, the contention now raised on behalf of the plaintiff that aforesaid exercise was beyond the scope of the issue referred to the trial Court cannot be accepted. 12. Though the learned Senior Advocate for the appellant sought to rely upon the observations in paragraphs 77 and 78 of the decision in Ibrahim Uddin & Another (supra) to urge that a decision of a case cannot be based on grounds outside the pleadings of the parties, the ratio of that decision is not attracted to the case in hand. The question was with regard to the exact contents of Exhibit 47 which is registered sale-deed and the exercise undertaken of verifying the original records with regard to that very sale-deed before adjudicating the aspect of encroachment cannot be faulted. It is not the grievance of the plaintiff that he was not granted any opportunity to rebut the records produced by the witness from the office of the Joint Sub-Registrar. 13. On a perusal of the copy of the sale-deed dated 28.12.1995 at Exhibit 47, the same indicates that land admeasuring 4 acres including the portion encroached by the defendant nos.1 and 2 was purchased. However on perusal of the certified copies at Exhibits 145, 146 and 148, it becomes clear that as per the original records maintained with the Office of the Joint Sub-Registrar, the plaintiff had purchased land admeasuring 4 Acres from field Survey No.25 excluding the encroachment committed by the defendant nos.1 and 2. This fact finds support from the entries in Index-II of the transaction which is placed at Exhibit 144 of the record. The Index II entry is taken immediately after registration of the concerned document as per Section 55 of the Registration Act, 1908. From the aforesaid documents, it is crystal clear that what was purchased by the plaintiff was area admeasuring 4 Acres from Survey No.25 excluding the encroached portion by the defendants. In this view of the matter, it is found that the order passed by the trial Court below Exhibit 1 on 28.09.2017 holding that the encroachment is not proved is after correctly appreciating the records with regard to Exhibit 47 and that finding does not deserve to be interfered with. In this view of the matter, it is found that the order passed by the trial Court below Exhibit 1 on 28.09.2017 holding that the encroachment is not proved is after correctly appreciating the records with regard to Exhibit 47 and that finding does not deserve to be interfered with. The appellate Court has, however, held that the trial Court was not justified in recording any finding with regard to the contents of Exhibit 47 after calling for the original records. It is on that basis that the appellate Court has certified the finding that the plaintiff had proved that the defendant nos.1 and 2 had made an encroachment to the extent of 38 R. in the light of the contents of the sale-deed dated 28.12.1995. In the light of the certified copies of the said sale-deed at Exhibits 145, 146 and 148 along with the extract from Index-II Register, the area purchased by the plaintiff is excluding the encroachment committed by the defendants. The trial Court has rightly observed that the plaintiff was in possession of land admeasuring 4 Acres since the year 1987 and that it was not the case of the plaintiff that the encroachment was committed by the defendants after the sale-deed was executed on 28.12.1995. This finding is also supported by the contents of that sale-deed. The finding recorded by the appellate Court that the trial Court acted beyond the direction of this Court is incorrect and hence is liable to be set aside. The finding recorded by the trial Court in the negative on 28.09.2017 is thus upheld. 14. In respect of the contention urged on behalf of the appellant that the document at Exhibit 47 was executed by the Power of Attorney holder and he was competent to do so, it is found that said contention deserves to be upheld. As held in Rajani Tandon (supra), the presentation of the document for registration having been made by the Power of Attorney holder, he was entitled under Section 32(a) of the Act of 1908 to do so. In any event, a copy of the registered Power of Attorney was placed on record before the appellate Court and therefore, it is clear that the sale-deed was executed by the Power of Attorney holder on the strength of said registered document. This aspect was also not seriously challenged by the learned counsel for the respondents. In any event, a copy of the registered Power of Attorney was placed on record before the appellate Court and therefore, it is clear that the sale-deed was executed by the Power of Attorney holder on the strength of said registered document. This aspect was also not seriously challenged by the learned counsel for the respondents. The observations to the contrary made in paragraph 14 of the judgment of the appellate Court are therefore liable to be set aside. 15. In light of aforesaid discussion, the substantial question of law as framed is answered by holding that the trial Court was justified in concluding that the plaintiff had failed to prove the encroachment. The appellate Court erred in holding otherwise. No interference is called for with the judgment of the appellate Court dismissing the appeal. The Second Appeal is thus dismissed with no order as to costs.