KISAN VITHOBA AAKHADE Vs. SURESH TUKARAM NERKAR

JUDGEMENT

(1.) The concurrent findings on facts as entered into by the trial court and the first appellate court, to reject the suit filed, was overturned by the High Court in Second Appeal holding, the reading of the document establishing title; of the plaintiff and the findings on possession; of the defendants, perverse.

(2.) Shri Satyajit A. Desai, learned counsel for the appellants argued that the sale deed exhibited at Ext. 81, was produced by the plaintiff. Though it showed the extent of 150 square metres, actually as per the revenue records produced by the defendants, as on the date of sale deed the vendor of the plaintiff had possession only of 109.70 square metres. The balance portion was an open space which was in the possession of the deceased 1st appellant, the 8th defendant in the suit. The revenue records were corrected after the written statement was filed by the defendants. Despite assertion of possession by the plaintiff, in the Commission taken out by the plaintiff it was found with the 9th defendant. Even then the plaintiff did not seek for recovery of possession. It is argued that there was no question of law arising in the Second Appeal and the High Court erred in reversing the concurrent finding on facts of the trial court and the first appellate court.

(3.) Shri Gagan Sanghi, learned counsel for the respondent No. 1/ plaintiff read to us the reliefs sought in the plaint, which was a declaration of ownership and possession with consequential injunction. The plaintiff was in possession of the entire property wherein admittedly there was a building. The disputed land was lying contiguous to the plot in which the building was constructed. The defendants were dumping waste in the property and keeping manure thereon, which was objected to. On objections raised there was a threat levelled and hence the suit was filed. The mere finding of manure and waste on the property cannot lead to a finding of possession. The appellate court wrongly found that the title deed showed only a lower extent which was found to be a mistake of fact amounting to perversity by the High Court.