SHANTABAI GOPINATH THAKUR Vs. PANDURANG JANARDHAN MHATRE

JUDGEMENT

(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.

(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 3/12/1952, pursuant to application dtd. 5/5/1953 addressed to Mamlatdar of Borivali region. The 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 5/5/1953, 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 25/1/1932, 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 25/7/1932. 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 dtd. 11/6/1966, the plaintiff applied for fresh survey and measurement of plot and accordingly on 10 th June, 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 13/6/1967 for criminal trespass, which was disposed of being a civil dispute. As the defendant started encroachment, legal notice dtd. 28/3/1968 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 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 25/7/1956 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.