JAGANNATH SOBHARAM BHATT Vs. SHRI KESHAV RAMJI SHINE

JUDGEMENT

(1.) The above Letters Patent Appeal is filed by the Appellant (original Defendant) challenging the Judgment and Order dated 13/11/1995 passed by the learned Single Judge of this Court dismissing the First Appeal No.717 of 1977 and thereby confirming the Judgment and Decree passed by the learned Judge, City Civil Court, Bombay in Suit No.1428 of 1967. The present Respondent is the original Plaintiff.

(2.) The case of the Plaintiff was that, since 1952 he was in continuous, uninterrupted and peaceful possession and occupation of the land bearing Survey No.27, Hissa No.12 admeasuring about 14 gunthas situated at Village Kirol, Ghatkopar, in Greater Bombay. The present Appellant - Defendant claimed to be the owner of the plot of land bearing Survey No.27, Hissa No.10 which was adjoining to the land bearing Survey No.27, Hissa No.12. It was further the case of the Plaintiff that one Dhanjibhai Cama was shown as the owner of the land bearing Survey No.27, Hissa No.12 in the Record of Rights. The Plaintiff claimed to be the owner of the piece of land i.e. Survey No.27, Hissa No.12 by virtue of the continuous, uninterrupted and adverse possession thereof. According to him, in or about January 1960, he demolished the hut in which he was residing with a view to build a chawl thereon. At that time, the Defendant - Appellant approached him and claimed that the plot of land in possession of the Plaintiff was a part of Survey No.27, Hissa No.10 of which the Defendant was the owner. The Defendant threatened to cause trouble. Based on such representation, which the Plaintiff believed to be true, that the Defendant was the owner of the part of the land on which the Plaintiff wanted to construct a chawl, and to avoid further trouble, the Plaintiff was persuaded to enter into a Lease Deed dated 23/01/1960 for lease of the plot of land admeasuring about 3 gunthas with the Defendant. It is further the case of the Plaintiff that the Defendant, in spite of repeated demands, did not provide the necessary documents. In the month of December 1964, an enquiry was started by the Enquiry Officer, City Survey, B.S.D. in respect of the land in possession of the Plaintiff and the said enquiry ended on 20/12/1965. That time the Plaintiff came to know that the plot of land in his possession was not forming part of Hissa No.10 but was part of Hissa No.12; with which the Defendant had no concern at all. In the said enquiry, the Plaintiff was recognized as the occupier of the said plot from the year 1952. The said entry was not objected to by the original owner of Survey No.27, Hissa No.12. In these circumstances, the Plaintiff claimed that the Lease Deed dated 23/01/1960 was void and was not binding on him and the Defendant had played fraud on him. The Plaintiff's case in the plaint further reveals that, since November 1966, there was an attempt to dispossess him forcibly and in January 1967 the Defendant even attempted to put a fencing around the plot. In these circumstances, the Plaintiff filed the Suit No.1428 of 1967 on 06/03/1967 for the declaration that the Defendant had no right, title or interest in the piece of land in possession of the Plaintiff and that the Lease Deed dated 23/01/1960 be set aside and cancelled. The Plaintiff had also prayed for permanent injunction against the Defendant from trespassing on the land in possession of the Plaintiff.

(3.) The present Appellant - Defendant contested the suit and filed his Written Statement. Besides denying the averments in the plaint, the Defendant mainly contended that there was no Hissa No.12 in Survey No.27 in existence at all until 1963-65 and the Plaintiff, through foul methods, brought it into existence in the record books. The Defendant further contended that the Plaintiff was in occupation of a portion of the Defendant's plot of land as the Defendant's tenant and did not have any independent right. It was further contended by the Defendant that he had terminated the tenancy and therefore the Plaintiff had no right to remain in possession. It was also the case of the Defendant that, since by the Lease Deed dated 23/01/1960 the Plaintiff had accepted the defendant as being the owner of the land, he was estopped from claiming otherwise. The Defendant claimed that he was not aware of any enquiry having been carried out in respect of the said piece of land. Based on these contentions, the Defendant prayed that the suit be dismissed.