BHAGUJI BAYAJI POKALE Vs. KANTILAL BABAN GUNJAWATE

JUDGEMENT

(1.) THE brief facts leading to this second appeal are as under: in the year 1951, that is to say on 26th September, 1951, the appellants herein who were the original defendant Nos. 1 and 2, had purchased from the respondents, two acres of land from Survey No. 32/1 and had also purchased a share of 2 annas and 8 pie in a Rupee with regard to a well situated at Survey No. 32/3 for a total sum of Rs. 700/ -. This sale deed was duly registered. There is absolutely no dispute between the parties with regard to this sale deed. The respondents herein also do not dispute the appellants title with regard to the two acres of land which is found in Survey No. 32/1. The only dispute is with regard to 2 annas and 8 pie share in the entire well which is situated at Survey No. 32/2. It appears that the respondents, without any notice whatsoever to the appellants, got the mutation entry changed with regard to the appellants right, title etc. , regarding the aforesaid well. Only in the year 1983, the appellants came to know of the aforesaid unauthorised change in mutation entry and took objection to the same. It is the contention of the respondents that since the appellants did not actually use the well water and by virtue of change in the mutation entry, the respondents claim that they have by adverse possession became sharer with regard to the 2 annas 8 pie share in the said well water. The respondent Nos. 1 and 2 had filed a suit being Civil Suit No. 244 of 1984 before the Court of Civil Judge at Phaltan, District Satara, against the present appellants as well as respondent Nos. 3 and 4. Respondent Nos. 3 and 4 were the supporting plaintiffs in that said suit. The plaintiffs suit was for cancellation of mutation entry with regard to the appellants 2 annas and 8 pie share in the suit well as well as for a permanent injunction restraining the present appellants from user of the said well water with regard to the 2 annas and 8 pie share in the said well water. The main contention of the plaintiffs in that suit was that, as the mutation entries were changed with regard to the names of the appellants in that said Survey No. 32/3 with regard to the well and that as the appellants had not used the said well water at all. By way of adverse possession, plaintiffs had become the owners with regard to the 2 annas and 8 pie share in the said well. The trial Court, after considering all the issues, came to the conclusion that the plaintiffs had failed to prove that they had become the owners with regard to the 2 annas and 8 pie share in the said well water by virtue of adverse possession. The trial Court also came to the findings that the plaintiffs had failed to prove their possession of the said suit property in preference to the persons having lawful title. The trial Court also came to the conclusion that mere change in mutation entry, does not confer any title upon the respondent Nos. 1 and 2 herein.

(2.) AGAINST the said dismissal of the suit, the respondent Nos. 1 and 2 filed a Regular Civil Appeal No. 213 of 1987 before the 3rd Additional District Judge at Satara. The learned Appellate Court reversed the judgment of the trial Court, allowed the appeal and held that the mutation entry dated 26th September, 1983, was based on a sale-deed dated 26th September, 1951. The learned Appellate Court had also directed the present appellants that they should not either personally or through their agents, servants, relatives raise any obstruction to the enjoyment of the suit well by respondent Nos. 1 and 2 alongwith respondent Nos. 3 and 4.

(3.) THE lower Appellate Court had very strongly relied upon various mutation entries and changes therein, which were caused by respondent Nos. 1 and 2 herein, to substantiate the contention of respondent Nos. 1 and 2 that as their names have been incorporated instead of the appellants and that due to the fact that the appellants had never used the well water, the respondents had become the owners by virtue of adverse possession with regard to the aforesaid 2 annas and 8 pie share in the well water. The lower Appellate Court had also taken into account that the appellants had not objected to any of the change of the mutation entry from 1951 till 1983, and as such, the contention of respondent Nos. 1 and 2 was accepted.