REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 19625 OF 2017
(ARISING OUT OF SLP (C) No. 27725/2014)
Smt.Bayanabai Kaware ...Appellant(s)
VERSUS
Rajendra S/o Baburao Dhote …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the defendant against
the final judgment and order dated 11/12.10.2012
passed by the High Court of Judicature at Bombay,
Nagpur Bench, Nagpur in Second Appeal
No.304/1997 whereby the Single Judge of the High
Court allowed the appeal filed by the respondent
herein and reversed the judgment/decree dated
1
26.08.1996 passed by the 3rd Additional District
Judge, Nagpur in Regular Civil Appeal No.152/1989
which arose out of judgment/decree dated
31.01.1989 passed by 3rd Joint Civil Judge, Junior
Division, Nagpur in Regular Civil Suit
No.1210/1985, which had dismissed the
respondent’s civil suit.
3) In order to appreciate the short controversy
involved in the appeal, few relevant facts need
mention hereinbelow.
4) The appellant is the defendant whereas the
respondent is the plaintiff in a civil suit out of which
this appeal arises.
5) The dispute relates to plot No.12 of field
No.13/3, P. H. 44 situated in Mouza Parsodi Tahsil,
District Nagpur admeasuring 1625 sq.ft.
(hereinafter referred to as the “suit land”).
6) The suit land originally belonged to one
Housing Co-Operative Society called – “Subhash
2
Nagar Gruha Nirman Sahakari Sanstha Limited,
Nagpur” (hereinafter referred to as "Society”). The
respondent purchased the suit land from the
Society vide registered sale deed dated 29.12.1981
and was, accordingly, placed in possession of the
suit land by the Society.
7) In March 1985, it was noticed by the
respondent that the appellant had encroached upon
the suit land owned by him and erected a kacha hut
on one portion of the suit land without any
authority. This led the respondent to serve legal
notice dated 22.04.1985 on the appellant asking her
to remove the hut, which was illegally erected by her
on the suit land. Since the appellant did not
remove the hut, the respondent filed a suit being
Civil Suit No.1210/85 in the Court of Civil Judge,
Junior Division, Nagpur against the appellant
claiming possession and mesne profits in relation to
the suit land.
3
8) The suit was founded essentially on the
allegation, inter alia, that the respondent is the
owner of the suit land having purchased the same
from the Society by registered sale deed dated
29.12.1981(Ex.P-31). It was alleged that the
respondent was placed in possession of the suit
land pursuant to the sale deed. It was alleged that
the appellant, in March 1985, un-authorisedly
entered into the suit land and erected one hut on
one portion of the suit land and hence, the suit is
filed by the respondent seeking possession of the
suit land and also claiming the mesne profits from
the appellant.
9) The appellant filed written statement and
denied the respondent's claim. According to her,
the suit land was allotted to one Dhondiba Lodhi by
the Society, who then constructed his house on the
land and on his death, his wife - Hirabai became its
owner. It was then averred that Hirabai entered
4
into an agreement with the appellant on 22.05.1972
to sell the suit land and pursuant to the agreement,
was placed in possession of the suit land. It was
averred that since then the appellant continued to
remain in possession of the suit land without any
interruption from anyone and has accordingly
acquired ownership of the suit land by virtue of she
being in adverse possession of the suit land. This,
in substance, was her defense.
10) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
31.01.1989, the Trial Court dismissed the
respondent's suit. It was held that, firstly, the
respondent failed to prove the sale deed (Ex.P-31)
inasmuch as the sale deed had some kind of
discrepancies and also no attesting witness was
examined; secondly, the appellant was in
possession of the suit land since 1972 and hence
perfected her title over it by adverse possession;
5
thirdly, the dispute, which is the subject-matter of
civil suit, pertained to the business of the Society
and hence covered by Section 91 of the
Maharashtra Cooperative Societies Act (in short "the
Act") and is, accordingly, barred under Section
163(1) of the Act.
11) The respondent, felt aggrieved by the judgment
of the Trial Court, filed First Appeal before the 3rd
Additional District Judge, Nagpur being Regular
Civil Appeal No.152 of 1989. The Appellate Court,
by judgment dated 26.08.1996, dismissed the
appeal and affirmed the judgment and decree of the
Trial Court. The Appellate Court reversed the two
findings of the Trial Court. One was in relation to
the bar contained in Section 91 of the Act and the
other relating to the plea of adverse possession. In
other words, the Appellate Court reversed the two
findings of the Trial Court and held that, firstly, the
bar contained in Section 91 of the Act does not hit
6
the civil suit and hence maintainable in Civil Court
and secondly, the appellant (defendant) failed to
prove her adverse possession over the suit land and
hence cannot be declared the owner of the suit land
on the strength of her alleged adverse possession
over it. However, since the Appellate Court
confirmed the finding of the Trial Court insofar as it
pertained to not properly proving the sale deed
dated 29.12.1981 (Ex.P-31), the suit was dismissed.
In other words, the Appellate Court also held that
the respondent (plaintiff) was not able to prove the
sale deed dated 29.12.1981 in accordance with law
and hence no decree could be passed in
respondent’s favour in relation to the suit land on
the strength of such unproved sale deed.
12) Felt aggrieved by the judgment of the Appellate
Court, the respondent (plaintiff) filed Second Appeal
under Section 100 of the Code of Civil Procedure
Code,1908 (hereinafter referred to as “the Code”) in
7
the High Court (Nagpur Bench). The High Court
framed the following question of law:
“Whether it is necessary for the plaintiff
appellant to examine his vendor and
attesting witnesses to prove his title to the
suit property in a suit for recovery of
possession against the encroacher when
there is a registered sale deed executed by
his vendor in his favour?”
13) The appellant (defendant), however, did not file
any cross objection under Order 41 Rule 22 of the
Code to challenge the adverse findings recorded by
the First Appellate Court and, therefore, those
findings attained finality.
14) By impugned judgment, the High Court
allowed the Second Appeal and while setting aside
of the judgments/decrees of the two courts below
decreed the appellant's suit. The High Court held
that the respondent has proved the sale deed as
required in law and, therefore, he was entitled to
claim decree for possession on the basis of the sale
deed (Ex.P-31) as an owner against the appellant.
8
Felt aggrieved, the defendant filed the present
appeal by way of special leave against the judgment
of the High Court before this Court.
15) Heard Mr. Anshuman Singh, learned counsel
for the appellant and Mr. Rahul Chitnis, learned
counsel for the respondent.
16) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dismiss the appeal as, in our
opinion, the High Court is right in its reasoning and
its conclusion.
17) As observed supra, the only question involved
in the appeal before the High Court was whether the
sale deed dated 29.12.1981 (Ex.P-31) in relation to
the suit land was duly proved by the respondent.
18) The Trial Court and the First Appellate Court
held that since the sale deed was not properly
proved, the respondent's suit was dismissed
whereas the High Court reversed the said finding
9
and held that the sale deed was duly proved as
required in law and accordingly passed the decree
for possession against the appellant in relation to
the suit land.
19) We agree with the reasoning of the High Court.
In our opinion also, the respondent was able to
prove the sale deed and was, therefore, rightly held
entitled to claim decree for possession of the suit
land on the strength of the sale deed dated
29.12.1981 (Ex.P-31) against the appellant.
20) It is for the reasons that, firstly, the execution
of the sale deed does not need any attesting witness
like the gift deed, which requires at least two
attesting witnesses at the time of its execution as
per Section 123 of the Transfer of Property Act,
1882; and Secondly, Section 68 of the Evidence Act,
1872, which deals with the examination of the
attesting witness to prove the execution of the
document, does not apply to sale deed, which is
1
governed by Section 54 of the Transfer of Property
Act.
21) It is not in dispute that the appellant
(defendant) in this case did not dispute the
respondent's vendor’s (Housing Society) title. On
the other hand, she, in clear terms, admitted their
title in her written statement. It is also not in
dispute that the respondent entered in witness box
and proved its execution and further did not raise
any objection when the sale deed was being
exhibited in evidence and indeed, rightly for want of
any legal basis.
22) In the light of these admitted facts, we are of
the view that the sale deed dated 29.12.1981 was
duly proved by the respondent and was, therefore,
rightly relied on by the High Court for passing a
decree of possession against the appellant. It was,
in our opinion, a clear case where the respondent
had a better title of the suit land as against the
1
appellant, who had no title to the suit land. All that
the appellant had was a plea of adverse possession
which was not held proved.
23) This being the only point involved in the case
and the same having been answered against the
appellant, we find no merit in the appeal. The
appeal thus fails and is accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 23, 2017
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 19625 OF 2017
(ARISING OUT OF SLP (C) No. 27725/2014)
Smt.Bayanabai Kaware ...Appellant(s)
VERSUS
Rajendra S/o Baburao Dhote …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the defendant against
the final judgment and order dated 11/12.10.2012
passed by the High Court of Judicature at Bombay,
Nagpur Bench, Nagpur in Second Appeal
No.304/1997 whereby the Single Judge of the High
Court allowed the appeal filed by the respondent
herein and reversed the judgment/decree dated
1
26.08.1996 passed by the 3rd Additional District
Judge, Nagpur in Regular Civil Appeal No.152/1989
which arose out of judgment/decree dated
31.01.1989 passed by 3rd Joint Civil Judge, Junior
Division, Nagpur in Regular Civil Suit
No.1210/1985, which had dismissed the
respondent’s civil suit.
3) In order to appreciate the short controversy
involved in the appeal, few relevant facts need
mention hereinbelow.
4) The appellant is the defendant whereas the
respondent is the plaintiff in a civil suit out of which
this appeal arises.
5) The dispute relates to plot No.12 of field
No.13/3, P. H. 44 situated in Mouza Parsodi Tahsil,
District Nagpur admeasuring 1625 sq.ft.
(hereinafter referred to as the “suit land”).
6) The suit land originally belonged to one
Housing Co-Operative Society called – “Subhash
2
Nagar Gruha Nirman Sahakari Sanstha Limited,
Nagpur” (hereinafter referred to as "Society”). The
respondent purchased the suit land from the
Society vide registered sale deed dated 29.12.1981
and was, accordingly, placed in possession of the
suit land by the Society.
7) In March 1985, it was noticed by the
respondent that the appellant had encroached upon
the suit land owned by him and erected a kacha hut
on one portion of the suit land without any
authority. This led the respondent to serve legal
notice dated 22.04.1985 on the appellant asking her
to remove the hut, which was illegally erected by her
on the suit land. Since the appellant did not
remove the hut, the respondent filed a suit being
Civil Suit No.1210/85 in the Court of Civil Judge,
Junior Division, Nagpur against the appellant
claiming possession and mesne profits in relation to
the suit land.
3
8) The suit was founded essentially on the
allegation, inter alia, that the respondent is the
owner of the suit land having purchased the same
from the Society by registered sale deed dated
29.12.1981(Ex.P-31). It was alleged that the
respondent was placed in possession of the suit
land pursuant to the sale deed. It was alleged that
the appellant, in March 1985, un-authorisedly
entered into the suit land and erected one hut on
one portion of the suit land and hence, the suit is
filed by the respondent seeking possession of the
suit land and also claiming the mesne profits from
the appellant.
9) The appellant filed written statement and
denied the respondent's claim. According to her,
the suit land was allotted to one Dhondiba Lodhi by
the Society, who then constructed his house on the
land and on his death, his wife - Hirabai became its
owner. It was then averred that Hirabai entered
4
into an agreement with the appellant on 22.05.1972
to sell the suit land and pursuant to the agreement,
was placed in possession of the suit land. It was
averred that since then the appellant continued to
remain in possession of the suit land without any
interruption from anyone and has accordingly
acquired ownership of the suit land by virtue of she
being in adverse possession of the suit land. This,
in substance, was her defense.
10) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
31.01.1989, the Trial Court dismissed the
respondent's suit. It was held that, firstly, the
respondent failed to prove the sale deed (Ex.P-31)
inasmuch as the sale deed had some kind of
discrepancies and also no attesting witness was
examined; secondly, the appellant was in
possession of the suit land since 1972 and hence
perfected her title over it by adverse possession;
5
thirdly, the dispute, which is the subject-matter of
civil suit, pertained to the business of the Society
and hence covered by Section 91 of the
Maharashtra Cooperative Societies Act (in short "the
Act") and is, accordingly, barred under Section
163(1) of the Act.
11) The respondent, felt aggrieved by the judgment
of the Trial Court, filed First Appeal before the 3rd
Additional District Judge, Nagpur being Regular
Civil Appeal No.152 of 1989. The Appellate Court,
by judgment dated 26.08.1996, dismissed the
appeal and affirmed the judgment and decree of the
Trial Court. The Appellate Court reversed the two
findings of the Trial Court. One was in relation to
the bar contained in Section 91 of the Act and the
other relating to the plea of adverse possession. In
other words, the Appellate Court reversed the two
findings of the Trial Court and held that, firstly, the
bar contained in Section 91 of the Act does not hit
6
the civil suit and hence maintainable in Civil Court
and secondly, the appellant (defendant) failed to
prove her adverse possession over the suit land and
hence cannot be declared the owner of the suit land
on the strength of her alleged adverse possession
over it. However, since the Appellate Court
confirmed the finding of the Trial Court insofar as it
pertained to not properly proving the sale deed
dated 29.12.1981 (Ex.P-31), the suit was dismissed.
In other words, the Appellate Court also held that
the respondent (plaintiff) was not able to prove the
sale deed dated 29.12.1981 in accordance with law
and hence no decree could be passed in
respondent’s favour in relation to the suit land on
the strength of such unproved sale deed.
12) Felt aggrieved by the judgment of the Appellate
Court, the respondent (plaintiff) filed Second Appeal
under Section 100 of the Code of Civil Procedure
Code,1908 (hereinafter referred to as “the Code”) in
7
the High Court (Nagpur Bench). The High Court
framed the following question of law:
“Whether it is necessary for the plaintiff
appellant to examine his vendor and
attesting witnesses to prove his title to the
suit property in a suit for recovery of
possession against the encroacher when
there is a registered sale deed executed by
his vendor in his favour?”
13) The appellant (defendant), however, did not file
any cross objection under Order 41 Rule 22 of the
Code to challenge the adverse findings recorded by
the First Appellate Court and, therefore, those
findings attained finality.
14) By impugned judgment, the High Court
allowed the Second Appeal and while setting aside
of the judgments/decrees of the two courts below
decreed the appellant's suit. The High Court held
that the respondent has proved the sale deed as
required in law and, therefore, he was entitled to
claim decree for possession on the basis of the sale
deed (Ex.P-31) as an owner against the appellant.
8
Felt aggrieved, the defendant filed the present
appeal by way of special leave against the judgment
of the High Court before this Court.
15) Heard Mr. Anshuman Singh, learned counsel
for the appellant and Mr. Rahul Chitnis, learned
counsel for the respondent.
16) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dismiss the appeal as, in our
opinion, the High Court is right in its reasoning and
its conclusion.
17) As observed supra, the only question involved
in the appeal before the High Court was whether the
sale deed dated 29.12.1981 (Ex.P-31) in relation to
the suit land was duly proved by the respondent.
18) The Trial Court and the First Appellate Court
held that since the sale deed was not properly
proved, the respondent's suit was dismissed
whereas the High Court reversed the said finding
9
and held that the sale deed was duly proved as
required in law and accordingly passed the decree
for possession against the appellant in relation to
the suit land.
19) We agree with the reasoning of the High Court.
In our opinion also, the respondent was able to
prove the sale deed and was, therefore, rightly held
entitled to claim decree for possession of the suit
land on the strength of the sale deed dated
29.12.1981 (Ex.P-31) against the appellant.
20) It is for the reasons that, firstly, the execution
of the sale deed does not need any attesting witness
like the gift deed, which requires at least two
attesting witnesses at the time of its execution as
per Section 123 of the Transfer of Property Act,
1882; and Secondly, Section 68 of the Evidence Act,
1872, which deals with the examination of the
attesting witness to prove the execution of the
document, does not apply to sale deed, which is
1
governed by Section 54 of the Transfer of Property
Act.
21) It is not in dispute that the appellant
(defendant) in this case did not dispute the
respondent's vendor’s (Housing Society) title. On
the other hand, she, in clear terms, admitted their
title in her written statement. It is also not in
dispute that the respondent entered in witness box
and proved its execution and further did not raise
any objection when the sale deed was being
exhibited in evidence and indeed, rightly for want of
any legal basis.
22) In the light of these admitted facts, we are of
the view that the sale deed dated 29.12.1981 was
duly proved by the respondent and was, therefore,
rightly relied on by the High Court for passing a
decree of possession against the appellant. It was,
in our opinion, a clear case where the respondent
had a better title of the suit land as against the
1
appellant, who had no title to the suit land. All that
the appellant had was a plea of adverse possession
which was not held proved.
23) This being the only point involved in the case
and the same having been answered against the
appellant, we find no merit in the appeal. The
appeal thus fails and is accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 23, 2017
1
