Full Judgment Text
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PETITIONER:
JAGANNATH KASHINATH PATIL
Vs.
RESPONDENT:
NARAYAN BALUGAIKAR
DATE OF JUDGMENT: 24/09/1996
BENCH:
K. RAMASWAMY, K. VENKATASWAMI, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the single Judge of the Bombay High Court made on January
30, 1979 in Second Appeal No.553 of 1971.
The admitted facts are that the respondent filed suit
against the appellant for removal of construction and to
restrain him from interfering with his possession and
enjoyment of land admeasuring 50’ x 30’ marked by letters "A
B C & D" in the sketch (Exh.44) claiming title to the said
plot. The trial Court decreed the suit, on appeal it was
reversed. In the second appeal, the High Court set aside the
decree of the appellate Court and confirmed the decree of
the trial Court. Thus this appeal by special leave.
It was not disputed during the cross-examination of the
witnesses that the property originally belongs to
Rukmanibai, the maternal grand-mother of the respondent who
had executed possessory mortgage in favour of one Pukharaj
and the said Pukharaj had given back the mortgage deed and
also delivered possession of the house to the respondent.
The High Court, therefore, has taken into consideration all
these factual matrix and concluded that the respondent-
plaintiff has succeeded to the estate of his grand mother
and given possession to him by the mortgagee and remained in
possession of the property. The appellant had constructed
one room and w.c. therein for convenient enjoyment of his
property. Though the appellant had set up his own title, he
has not filed any proof of title except his oral testimony.
The appellate Court has concluded that the mortgage does not
create any title and proper evidence should have been
produced to establish title of the respondents and on that
premise set aside the judgment and decree of the trial
Court.
Sri Joshi, learned counsel for the appellant, contended
that the view of the appellate Court on the above facts is
correct in law and the High Court was not justified to
interfere with the finding of fact recorded by final Court
of facts. We find no force in the contention. The
plaintiff/respondent having been found as a successor to the
property from his maternal grand-mother and was in
possession of the property delivered by Pukharaj, the
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mortgagee, succession to the estate of grand-mother
furnished him the title to the property and delivery of
possession to him by the mortgagee reinforces his lawful
title to and legal possession of the property. The
respondent is entitled to have the possession retained
without any interference as sought for and the injunction
granted by the trial Court is correct in law. The High Court
rightly allowed the second appeal. The appellant is directed
to remove the offending structure put up on the said
property within a period of three months from today. On
default, the respondent will be at liberty to have it
removed in execution of the decree and recover the costs
incurred therefor from the appellant.
The appeal is accordingly dismissed. No costs.