Full Judgment Text
2025 INSC 1092
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 720 of 2015
Kisan Vithoba Aakhade (D)
Through LRs. and Others
…Appellants
Versus
Suresh Tukaram Nerkar
…Respondent
J U D G M E N T
K. VINOD CHANDRAN, J.
The concurrent findings on facts as entered into
by the trial court and the first appellate court, to reject
the suit filed, was overturned by the High Court in
Second Appeal holding, the reading of the document
establishing title; of the plaintiff and the findings on
possession; of the defendants, perverse.
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2025.09.09
17:50:21 IST
Reason:
Page 1 of 11
Civil Appeal No. 720 of 2015
2. Shri Satyajit A. Desai, learned counsel for the
appellants argued that the sale deed exhibited at Ext. 81,
was produced by the plaintiff. Though it showed the
extent of 150 square metres, actually as per the revenue
records produced by the defendants, as on the date of
sale deed the vendor of the plaintiff had possession only
of 109.70 square metres. The balance portion was an
open space which was in the possession of the deceased
st
1 appellant, the 8th defendant in the suit. The revenue
records were corrected after the written statement was
filed by the defendants. Despite assertion of possession
by the plaintiff, in the Commission taken out by the
th
plaintiff it was found with the 9 defendant. Even then the
plaintiff did not seek for recovery of possession. It is
argued that there was no question of law arising in the
Second Appeal and the High Court erred in reversing the
concurrent finding on facts of the trial court and the first
appellate court.
Page 2 of 11
Civil Appeal No. 720 of 2015
3. Shri Gagan Sanghi, learned counsel for the
respondent No. 1/ plaintiff read to us the reliefs sought in
the plaint, which was a declaration of ownership and
possession with consequential injunction. The plaintiff
was in possession of the entire property wherein
admittedly there was a building. The disputed land was
lying contiguous to the plot in which the building was
constructed. The defendants were dumping waste in the
property and keeping manure thereon, which was
objected to. On objections raised there was a threat
levelled and hence the suit was filed. The mere finding of
manure and waste on the property cannot lead to a
finding of possession. The appellate court wrongly found
that the title deed showed only a lower extent which was
found to be a mistake of fact amounting to perversity by
the High Court.
4. The plaint was filed for declaration of ownership
and possession and consequential injunction from
Page 3 of 11
Civil Appeal No. 720 of 2015
interference with the open space, lying adjacent to the
residential building. The property as covered by Ext. 81
st
title deed was more fully described in the 1 paragraph
of the plaint, for which the declaration was sought insofar
as the ownership and possession as also consequential
permanent injunction against the defendants from
interfering with the ownership and possession of the
plaintiff. The plaint averments clearly indicate that the
suit was necessitated since the defendants failed to give
heed to the objections raised by the plaintiff against the
defendants using the property to keep manure and dump
waste.
5. The suit was compromised insofar as the
defendants 1 to 7 are concerned. Defendants 8 to 12 went
to trial but with only a written objection to the IA for
th
temporary injunction by the 9 defendant. On a query
being put to the learned counsel appearing for the
appellants, it was asserted that the 8th defendant
Page 4 of 11
Civil Appeal No. 720 of 2015
th
adopted the objection filed by the 9 defendant to the I.A
praying temporary injunction, which was adopted as the
th
written statement of the 9 defendant also. However, we
notice from the judgment of the trial court itself that the
th th
8 defendant failed to file a written statement, and the 9
defendant alone contested the matter and adopted the
th
objection filed to the IA praying injunction, as the 9
defendant’s written statement. Defendants 10 to 12
remained ex-parte. We are surprised with the
submission made by the learned counsel for the
appellants to the specific query made by us, clearly
contrary to the records. We find that the suit has not been
th
contested by the 8 defendant or the defendants 10 to 12
and they have chosen to file an appeal from the order in
th
second appeal, along with the 9 defendant.
th
6. Be that as it may, it was the contention of the 9
defendant that the property was his ancestral property,
and he had been using it as a dung heap and for waste
Page 5 of 11
Civil Appeal No. 720 of 2015
disposal while also claiming common use as per an oral
partition of 1974. The trial court found that due to the
discrepancy in the revenue records; the correction
regarding the extent having been made during the
pendency of the suit, no reliance could be placed on the
same. It was hence found that the plaintiff could not
establish his title either over ‘ABCD’, marked in the map
wherein the building existed and also ‘PCDF’, the
adjacent open plot which was the bone of contention
th
between the plaintiff and the 9 defendant. The first
appellate court went further to find that since there was
no claim for recovery of possession, the suit has to be
dismissed under Section 34 of the Specific Relief Act,
1963, specifically the declaratory relief prayed for, being
also a matter of discretion. It was also found by the first
appellate court that the sale deed was only with respect
to 109.70 square metres.
Page 6 of 11
Civil Appeal No. 720 of 2015
7. The plaint was accompanied with a map showing
the two different extents lying contiguous within ‘ABCD’
the disputed open plot lying adjacent demarcated as
‘PCDF’. There was no dispute raised as against the plot
th
in which there was a residential building, even by the 9
defendant who alone contested the suit. There was no
cause for the trial court to find the title of entire ‘ABCD’ to
be not established especially when there was a title
deed. The Commissioner has given specific
measurements of the property and without a finding that
the building was not constructed at least in the 109.70
square metres, the trial court ought not to have declined
the relief of declaration with respect to the entire ‘ABCD’.
8. Insofar as the land indicated as ‘PCDF’, the trial
court entered a finding based on the Commissioner’s
report. The Commissioner’s report only spoke of the
manure kept and waste dumped in the property; which
according to us cannot be a valid ground to find
Page 7 of 11
Civil Appeal No. 720 of 2015
possession, especially when the case of the plaintiff was
that waste is being thrown in the property and manure
th
kept by the 9 defendant, without permission and
despite specific objection raised against such acts.
9. We also see from the Judgment of the trial court
th
that the 9 defendant had claimed that in an oral partition
by the sons and brothers of the father of the vendor of the
plaintiff, the open land was kept in common. This claim
was taken without any pleading or evidence regarding
his relationship with the vendors family, who sold the
property which devolved on him. The vendor of the
plaintiff was the son of the original owner whose brothers
and sons are said to have entered into an oral partnership
in the year 1971. But for the bland assertions of partition
and common use, nothing is produced to establish the
same nor is anybody examined to substantiate the
contentions. Without any evidence regarding the oral
partition and without establishing the connection with
Page 8 of 11
Civil Appeal No. 720 of 2015
such partition or relationship with the vendor or his
th
father, who was the original owner, the 9 defendant
could not have raised a valid claim of possession-in-
common, of the property.
10. The High Court in the second appeal looked into
the sale deed and found that it conveyed 150 square
metres of property which was comprised in the two
extents indicated separately in the map and together in
the plaint description. The High Court also found that the
mere reason of the manure and waste having been found
in the property, cannot lead to a finding of possession;
which finding is perverse. We are in perfect agreement
with the findings of the High Court.
11. The revenue records produced by the plaintiff
showed the corrected area as per the sale deed. Merely
because the correction was done in the course of the suit
is no reason to disbelieve the public record maintained.
The written submissions indicate that the application for
Page 9 of 11
Civil Appeal No. 720 of 2015
correction was filed much before the suit was filed and
the documents were produced in first appeal by an
application under Order 41 Rule 27 of the Civil
Procedure Code, which however was rejected. Even
dehors such proof the latest revenue records having
shown the actual extent, it was for the defendants to
disprove the same. The trial court ought not to have
suspected the sanctity of the correction, unless it was
disproved.
12. The first appellate court’s finding on Section 34 of
th
the Specific Relief Act cannot be sustained since the 9
defendant did not establish possession. PW2, known to
both parties, deposed that the vendor of the plaintiff used
to tie his cattle in the property. It was also deposed that
the 9th defendant used to keep manure and dump waste
in the open plot, since the plaintiff was not residing
therein. Hence, the plaintiff’s vendor’s possession is
Page 10 of 11
Civil Appeal No. 720 of 2015
established and the plea of his common use set up by the
th
9 defendant is demolished.
st
13. We cannot but reiterate that the deceased 1
nd
appellant, now represented by the 2 appellant and the
appellants 3 to 5 never contested the suit and they cannot
file an appeal and prosecute it based on the contentions
th
of the 9 defendant though an identity of interest is
th
claimed by the 9 defendant.
14. For all the above reasons, we find absolutely no
merit in the Appeal and the same stands dismissed.
15. Pending applications, if any, shall stand disposed
of.
….….…………………….….. J.
(Prashant Kumar Mishra)
.….….…………………….….. J.
(K. Vinod Chandran)
New Delhi;
September 09, 2025.
Page 11 of 11
Civil Appeal No. 720 of 2015
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 720 of 2015
Kisan Vithoba Aakhade (D)
Through LRs. and Others
…Appellants
Versus
Suresh Tukaram Nerkar
…Respondent
J U D G M E N T
K. VINOD CHANDRAN, J.
The concurrent findings on facts as entered into
by the trial court and the first appellate court, to reject
the suit filed, was overturned by the High Court in
Second Appeal holding, the reading of the document
establishing title; of the plaintiff and the findings on
possession; of the defendants, perverse.
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2025.09.09
17:50:21 IST
Reason:
Page 1 of 11
Civil Appeal No. 720 of 2015
2. Shri Satyajit A. Desai, learned counsel for the
appellants argued that the sale deed exhibited at Ext. 81,
was produced by the plaintiff. Though it showed the
extent of 150 square metres, actually as per the revenue
records produced by the defendants, as on the date of
sale deed the vendor of the plaintiff had possession only
of 109.70 square metres. The balance portion was an
open space which was in the possession of the deceased
st
1 appellant, the 8th defendant in the suit. The revenue
records were corrected after the written statement was
filed by the defendants. Despite assertion of possession
by the plaintiff, in the Commission taken out by the
th
plaintiff it was found with the 9 defendant. Even then the
plaintiff did not seek for recovery of possession. It is
argued that there was no question of law arising in the
Second Appeal and the High Court erred in reversing the
concurrent finding on facts of the trial court and the first
appellate court.
Page 2 of 11
Civil Appeal No. 720 of 2015
3. Shri Gagan Sanghi, learned counsel for the
respondent No. 1/ plaintiff read to us the reliefs sought in
the plaint, which was a declaration of ownership and
possession with consequential injunction. The plaintiff
was in possession of the entire property wherein
admittedly there was a building. The disputed land was
lying contiguous to the plot in which the building was
constructed. The defendants were dumping waste in the
property and keeping manure thereon, which was
objected to. On objections raised there was a threat
levelled and hence the suit was filed. The mere finding of
manure and waste on the property cannot lead to a
finding of possession. The appellate court wrongly found
that the title deed showed only a lower extent which was
found to be a mistake of fact amounting to perversity by
the High Court.
4. The plaint was filed for declaration of ownership
and possession and consequential injunction from
Page 3 of 11
Civil Appeal No. 720 of 2015
interference with the open space, lying adjacent to the
residential building. The property as covered by Ext. 81
st
title deed was more fully described in the 1 paragraph
of the plaint, for which the declaration was sought insofar
as the ownership and possession as also consequential
permanent injunction against the defendants from
interfering with the ownership and possession of the
plaintiff. The plaint averments clearly indicate that the
suit was necessitated since the defendants failed to give
heed to the objections raised by the plaintiff against the
defendants using the property to keep manure and dump
waste.
5. The suit was compromised insofar as the
defendants 1 to 7 are concerned. Defendants 8 to 12 went
to trial but with only a written objection to the IA for
th
temporary injunction by the 9 defendant. On a query
being put to the learned counsel appearing for the
appellants, it was asserted that the 8th defendant
Page 4 of 11
Civil Appeal No. 720 of 2015
th
adopted the objection filed by the 9 defendant to the I.A
praying temporary injunction, which was adopted as the
th
written statement of the 9 defendant also. However, we
notice from the judgment of the trial court itself that the
th th
8 defendant failed to file a written statement, and the 9
defendant alone contested the matter and adopted the
th
objection filed to the IA praying injunction, as the 9
defendant’s written statement. Defendants 10 to 12
remained ex-parte. We are surprised with the
submission made by the learned counsel for the
appellants to the specific query made by us, clearly
contrary to the records. We find that the suit has not been
th
contested by the 8 defendant or the defendants 10 to 12
and they have chosen to file an appeal from the order in
th
second appeal, along with the 9 defendant.
th
6. Be that as it may, it was the contention of the 9
defendant that the property was his ancestral property,
and he had been using it as a dung heap and for waste
Page 5 of 11
Civil Appeal No. 720 of 2015
disposal while also claiming common use as per an oral
partition of 1974. The trial court found that due to the
discrepancy in the revenue records; the correction
regarding the extent having been made during the
pendency of the suit, no reliance could be placed on the
same. It was hence found that the plaintiff could not
establish his title either over ‘ABCD’, marked in the map
wherein the building existed and also ‘PCDF’, the
adjacent open plot which was the bone of contention
th
between the plaintiff and the 9 defendant. The first
appellate court went further to find that since there was
no claim for recovery of possession, the suit has to be
dismissed under Section 34 of the Specific Relief Act,
1963, specifically the declaratory relief prayed for, being
also a matter of discretion. It was also found by the first
appellate court that the sale deed was only with respect
to 109.70 square metres.
Page 6 of 11
Civil Appeal No. 720 of 2015
7. The plaint was accompanied with a map showing
the two different extents lying contiguous within ‘ABCD’
the disputed open plot lying adjacent demarcated as
‘PCDF’. There was no dispute raised as against the plot
th
in which there was a residential building, even by the 9
defendant who alone contested the suit. There was no
cause for the trial court to find the title of entire ‘ABCD’ to
be not established especially when there was a title
deed. The Commissioner has given specific
measurements of the property and without a finding that
the building was not constructed at least in the 109.70
square metres, the trial court ought not to have declined
the relief of declaration with respect to the entire ‘ABCD’.
8. Insofar as the land indicated as ‘PCDF’, the trial
court entered a finding based on the Commissioner’s
report. The Commissioner’s report only spoke of the
manure kept and waste dumped in the property; which
according to us cannot be a valid ground to find
Page 7 of 11
Civil Appeal No. 720 of 2015
possession, especially when the case of the plaintiff was
that waste is being thrown in the property and manure
th
kept by the 9 defendant, without permission and
despite specific objection raised against such acts.
9. We also see from the Judgment of the trial court
th
that the 9 defendant had claimed that in an oral partition
by the sons and brothers of the father of the vendor of the
plaintiff, the open land was kept in common. This claim
was taken without any pleading or evidence regarding
his relationship with the vendors family, who sold the
property which devolved on him. The vendor of the
plaintiff was the son of the original owner whose brothers
and sons are said to have entered into an oral partnership
in the year 1971. But for the bland assertions of partition
and common use, nothing is produced to establish the
same nor is anybody examined to substantiate the
contentions. Without any evidence regarding the oral
partition and without establishing the connection with
Page 8 of 11
Civil Appeal No. 720 of 2015
such partition or relationship with the vendor or his
th
father, who was the original owner, the 9 defendant
could not have raised a valid claim of possession-in-
common, of the property.
10. The High Court in the second appeal looked into
the sale deed and found that it conveyed 150 square
metres of property which was comprised in the two
extents indicated separately in the map and together in
the plaint description. The High Court also found that the
mere reason of the manure and waste having been found
in the property, cannot lead to a finding of possession;
which finding is perverse. We are in perfect agreement
with the findings of the High Court.
11. The revenue records produced by the plaintiff
showed the corrected area as per the sale deed. Merely
because the correction was done in the course of the suit
is no reason to disbelieve the public record maintained.
The written submissions indicate that the application for
Page 9 of 11
Civil Appeal No. 720 of 2015
correction was filed much before the suit was filed and
the documents were produced in first appeal by an
application under Order 41 Rule 27 of the Civil
Procedure Code, which however was rejected. Even
dehors such proof the latest revenue records having
shown the actual extent, it was for the defendants to
disprove the same. The trial court ought not to have
suspected the sanctity of the correction, unless it was
disproved.
12. The first appellate court’s finding on Section 34 of
th
the Specific Relief Act cannot be sustained since the 9
defendant did not establish possession. PW2, known to
both parties, deposed that the vendor of the plaintiff used
to tie his cattle in the property. It was also deposed that
the 9th defendant used to keep manure and dump waste
in the open plot, since the plaintiff was not residing
therein. Hence, the plaintiff’s vendor’s possession is
Page 10 of 11
Civil Appeal No. 720 of 2015
established and the plea of his common use set up by the
th
9 defendant is demolished.
st
13. We cannot but reiterate that the deceased 1
nd
appellant, now represented by the 2 appellant and the
appellants 3 to 5 never contested the suit and they cannot
file an appeal and prosecute it based on the contentions
th
of the 9 defendant though an identity of interest is
th
claimed by the 9 defendant.
14. For all the above reasons, we find absolutely no
merit in the Appeal and the same stands dismissed.
15. Pending applications, if any, shall stand disposed
of.
….….…………………….….. J.
(Prashant Kumar Mishra)
.….….…………………….….. J.
(K. Vinod Chandran)
New Delhi;
September 09, 2025.
Page 11 of 11
Civil Appeal No. 720 of 2015