Appeal from Order Nos. 86 and 96 of 2007. Case: Shaikh Abdullah and Ors. Vs Sakharam and Ors.. High Court of Bombay (India)
| Case Number | Appeal from Order Nos. 86 and 96 of 2007 |
| Counsel | For Appellant: R.N. Dhorde, Senior Counsel and M.H. Shaikh, Advocate and For Respondents: K.G. Khader, Advocate holding for Y.M. Khan, Advocate |
| Judges | A.I.S. Cheema, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XIV Rules 2, 2(1); Section 11; Indian Trusts Act, 1882 - Section 90 |
| Judgement Date | March 17, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
A.I.S. Cheema, J.
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These Appeals From Order have been filed by original Defendant Nos. 1 to 4 being aggrieved by the Common Judgment dated 7th October 2006 passed by District Judge, Udgir allowing the Appeals and remanding matters, in Regular Civil Appeal No. 72 of 2006 and Regular Civil Appeal No. 71 of 2006, which Appeals were filed by Respondent No. 1 Sakharam Vasaram Pawar (in Appeal From Order No. 86 of 2007) and Zimmabai w/o. Sakharam Pawar (in Appeal From Order No. 96 of 2007) respectively as their Suits being Regular Civil Suit No. 133 of 2005 (filed by Sakharam) and Regular Civil Suit No. 135 of 2005 (filed by his wife Zimmabai) had been dismissed as hit by provisions of Res-Judicata.
By the Common Judgment dated 7th October 2006, District Judge, Udgir has allowed the Appeals of the original Plaintiffs and remanded back the matters to the Civil Judge, Junior Division for decision according to law and has also directed the parties to maintain status-quo.
Trial Court had found the Regular Civil Suit No. 133 of 2005 and Regular Civil Suit No. 135 of 2005 filed by above Respondent Nos. 1 (referred herein after as Present Plaintiffs) as hit by principles of Res-Judicata in view of decision in former Suit-Regular Civil Suit No. 198 of 1986. District Judge, reversed the Judgment and Order and remanded matters.
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Brief reference needs to be made to the facts of the matter and history of litigation:-
(A). Munshi Mohammad Saheb S/o. Faijuddin had filed former Regular Civil Suit No. 198 of 1986 against Munshi Abdul Latif Saheb and others. The suit for declaration of ownership of Survey No. 205 and injunction. In this former suit, present Plaintiff Sakharam was arrayed as Defendant No. 3. The dispute related to Survey No. 205 situated at village Udgir. Copy of the plaint shows that Munshi Mohammad claimed that Defendant No. 1 Munshi Abdul Latif of that suit was owner and in possession of Survey No. 203. Survey Nos. 205 and 203 earlier belonged to one Mohammad Khamruddin, the uncle of Munshi Mohammad Saheb and Munshi Abdul Latif. He gifted the lands to Munshi Mohammad Saheb and Abdul Latif. Subsequently, according to (earlier) Plaintiff Munshi Mohammad, Survey No. 203 was given to (earlier) Defendant Munshi Abdul Latif and Survey No. 205 was given to Munshi Mohammad. Former plaint claimed that in or about 1962 under misconception (earlier) Defendant Munshi Abdul Latif applied for correction of entries by way of Mutation, to change Survey Numbers representing that the land which was in his possession was Survey No. 205 and land in actual possession of (earlier) Plaintiff Munshi Mohammad was Survey No. 203. Accordingly, Mutation Entry No. 15 dated 9th August 1962 was done. However the parties had never exchanged the actual possession of the respective lands and the record of rights showed correct position up to 9th August 1962 as per the possession and title of respective parties. In the former suit, it was pleaded that subsequently (earlier) Defendant Munshi Abdul Latif had sold land which was in his possession to Defendant Nos. 2 to 4 of that suit (which includes present Plaintiff Sakharam arrayed therein as Defendant No. 3) under misconception and mis-belief that he was having possession of Survey No. 205 and under misconception he had mentioned in the sale deed that he was selling land from Survey No. 205 to those Defendant Nos. 2 to 4. Earlier plaint mentioned that on or about 6th February 1985 Defendant No. 1 Abdul Latif had himself applied and got land measured and the cadastral surveyor guided the parties that the land which was in possession under the sale deeds executed by Abdul Latif was Survey No. 203 and not 205. The former suit claimed that the Defendants on the basis of false documents and record of right, were trying to interfere with the possession of Munshi Mohammad Saheb, in his Survey No. 205. The (earlier) Plaintiff Munshi Mohammad claimed declaration of ownership of Survey No. 205 as described in the suit and also claimed permanent injunction against Munshi Abdul Latif, the vendor of (earlier) Defendant Nos. 2 to 5 of that suit as well as against Defendant Nos. 2 to 5.
(B). Munshi Abdul Latif, the vendor of Sakharam and other defendants of the former suit filed written statement in the former suit and contested the litigation on its merits. However, Defendant Nos. 2 to 5 of Regular Civil Suit No. 198 of 1986, inspite of service of summons, remained absent and suit proceeded ex-parte against them. Civil Judge, Junior Division, Udgir by his Judgment dated 13th March 1996 decided the former Civil Suit No. 198 of 1986 in which Issue No. 1 related to the question, - whether the Plaintiffs were the owners and in possession of the suit land Survey No. 205 and Issue No. 2 - whether the Plaintiffs had proved obstruction by Defendant Nos. 1 to 5 of that suit. The issues were answered in favour of the Plaintiffs (by this time Munshi Mohammad had expired and his Legal Representatives were on record). In the Judgment of earlier suit the trial Court had considered the defence put up by Munshi Abdul Latif where he claimed that the Mutation Entry No. 15 had not been challenged and claimed that he had rightly sold Survey No. 205 and had put those Defendant Nos. 2 to 4 and other persons in possession of Survey No. 205. He had claimed that the Defendants were in adverse possession over Survey No. 205. The trial Court discussed and the issue regarding adverse possession was answered in negative. Former Trial Court discussed that Defendant Abdul Latif has admitted his application for Mutation for Entry No. 15 and because of which, from 1962 name of Defendant Abdul Latif had been entered for Survey No. 205. After considering the revenue entries, the former trial Court had gone into the question of actual possession of the parties and after considering the evidence which had been brought, (specially the evidence of Cadastral Surveyor PW-4 Ram) found that the then Plaintiff Munshi Mohammad Saheb was in possession of Survey No. 205. The former trial Court observed that Defendant No. 1 Abdul Latif was actually in possession of Survey No. 203 but was under impression that his land was bearing Survey No. 205. The then trial Court noticed that in the measurement done by Cadastral Surveyor, in the records of D.I.L.R., there was Panchnama which had been signed by Defendant Abdul Latif as well as his witness DW-3 Prabha Rathod which disclosed knowledge of Abdul Latif that although he had mentioned Survey No. 205 while...
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