Kashinath Patil Vs. Narayan Balugaikar  INSC 1196 (24 September 1996)
K. Venkataswami, G.B. Pattanaik
O R D
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.
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.
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
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
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.
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 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.
appeal is accordingly dismissed. No costs.