SATYABHAMABAI NAMDEO TAKATEversusBABURAO SHIVRAM DERLE

                                                                       21-SA409-2026+.DOC

                                                                                  Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION


                                    SECOND APPEAL NO. 409 OF 2026

                      Satyabhamabai Namdeo Takate                           ...Appellant
                                      Versus
                      Baburao Shivram Derle                              …Respondent
                                               WITH
                                INTERIM APPLICATION NO. 6639 OF 2026

                      Mr. Ajay Joshi, for the Appellant.
SANTOSH
SUBHASH
KULKARNI
                                                     CORAM: N. J. JAMADAR, J.
Digitally signed by
SANTOSH SUBHASH
KULKARNI
                                                     DATED: 2nd SEPTEMBER, 2026
Date: 2026.09.07
20:24:58 +0530


                      Order:-

                      1.   Heard the learned Counsel for the Appellant.


                      2.   This Second Appeal is directed against a judgment and

                      decree dated 6th May, 2026 passed by the learned District

                      Judge, Niphad, in Regular Civil Appeal No. 45/2009, whereby

                      the appeal preferred by the Appellant - original Plaintiffs against

                      a judgment and decree dated 1 st April, 2009 passed by the

                      learned Civil Judge, Niphad, in Regular Civil Suit No. 116 of

                      2002, thereby dismissing the suit instituted by the Appellant,

                      for declaration and temporary injunction, came to be dismissed.


                      3.   The Plaintiffs asserted, Radhabai, who passed away

                      issueless on 31st January, 1934, was the holder of the property


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bearing Survey No. 143, Mauje Karajgaon, Taluka Niphad.

Radhabai had bequeathed the said land under a Will dated 7 th

February, 1934 to Narayan and Vithoba, the sons of her brother,

and Pandurang, the son of her sister, jointly. Accordingly, vide

Mutation Entry No. 654, the names of Narayan, Vithoba and

Pandurang, the predecessors-in-title of the Plaintiffs, came to be

mutated to the Record of Rights of Survey No. 143, admeasuring

28 Acres 31 Gunthas.


4.   The Plaintiffs claimed on 25th December, 1960, Mutation

Entry No. 2560 was certified, to record that the said land,

bearing Survey No. 143, was partitioned among Pandurang,

Rangnath; the son of Vithoba, and Narayan, in equal shares, i.e.

9 Acres and 18 Gunthas each, and 7 Gunthas of land was kept

in common enjoyment. The land allotted to Pandurang was thus

given Survey No. 143/1, the land allotted to Ranganath was

given Survey No. 143/2, and the land allotted to Narayan was

given Survey No. 143/3. In the Falni 12 recording the sub-

division of the Survey numbers, however, under Mutation Entry

No. 2600 dated 28th November, 1961, the area of land bearing

Survey No. 143/1 allotted to Pandurang was shown 7 Acres and

27 Gunthas only, and that of Ranganath was increased to 10

Acres and 6 Gunthas, and that of Narayan to 10 Acres and 23

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Gunthas. However, Pandurang, the predecessor-in-title of the

Plaintiffs and, after the demise of Pandurang, the Plaintiffs have

also been in actual and physical possession and cultivation of 9

Acres and 18 Gunthas of land.


5.   Defendant Nos. 1 to 3, who purchased the land bearing

Survey No. 143/2, admeasuring 4 Hectares and 9 Are, from

Ranganath Vithoba, allegedly started to cause obstruction to the

possession of the Plaintiffs on 2 nd September 2002, contending

that the Plaintiffs had committed encroachment over an area

admeasuring 1 Hectare and 6 Are. Thus, the Plaintiffs instituted

the suit seeking declarations that, the Plaintiffs were the owners

of the land admeasuring 9 Acres and 18 Gunthas, the Sale Deed

executed in favour of Defendant Nos. 1 to 3, to the extent of an

area, over and above 9 Acres and 18 Gunthas, was illegal and

not binding on the Plaintiffs, and    to restrain the defendants

from causing obstruction to the possession and cultivation of

the purportedly encroached portion admeasuring 1 Hectare and

6 Are and, in the alternative, a declaration that the Plaintiffs

had acquired ownership over the purported encroached portion

by way of adverse possession.


6.   The learned Civil Judge dismissed the suit by a judgment

and decree dated 1st April, 2009, observing, inter alia, that the

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Plaintiffs failed to establish that Pandurang, their predecessor-

in-title, has got land admeasuring 9 Acres and 18 Gunthas in

the partition among Pandurang, Raghunath, Vithoba and

Narayan. The Plaintiffs failed to establish their possession. The

relief of declaration was barred by law of limitation and the

principle of estoppel.


7.    Being aggrieved, the Plaintiffs had preferred Regular Civil

Appeal No. 45 of 2009, which was allowed by the learned

District Judge. However, in Second Appeal No. 82 of 2017, the

said judgment and decree was set aside by this Court on 19 th

August, 2014 and the First Appeal was remitted back to the

learned District Judge for afresh decision. By the impugned

judgment and order, the learned District Judge concurred with

the view of the trial Court and dismissed the appeal.


8.    Mr.   Joshi,   the   learned    Counsel   for    the   Appellant,

submitted that the courts below were in error in delving into the

legality and validity of the joint acquisition of the property by

Pandurang, Raghunath and Narayan questioning the Will

executed by Radhabai, when there was no challenge to the

legality and validity thereof by any of the parties to the suit.

Secondly, the courts below misdirected themselves in discarding

Mutation Entry No. 2560, under which original Survey No. 143

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was subdivided among Pandurang, Raghunath and Narayan in

equal shares of 9 Acres and 18 Gunthas, in the face of the

presumption of correctness of the mutation entries under the

Maharashtra Land Revenue Code, 1966 and Section 34 of the

Indian Evidence Act. Thirdly, the learned Civil Judge as well as

the learned District Judge committed a grave error in law in

placing reliance on Mutation Entry No. 2600, evidencing the

subdivision of Survey No. 143 as if Falni 12 conferred title.

Lastly, the issue of limitation was decided by the trial Court in

complete disregard to the provisions of the Limitation Act, 1963.

On each of the aforesaid counts, Mr. Joshi would urge,

substantial question of law arise for consideration.


9.   Evidently, Mutation Entry No. 654, purportedly certified

on 21st April, 1934, constitutes the substratum of the Plaintiffs

claim. It records, Radhabai, who passed away on 31st January,

1934, had bequeathed the land Survey No. 143 to Narayan,

Vithoba and Panduran under a will executed on 20th February,

1934. The courts below were justified in examining the

correctness of the case set up by the Plaintiffs as the Will was

purportedly executed by Radhabai after she passed away on 31 st

January, 1934. The reluctance of the courts below to believe the

Plaintiffs version as regards the acquisition of the suit property

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by their predecessors-in-title, as it constituted the genesis of the

Plaintiffs claim, thus cannot be faulted at. Therefore, the

Plaintiffs cannot bank upon the said Mutation Entry No. 654 to

bolster up the case that Pandurang, Vithoba and Narayan were

entitled to an equal share in Survey No. 143.


10.     Consequently, even the certification of Mutation Entry No.

2560, becomes contentious. Therefore, the Plaintiffs cannot

draw much mileage from certification of Mutation Entry No.

2560, which evidences purported sub-division of Survey No. 143

in equal shares, as the edifice of allotment of equal share in

Survey No. 143 got dismantled with Mutation Entry No. 654

being     rendered   completely    unworthy   of   credence.   Even

otherwise, mutation entries do not make or unmake title.


11.     The situation which thus obtained was that, under

Mutation Entry No. 2600, evidencing Falani 12, Survey No. 143,

was subdivided among Pandurang, Raghunath and Narayan,

and particular areas of land were shown against Survey Nos.

143/1, 143/2 and 143/3. Mutation Entry No. 2600 assumes

importance in the sense that, under the said Falni 12 the sub-

division of not only Survey No. 143 but also the other survey

numbers in the said village was effected. It would thus carry

more weight.

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12.   Evidently, the Record of Rights in respect of subject lands

were corrected in accordance with Mutation Entry No. 2600,

effected on 28th November, 1961. The suit came to be instituted

in the year 2002. It defies comprehension that the Plaintiffs

would not have had the opportunity to examine the discrepancy

in the area of Survey No. 143/1 and agitate the issue for over 40

years.


13.   From the aforesaid standpoint, the courts below have

evaluated the evidence and material on record and arrived at

concurrent findings of fact. Such concurrent findings of fact

cannot be interfered with in an appeal under the regime of

Section 100 of the Code.        No question of law, much less a

substantial question of law, arises for consideration.


14.   The Second Appeal thus stands dismissed.


15.   In   view   of   the   dismissal   of    the   Second    Appeal,

IA/6639/2026 also stands disposed.


                                              [N. J. JAMADAR, J.]




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