Bombay High Court
LAXMAN DINKAR SHITOLE(SINCE DECD. THR. LRS) 1-A ANIL L. SHITOLE(DEC. THR. LRS) SUNIL LAXMAN SHITOLEversusVIJAY DNYABONA KADAM and ORS.
- Decided
- Disposal
- Dismissed
- Bench
- MILIND N JADHAV
Holding
The Court held that the lower courts' findings were proper, no substantial question of law arose, and therefore the second appeal must be dismissed.
Summary
The plaintiffs claimed ownership of a 3‑R parcel of land in Pune based on a registered sale deed dated 18‑06‑1987 and sought declaration, injunction and possession against the defendants, who alleged a later sale deed dated 09‑02‑1999 was valid. The trial court dismissed the suit for non‑compliance with Order VII Rule 3 of the CPC, holding that the plaint failed to describe the suit property with precise boundaries, a finding affirmed by the first appellate court. In the second appeal, the plaintiffs argued that the lower courts ignored substantive title evidence and erred by focusing on technical defects, while the defendants contended that the appeal raised no substantial question of law and that the factual findings were proper. The High Court examined the pleadings and evidence, concluding that the plaintiffs had not correlated their title documents with a clearly identifiable portion of land and had not proved forcible dispossession. Consequently, the Court held that the lower courts’ decisions were not perverse and that no substantial question of law arose. The appeal was dismissed and the earlier judgments upheld.
Issues considered
- Whether the trial and first appellate courts ignored the plaintiffs' prayer for a declaration of ownership of the suit property
- Whether the courts ignored the prayer to declare the 09‑02‑1999 sale deed as sham and bogus
- Whether the findings of the lower courts are in accordance with the evidence on record, particularly regarding compliance with Order VII Rule 3 of the CPC
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VII Rule 3, Section 100
- Indian Evidence Act, 1872 — s. 101, 102, 103, 104, 110
Subjects
- property dispute
- identification of suit property
- Order VII Rule 3
- second appeal
- Civil Procedure Code
- Indian Evidence Act
- burden of proof
- encroachment
- possession
Judgment
8.SA.676.2019.doc
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 676 OF 2019
Laxman Dinkar Shitole
(since deceased) through Legal Heirs
Anil L. Shitole
(since deceased) through Legal Heirs Appellants
Sunil Laxman Shitole & Ors. .. (Org. Plaintiffs)
Versus
Vijay Dnyanoba Kadam & Ors. Respondents
.. (Org. Defendants)
……..........
Mr. Ravindra Sonba Pachundkar, Advocate for Appellants
Ms. Vidhi Punmiya a/w Mr. Sanket Borra i/by Ms. Ankita Bamboli,
Advocates for Respondent No. 1
Ms. Seema S. Dighe i/by Mr. Priyal G. Sarda, Advocates for
Respondent Nos. 2-D(1) to 2-D(3)
……..........
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 12, 2026.
P.C.:
1. Heard Mr. Pachundkar, learned Advocate for Appellants; Ms.
Punmiya, learned Advocate for Respondent No.1 and Ms. Dighe,
learned Advocate for Respondent Nos.2-D(1) and 2-D(3).
2. Second Appeal is admitted on 31.01.2023 on the following
questions of law:-
"(i) Whether the learned Trial Court as well the learned
First Appellate Court completely ignored the prayer of
the Plaintiffs that he be declared as owner of the suit
property described in paragraph 1(b) ?
(ii) Whether the learned Trial Court and the learned First
Appellate Court completely ignored the prayer of the
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Plaintiffs that the registered sale deed dated 9th
February 1999 be declared as sham and bogus and not
binding on the Plaintiffs?
(iii) Whether the decision of the learned Trial Court and of
the learned First Appellate Court and the various
findings recorded by them are in accordance with the
evidence on record?
3. The present Second Appeal challenges the judgment and
decree dated 11.03.2019 passed by District Judge – 5, Pune in Regular
Civil Appeal No.251 of 2012 which dismissed the Appeal and in turn
confirmed and upheld judgment and decree dated 24.01.2011 passed
by 2nd Joint Civil Judge, Senior Division, Pune in Special Civil Suit
No.125 of 2001. Impugned judgment and decree is appended at page
No.12 of the Second Appeal. Parties are referred to as “Plaintiffs” and
“Defendants” for convenience. Plaintiffs are Appellants in Second
Appeal. There are two concurrent judgments of the Trial Court under
challenge.
4. It is the case of Plaintiffs that Plaintiff No.1 purchased land
admeasuring 3R out of Survey No.5, Hissa No. 2A/1 of Mouje Pimpale
Gurav, Taluka Haveli, District Pune, bearing New Survey No.5/2A/6
(hereinafter referred to as the “suit property”), by way of a registered
Sale Deed dated 18.06.1987 executed by Defendant No.2. Pursuant
thereto, Plaintiffs claim to have been put in possession of the suit
property and have become absolute owners thereof. The suit property
was accordingly recorded in the records of the Pimpri Chinchwad
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Municipal Corporation (for short “PCMC”). It is the case of Plaintiffs
that they were in peaceful possession of the suit property and had
constructed a structure admeasuring approximately 1316 sq. ft. on 2R
portion of the suit property (hereinafter referred to as the “constructed
area”)
5. It is the case of Plaintiffs that on 08.06.2000, Defendant
No.1 obstructed Plaintiffs from carrying out wire fencing over the suit
property. Consequently, Plaintiffs instituted Regular Civil Suit No. 109
of 2000 before the Court of Civil Judge, Junior Division at Pimpri,
seeking injunctive reliefs against Defendants.
6. It is further the case of Plaintiffs that during pendency of the
said Suit, on 23.06.2000, Defendant No.1 took forcible possession of
the constructed area from Plaintiffs.
7. Plaintiffs thereafter filed Application for withdrawal of said
Suit on account of jurisdictional issues and/or improper valuation,
which came to be allowed by order dated 21.12.2000. Pursuant
thereto, Plaintiffs instituted a fresh Suit seeking reliefs of declaration,
injunction and possession.
8. It is case of Plaintiffs that despite Plaintiffs’ Sale Deed of
1987 being in place, Defendant No.2 on 09.02.1999 executed a Sale
Deed in favour of Defendant No.1 which was then registered before
the Sub-Registrar Office at Pimpri. It is Plaintiffs’ case that the
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subsequent Sale Deed of Defendant No.1 is bogus and does not create
any right, title or interest or possession in favour of Defendant No.1
who is a subsequent purchaser. In the interregnum, Defendant No.2
expired and his legal heirs were brought on record, however despite
Suit summons being served and due to absence of some of the legal
heirs, the Suit proceeded ex-parte against them. Further Defendant
Nos. 2(d)(1) and 2(d)(3) appeared in the Court, they did not file their
written statement, hence the Suit proceeded without their written
statement being taken on record.
9. By judgment and order dated 24.01.2011, learned Trial
Court dismissed the Suit holding that Plaintiffs failed to comply with
the provisions of Order VII Rule 3 of the Civil Procedure Code, 1908
(for short ‘CPC’) wherein the Suit plaint did not contain correct and
adequate description of the Suit property so as to identify the same.
On 12.04.2012, Plaintiffs filed First Appeal No.251 of 2012 in the
Court of learned District Judge, Pune assailing the judgment dated
24.01.2011 passed by the Trial Court.
10. By order dated 11.03.2019, the Appellate Court dismissed
the First Appeal filed by Plaintiffs and in turn confirmed and upheld
the judgment and order dated 24.01.2011 passed by the Trial Court.
11. Hence, being aggrieved by the said judgment and order
passed by the First Appellate Court, Plaintiffs have filed the present
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Second Appeal.
12. Mr. Pachundkar, learned Advocate for Appellants - Plaintiffs
would submit that the impugned Judgment and Decree passed by the
Courts below are contrary to law, equity and the settled principles
governing adjudication of civil disputes and have therefore resulted in
grave miscarriage of justice warranting interference under Section 100
of the CPC. He would submit that both the Courts below have
committed an error apparent on the face of the record in dismissing
the suit solely on technical grounds under Order VII Rule 3 of the CPC
without appreciating the substantive rights of Plaintiffs arising out of a
registered Sale Deed dated 18.06.1987.
12.1. He would submit that Plaintiffs have duly proved their
ownership over land admeasuring 3R out of Survey No. 5, Hissa No.
2A/1 (now Survey No. 5/2A/6) by producing cogent documentary
evidence including the registered Sale Deed, Mutation Entry and 7/12
extracts in accordance with Sections 101 to 104 and 110 of the Indian
Evidence Act, 1872. He would submit that the revenue records,
mutation entries and municipal documents including property tax
receipts, assessment notice and tax bills conclusively establish
possession and enjoyment of the suit property by Plaintiffs which have
been completely overlooked by the Courts below.
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12.2. He would submit that the Courts below have failed to
appreciate that Plaintiffs have constructed a house on the Suit property
which is assessed to municipal taxes and even subjected to penalty for
non-agricultural use by the Collector, thereby evidencing settled
possession. He would submit that the finding of the Trial Court that
Plaintiffs failed to comply with Order VII Rule 3 CPC is perverse and
unsustainable, as the description of the larger property i.e. “suit
property” (3R land) is clearly identifiable and matches with the Sale
Deed and revenue records.
12.3. He would submit that the Courts below have erred in
holding that absence of a sketch map or minor discrepancies in
boundary description would be fatal to the Suit particularly when the
identity of the Suit property could be ascertained from documentary
evidence on record. He would submit that the approach of the Courts
below is hyper-technical and contrary to settled law that procedural
requirements ought not to defeat substantive rights, especially when
title is proved by registered documents. He would submit that the
Courts below have failed to consider that Defendant No.2 had already
sold 3R land to Plaintiffs in the year 1987 and hence he had no
subsisting right to execute subsequent Sale Deed dated 04.02.1999 in
favour of Defendant No.1 in respect of the same property.
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12.4. He would submit that therefore the burden shifted on
Defendant No.1 to establish that the land purchased by him was
distinct from Plaintiffs’ land, which has not been discharged by him in
accordance with Sections 102 to 104 of the Indian Evidence Act, 1872.
He would submit that both subordinate Courts have erroneously held
that Plaintiffs failed to prove that the property purchased by Defendant
No.1 formed part of Plaintiffs’ 3R land, without considering the
surrounding circumstances, layout and boundary inconsistencies. He
would submit that the evidence on record clearly demonstrates
inconsistencies and discrepancies in the boundaries described in the
Sale Deed of Defendant No.1 including interchange of northern and
southern boundaries and incorrect depiction of adjoining owners,
thereby rendering the said subsequent Sale Deed doubtful. He would
submit that the common western boundary of both Plaintiffs and
Defendant No.1 being the same clearly indicates overlapping of
properties, which has not been properly appreciated by the Courts
below.
12.5. He would submit that the layout and measurement
inconsistencies, including the existence of a common road and
variation in plot dimensions, clearly establish that Defendant No.1 is in
possession of land in excess of what was conveyed under his Sale
Deed. He would submit that the Courts below have failed to appreciate
that Plaintiffs’ case was one of dispossession from a specific
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“constructed area” (2R out of 3R land) and therefore strict
mathematical precision in boundary description was not required when
possession and title were otherwise established.
12.6. He would submit that the finding of the Courts below that
forcible dispossession is “hard to accept” is perverse and based on
conjectures, inasmuch as no adverse inference could have been drawn
merely due to absence of police complaint. He would submit that the
Courts below have failed to consider that Plaintiffs had earlier filed a
Suit for injunction, which was withdrawn with liberty to file a fresh
Suit and the present Suit is a continuation of their lawful claim.
12.7. He would submit that the finding regarding non-payment of
costs in judgment passed by the First Appellate Court is irrelevant and
cannot be a ground to non-suit Plaintiffs in the present proceedings.
He would submit that Plaintiffs have established a clear chain of title
and possession whereas Defendant No.1 has failed to establish lawful
possession beyond the extent of land legally purchased by him. He
would submit that the concurrent findings recorded by the Courts
below are perverse, contrary to the evidence on record and suffer from
non-consideration of material evidence thereby giving rise to
substantial questions of law. He would submit that the impugned
Judgment and Decree are illegal, inequitable and liable to be set aside
in the interest of justice.
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13. PER CONTRA, Ms. Punamiya, learned Advocate for
Respondent No.1 would submit that the present Second Appeal is
devoid of merit and does not give rise to any substantial question of
law as required under Section 100 of the CPC. She would submit that
the scope of interference in a Second Appeal is extremely limited and
does not permit re-appreciation of evidence or disturbance of
concurrent findings of fact recorded by both the Courts below which is
attempted to be done by the Appellants. She would submit that both
the Trial Court and the First Appellate Court have concurrently
dismissed the Suit and First Appeal of Plaintiffs after proper
appreciation of pleadings and evidence and therefore no interference is
warranted.
13.1. She would submit that the Courts below have rightly
dismissed the suit on the ground of non-compliance with Order VII
Rule 3 of the CPC as Plaintiffs failed to provide a clear and identifiable
description of the suit property. She would submit that in the absence
of proper boundaries, measurements and identification particulars, no
executable decree could ever have been passed. She would submit that
the burden of proving title, identity and possession squarely lie upon
Plaintiffs under Sections 101 to 104 of the Indian Evidence Act, 1872,
which has not been discharged by Plaintiffs. She would submit that
mere production of documents such as Sale Deed, mutation entries or
tax receipts without proper identification of the area, dimensions and
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location of the Suit property without its boundaries is insufficient to
establish ownership or possession.
13.2. She would submit that Plaintiffs have failed to prove that the
property purchased by Defendant No.1 under the Sale Deed dated
09.02.1999 overlaps with or forms part of Plaintiffs’ land. She would
submit that no cogent evidence, survey report or reliable map has been
produced by Plaintiffs to substantiate the allegations of encroachment
or dispossession. She would submit that the allegations of forcible
dispossession are unsubstantiated and have rightly been disbelieved
and rejected by both the Subordinate Courts in the absence of
contemporaneous evidence. She would submit that minor
discrepancies in boundary descriptions of Defendant No.1’s Sale Deed
do not invalidate the same, nor do they support Plaintiffs’ case which
itself suffers from fundamental defects.
13.3. She would submit that Plaintiffs are attempting to reopen
pure questions of fact under the guise of a Second Appeal, which is
impermissible in law. She would submit that no substantial question of
law arises for consideration and the concurrent findings recorded by
both the Courts below are legal, valid and based on proper
appreciation of evidence. She would therefore submit that the present
Second Appeal is devoid of merits and is liable to be dismissed with
costs.
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14. Ms, Dighe, learned Advocate for Defendant Nos.2-D(1) and
2-D(3) would submit that the present Second Appeal is devoid of merit
and does not give rise to any substantial question of law within the
meaning of Section 100 of the CPC. She would submit that both the
Trial Court and the First Appellate Court have concurrently dismissed
the Suit upon due appreciation of pleadings and evidence on record.
She would submit that such concurrent findings of fact are binding and
cannot be interfered with unless shown to be perverse or contrary to
settled legal principles, which the Appellants have failed to
demonstrate. She would submit that the present Second Appeal is
merely an attempt to seek re-appreciation of evidence, which is
impermissible in the limited jurisdiction of this Court.
14.1. She would submit that the Plaintiffs have failed to discharge
the burden of proving the identity, title and possession of the Suit
property as required under Sections 101 to 104 of the Indian Evidence
Act, 1872. She would submit that the Courts below have rightly held
that there is non-compliance with Order VII Rule 3 of the CPC,
inasmuch as the Suit Plaint does not contain a clear and identifiable
description of the Suit property with precise boundaries and
measurements. She would submit that mere production of a Sale Deed,
mutation entries or revenue records, without proper correlation to a
specifically identifiable property, is insufficient to grant relief. She
would submit that in absence of proper identification, no executable
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decree for declaration or possession could have been passed, and
therefore the dismissal of the Suit is legally justified.
14.2. She would submit that the present Respondents, being legal
heirs of original Defendant No.2, stand on a distinct footing and have
no direct or substantive role in the dispute relating to alleged
possession or dispossession between the Plaintiffs and Defendant No.1.
She would submit that no specific or substantive relief has been
claimed against these Respondents, nor are there any pleadings
alleging fraud, misrepresentation or collusion on their part. She would
submit that even otherwise, the Plaintiffs are required to succeed on
the strength of their own case, irrespective of the defence, and having
failed to establish the same, no liability can be fastened upon these
Respondents. She would submit that the continuation of the present
Appeal against Respondent Nos.2(d)(1) and 2(d)(3) is therefore
misconceived and unwarranted, and the same deserves to be dismissed
with costs insofar as these Respondents are concerned.
15. I have heard Mr. Pachundkar, learned Advocate for
Appellants; Ms. Punmiya, learned Advocate for Respondent No.1 and
Ms. Dighe, learned Advocate for Respondent Nos.2-D(1) and 2-D(3)
and perused the record of the case. Submissions made by the learned
Advocates at the bar have received due consideration of the Court.
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16. After reading the twin judgments, I am of the opinion that
both the Trial Court as well as the First Appellate Court have
concurrently recorded findings after detailed appreciation of oral and
documentary evidence on record. It is seen that such concurrent
findings cannot be interfered with unless the same are demonstrated to
be perverse, based on no evidence, or suffering from non-consideration
of material evidence, which is not established in the present case.
17. The principal issue in the present case pertains to
identification of the Suit property and entitlement of Plaintiffs to
reliefs of declaration, injunction and possession. It is seen that the Trial
Court has dismissed the Suit on the ground of non-compliance with
Order VII Rule 3 of the CPC and the said finding has been affirmed by
the First Appellate Court. When the Suit Plaint is seen, it does not
contain a clear, specific and identifiable description of the Suit
property with precise boundaries and measurements so as to enable
the Court to pass an executable decree. It is pertinent to note that in
cases relating to immovable property, proper identification of the suit
property is a sine qua non for grant of relief and failure to comply with
the same goes to the root of the matter.
18. It is further seen that though Plaintiffs have relied upon a
registered Sale Deed dated 18.06.1987, mutation entries and revenue
records, they have failed to correlate the said documents with a clearly
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identifiable portion of land on the ground. Neither they have been able
to prove the same in evidence. This Court finds that mere production
of title documents, in absence of cogent evidence establishing the exact
location, boundaries and extent of the Suit property, is insufficient to
prove title and possession. It is seen that the Plaintiffs have not
produced any survey map, measurement report or expert evidence to
prove and substantiate the identity of the suit property or to
demonstrate the alleged encroachment by Defendant No.1.
19. The submission on behalf of the Plaintiffs that there are
minor discrepancies in boundary description and they ought to be
ignored cannot be accepted in the facts of the present case. It is
clarified that these deficiencies in the Suit Plaint are not minor or
technical in nature, but go to the core issue of identification of the suit
property and the encroachment by Defendant No. 1 and in the
absence of a definite and ascertainable description, the Court cannot
grant a decree which is vague or incapable of execution.
20. It is seen that the Plaintiffs have also failed to establish their
possession over the alleged “constructed area” or their dispossession
therefrom on 23.06.2000. This Court finds that the allegation of
forcible dispossession is not supported by any cogent or
contemporaneous evidence such as police complaint, independent
witness testimony or documentary corroboration. It is seen that the
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Courts below have rightly disbelieved the said allegation on
appreciation of evidence and the said finding also does not warrant
any interference.
21. It is seen that Plaintiffs have failed to establish that the
property purchased / held by Defendant No.1 under Sale Deed dated
09.02.1999 overlaps with or forms part of their Suit property allegedly
purchased by the Plaintiffs. It is further seen that no reliable evidence
has been produced to demonstrate such overlap or encroachment. This
Court further finds that the burden of proving such overlap squarely
lied upon the Plaintiffs, which has not been discharged.
22. This Court finds that the submissions advanced on behalf of
the Plaintiffs essentially seek re-appreciation of evidence and re-
evaluation of factual findings recorded by the Courts below. This Court
finds that such an exercise is impermissible in Second Appeal
jurisdiction unless the findings are shown to be perverse or based on
no evidence, which is not the case herein. It is seen that Defendant
Nos. 2(d)(1) and 2(d)(3), being legal heirs of original Defendant No.2,
stand on a distinct footing and no specific relief has been claimed
against them. Also there are no pleadings or evidence alleging fraud,
misrepresentation or collusion on their part in relation to the
transactions in question. The dispute essentially pertains to competing
claims between the Plaintiffs and Defendant No.1 which are
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completely fact based and no independent cause of action is made out
against the Defendants.
22.1. In view of the aforesaid observations and findings, I am of
the considered opinion that the concurrent judgments and decrees
passed by the Trial Court dated 24.01.2011 and the First Appellate
Court dated 11.03.2019 are well-reasoned, based on proper
appreciation of evidence and in accordance with well settled principles
of law. I am of the opinion that no substantial question of law arises
for consideration in the present Second Appeal and therefore no
interference is warranted. Accordingly, first two questions of law
framed by Court in the admission order dated 31.01.2023 are
answered in the negative and third question of law is answered in the
affirmative.
23. In view of the above circumstances and findings, Second
Appeal is dismissed and the impugned order dated 11.03.2019 is
upheld and confirmed.
24. Resultantly, Second Appeal is dismissed.
25. Request for extension of interim relief made by Mr.
Pachundkar, learned Advocate for Appellants stands rejected.
[ MILIND N. JADHAV, J. ]
Digitally signed
by RAVINDRA
RAVINDRA MOHAN
AMBERKAR
MOHAN Date:
AMBERKAR 2026.05.13
13:33:07
+0530
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