REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 19625 OF 2017 (ARISING OUT OF SLP (C) No. 27725/2014)

Smt.Bayanabai Kaware                ...Appellant(s)   VERSUS

Rajendra S/o Baburao Dhote        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.  

1) Leave granted.

2) This appeal is filed by the defendant against

the final judgment and order dated 11/12.10.2012

passed by the High Court of Judicature at Bombay,

Nagpur  Bench,  Nagpur  in  Second  Appeal

No.304/1997 whereby the Single Judge of the High

Court  allowed  the  appeal  filed  by  the  respondent

herein  and  reversed  the  judgment/decree  dated

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26.08.1996  passed  by  the  3rd Additional  District

Judge, Nagpur in Regular Civil Appeal No.152/1989

which  arose  out  of  judgment/decree  dated

31.01.1989 passed by 3rd Joint Civil Judge, Junior

Division,  Nagpur  in  Regular  Civil  Suit

No.1210/1985,  which  had  dismissed  the

respondent’s civil suit.    

3) In  order  to  appreciate  the  short  controversy

involved  in  the  appeal,  few  relevant  facts  need

mention hereinbelow.

4) The  appellant  is  the  defendant  whereas  the

respondent is the plaintiff in a civil suit out of which

this appeal arises.

5) The  dispute  relates  to   plot  No.12  of  field

No.13/3, P. H. 44 situated in Mouza Parsodi Tahsil,

District  Nagpur  admeasuring  1625  sq.ft.

(hereinafter referred to as the “suit land”).

6) The  suit  land  originally  belonged  to  one

Housing  Co-Operative  Society  called  –  “Subhash

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Nagar  Gruha  Nirman  Sahakari  Sanstha  Limited,

Nagpur”  (hereinafter  referred to  as  "Society”).  The

respondent  purchased  the  suit  land  from  the

Society vide registered sale deed dated 29.12.1981

and was,  accordingly,  placed in possession of  the

suit land by the Society.  

7) In  March  1985,  it  was  noticed  by  the

respondent that the appellant had encroached upon

the suit land owned by him and erected a kacha hut

on  one  portion  of  the  suit  land  without  any

authority.   This  led  the  respondent  to  serve  legal

notice dated 22.04.1985 on the appellant asking her

to remove the hut, which was illegally erected by her

on  the  suit  land.   Since  the  appellant  did  not

remove the hut,  the respondent filed a suit  being

Civil Suit No.1210/85 in the Court of Civil Judge,

Junior  Division,  Nagpur  against  the  appellant

claiming possession and mesne profits in relation to

the suit land.  

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8) The  suit  was  founded  essentially  on  the

allegation,  inter  alia, that  the  respondent  is  the

owner of the suit land having purchased the same

from  the  Society  by  registered  sale  deed  dated

29.12.1981(Ex.P-31).   It  was  alleged  that  the

respondent  was  placed  in  possession  of  the  suit

land pursuant to the sale deed.  It was alleged that

the  appellant,  in  March  1985,  un-authorisedly

entered into the suit land and erected one hut on

one portion of the suit land and hence, the suit is

filed by  the  respondent  seeking  possession of  the

suit land and also claiming the  mesne profits from

the appellant.

9) The  appellant  filed  written  statement  and

denied the  respondent's  claim.   According to  her,

the suit land was allotted to one Dhondiba Lodhi by

the Society, who then constructed his house on the

land and on his death, his wife - Hirabai became its

owner.   It  was  then averred  that  Hirabai  entered

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into an agreement with the appellant on 22.05.1972

to sell the suit land and pursuant to the agreement,

was placed in possession of the suit land.  It was

averred that since then the appellant continued to

remain in possession of the suit land without any

interruption  from  anyone  and  has  accordingly

acquired ownership of the suit land by virtue of she

being in adverse possession of the suit land.  This,

in substance, was her defense.

10) The Trial Court framed the issues and parties

adduced their evidence.  By judgment/decree dated

31.01.1989,  the  Trial  Court  dismissed  the

respondent's  suit.   It  was  held  that,  firstly,  the

respondent failed to prove the sale deed (Ex.P-31)

inasmuch  as  the  sale  deed  had  some  kind  of

discrepancies  and  also  no  attesting  witness  was

examined;  secondly,  the  appellant  was  in

possession of the suit land since 1972 and hence

perfected  her  title  over  it  by  adverse  possession;

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thirdly, the dispute, which is the  subject-matter of

civil  suit, pertained to the business of the Society

and  hence  covered  by  Section  91  of  the

Maharashtra Cooperative Societies Act (in short "the

Act")  and  is,  accordingly,  barred  under  Section

163(1) of the Act.

11) The respondent, felt aggrieved by the judgment

of the Trial Court, filed First Appeal before the 3rd

Additional  District  Judge,  Nagpur  being  Regular

Civil  Appeal No.152 of 1989. The Appellate Court,

by  judgment  dated  26.08.1996,  dismissed  the

appeal and affirmed the judgment and decree of the

Trial Court.  The Appellate Court reversed the two

findings of the Trial Court.  One was in relation to

the bar contained in Section 91 of the Act and the

other relating to the plea of adverse possession.  In

other words, the Appellate Court reversed the two

findings of the Trial Court and held that, firstly, the

bar contained in Section 91 of the Act does not hit

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the civil suit and hence maintainable in Civil Court

and  secondly,  the  appellant  (defendant)  failed  to

prove her adverse possession over the suit land and

hence cannot be declared the owner of the suit land

on the  strength of  her  alleged adverse possession

over  it.   However,  since  the  Appellate  Court

confirmed the finding of the Trial Court insofar as it

pertained  to  not  properly  proving  the  sale  deed

dated 29.12.1981 (Ex.P-31), the suit was dismissed.

In other words, the Appellate Court also held that

the respondent (plaintiff) was not able to prove the

sale deed dated 29.12.1981 in accordance with law

and  hence  no  decree  could  be  passed  in

respondent’s favour in relation to the suit land on

the strength of such unproved sale deed.  

12) Felt aggrieved by the judgment of the Appellate

Court, the respondent (plaintiff) filed Second Appeal

under  Section 100 of  the Code of  Civil  Procedure

Code,1908 (hereinafter referred to as “the Code”) in

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the  High Court  (Nagpur  Bench).   The High Court

framed the following question of law:  

“Whether  it  is  necessary  for  the  plaintiff appellant  to  examine  his  vendor  and attesting witnesses to prove his title to the suit  property  in  a  suit  for  recovery  of possession  against  the  encroacher  when there  is  a  registered sale  deed executed by his vendor in his favour?”

13) The appellant (defendant), however, did not file

any cross objection under Order 41 Rule 22 of the

Code to challenge the adverse findings recorded by

the  First  Appellate  Court  and,  therefore,  those

findings attained finality.

14) By  impugned  judgment,  the  High  Court

allowed the Second Appeal and while setting aside

of  the judgments/decrees of  the two courts below

decreed the appellant's suit.  The High Court held

that  the  respondent  has  proved  the  sale  deed  as

required in law and,  therefore,  he  was entitled to

claim decree for possession on the basis of the sale

deed (Ex.P-31) as an owner against the appellant.

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Felt  aggrieved,  the  defendant  filed  the  present

appeal by way of special leave against the judgment

of the High Court before this Court.

15) Heard Mr. Anshuman Singh, learned counsel

for  the  appellant  and  Mr.  Rahul  Chitnis,  learned

counsel for the respondent.   

16) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are  inclined  to  dismiss  the  appeal  as,  in  our

opinion, the High Court is right in its reasoning and

its conclusion.

17) As observed supra, the only question involved

in the appeal before the High Court was whether the

sale deed dated 29.12.1981 (Ex.P-31) in relation to

the suit land was duly proved by the respondent.  

18) The Trial Court and the First Appellate Court

held  that  since  the  sale  deed  was  not  properly

proved,  the  respondent's  suit  was  dismissed

whereas the  High Court  reversed the said finding

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and  held  that  the  sale  deed  was  duly  proved  as

required in law and accordingly passed the decree

for possession against the appellant in relation to

the suit land.  

19) We agree with the reasoning of the High Court.

In  our  opinion  also,  the  respondent  was  able  to

prove the sale deed and was, therefore, rightly held

entitled to claim decree for  possession of  the suit

land  on  the  strength  of  the  sale  deed  dated

29.12.1981 (Ex.P-31) against the appellant.  

20) It is for the reasons that, firstly, the execution

of the sale deed does not need any attesting witness

like  the  gift  deed,  which  requires  at  least  two

attesting witnesses at the time of its execution as

per  Section  123  of  the  Transfer  of  Property  Act,

1882; and Secondly, Section 68 of the Evidence Act,

1872,  which  deals  with  the  examination  of  the

attesting  witness  to  prove  the  execution  of  the

document,  does  not  apply  to  sale  deed,  which  is

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governed by Section 54 of the Transfer of Property

Act.  

21) It  is  not  in  dispute  that  the  appellant

(defendant)  in  this  case  did  not  dispute  the

respondent's  vendor’s  (Housing  Society)  title.   On

the other hand, she, in clear terms, admitted their

title  in  her  written  statement.   It  is  also  not  in

dispute that the respondent entered in witness box

and proved its execution and further did not raise

any  objection  when  the  sale  deed  was  being

exhibited in evidence and indeed, rightly for want of

any legal basis.   

22) In the light of these admitted facts, we are of

the view that the sale deed dated 29.12.1981 was

duly proved by the respondent and was, therefore,

rightly  relied on by  the  High Court  for  passing  a

decree of possession against the appellant.  It was,

in our opinion, a clear case where the respondent

had a  better  title  of  the  suit  land as  against  the

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appellant, who had no title to the suit land.  All that

the appellant had was a plea of adverse possession

which was not held proved.

23) This being the only point involved in the case

and  the  same  having  been  answered  against  the

appellant,  we  find  no  merit  in  the  appeal.   The

appeal thus fails and is accordingly dismissed.

                       ………...................................J. [R.K. AGRAWAL]

                             …...……..................................J.   [ABHAY  MANOHAR  SAPRE]

New Delhi; November 23, 2017  

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