Kisan Vithoba Aakhade (D) Th Lrs vs Suresh Tukaram Nerkar

Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 720 of 2015

Kisan Vithoba Aakhade (D) Through LRs. and Others …Appellants Versus Suresh Tukaram Nerkar …Respondent

JUDGMENT

K. VINOD CHANDRAN, J.

The concurrent findings on facts as entered into

by the trial court and the first appellate court, to reject

the suit filed, was overturned by the High Court in

Second Appeal holding, the reading of the document

establishing title; of the plaintiff and the findings on

Signature Not Verified possession; of the defendants, perverse. Digitally signed by VARSHA MENDIRATTA Date: 2025.09.09 17:50:21 IST Reason: Page 1 of 11 Civil Appeal No. 720 of 2015

2. Shri Satyajit A. Desai, learned counsel for the

appellants argued that the sale deed exhibited at Ext. 81,

was produced by the plaintiff. Though it showed the

extent of 150 square metres, actually as per the revenue

records produced by the defendants, as on the date of

sale deed the vendor of the plaintiff had possession only

of 109.70 square metres. The balance portion was an

open space which was in the possession of the deceased

1st appellant, the 8th defendant in the suit. The revenue

records were corrected after the written statement was

filed by the defendants. Despite assertion of possession

by the plaintiff, in the Commission taken out by the

plaintiff it was found with the 9th defendant. Even then the

plaintiff did not seek for recovery of possession. It is

argued that there was no question of law arising in the

Second Appeal and the High Court erred in reversing the

concurrent finding on facts of the trial court and the first

appellate court.

Page 2 of 11 Civil Appeal No. 720 of 2015

3. Shri Gagan Sanghi, learned counsel for the

respondent No. 1/ plaintiff read to us the reliefs sought in

the plaint, which was a declaration of ownership and

possession with consequential injunction. The plaintiff

was in possession of the entire property wherein

admittedly there was a building. The disputed land was

lying contiguous to the plot in which the building was

constructed. The defendants were dumping waste in the

property and keeping manure thereon, which was

objected to. On objections raised there was a threat

levelled and hence the suit was filed. The mere finding of

manure and waste on the property cannot lead to a

finding of possession. The appellate court wrongly found

that the title deed showed only a lower extent which was

found to be a mistake of fact amounting to perversity by

the High Court.

4. The plaint was filed for declaration of ownership

and possession and consequential injunction from

Page 3 of 11 Civil Appeal No. 720 of 2015 interference with the open space, lying adjacent to the

residential building. The property as covered by Ext. 81

title deed was more fully described in the 1st paragraph

of the plaint, for which the declaration was sought insofar

as the ownership and possession as also consequential

permanent injunction against the defendants from

interfering with the ownership and possession of the

plaintiff. The plaint averments clearly indicate that the

suit was necessitated since the defendants failed to give

heed to the objections raised by the plaintiff against the

defendants using the property to keep manure and dump

waste.

5. The suit was compromised insofar as the

defendants 1 to 7 are concerned. Defendants 8 to 12 went

to trial but with only a written objection to the IA for

temporary injunction by the 9th defendant. On a query

being put to the learned counsel appearing for the

appellants, it was asserted that the 8th defendant

Page 4 of 11 Civil Appeal No. 720 of 2015 adopted the objection filed by the 9th defendant to the I.A

praying temporary injunction, which was adopted as the

written statement of the 9th defendant also. However, we

notice from the judgment of the trial court itself that the

8th defendant failed to file a written statement, and the 9th

defendant alone contested the matter and adopted the

objection filed to the IA praying injunction, as the 9th

defendant’s written statement. Defendants 10 to 12

remained ex-parte. We are surprised with the

submission made by the learned counsel for the

appellants to the specific query made by us, clearly

contrary to the records. We find that the suit has not been

contested by the 8th defendant or the defendants 10 to 12

and they have chosen to file an appeal from the order in

second appeal, along with the 9th defendant.

6. Be that as it may, it was the contention of the 9th

defendant that the property was his ancestral property,

and he had been using it as a dung heap and for waste

Page 5 of 11 Civil Appeal No. 720 of 2015 disposal while also claiming common use as per an oral

partition of 1974. The trial court found that due to the

discrepancy in the revenue records; the correction

regarding the extent having been made during the

pendency of the suit, no reliance could be placed on the

same. It was hence found that the plaintiff could not

establish his title either over ‘ABCD’, marked in the map

wherein the building existed and also ‘PCDF’, the

adjacent open plot which was the bone of contention

between the plaintiff and the 9th defendant. The first

appellate court went further to find that since there was

no claim for recovery of possession, the suit has to be

dismissed under Section 34 of the Specific Relief Act,

1963, specifically the declaratory relief prayed for, being

also a matter of discretion. It was also found by the first

appellate court that the sale deed was only with respect

to 109.70 square metres.

Page 6 of 11 Civil Appeal No. 720 of 2015

7. The plaint was accompanied with a map showing

the two different extents lying contiguous within ‘ABCD’

the disputed open plot lying adjacent demarcated as

‘PCDF’. There was no dispute raised as against the plot

in which there was a residential building, even by the 9th

defendant who alone contested the suit. There was no

cause for the trial court to find the title of entire ‘ABCD’ to

be not established especially when there was a title

deed. The Commissioner has given specific

measurements of the property and without a finding that

the building was not constructed at least in the 109.70

square metres, the trial court ought not to have declined

the relief of declaration with respect to the entire ‘ABCD’.

8. Insofar as the land indicated as ‘PCDF’, the trial

court entered a finding based on the Commissioner’s

report. The Commissioner’s report only spoke of the

manure kept and waste dumped in the property; which

according to us cannot be a valid ground to find

Page 7 of 11 Civil Appeal No. 720 of 2015 possession, especially when the case of the plaintiff was

that waste is being thrown in the property and manure

kept by the 9th defendant, without permission and

despite specific objection raised against such acts.

9. We also see from the Judgment of the trial court

that the 9th defendant had claimed that in an oral partition

by the sons and brothers of the father of the vendor of the

plaintiff, the open land was kept in common. This claim

was taken without any pleading or evidence regarding

his relationship with the vendors family, who sold the

property which devolved on him. The vendor of the

plaintiff was the son of the original owner whose brothers

and sons are said to have entered into an oral partnership

in the year 1971. But for the bland assertions of partition

and common use, nothing is produced to establish the

same nor is anybody examined to substantiate the

contentions. Without any evidence regarding the oral

partition and without establishing the connection with

Page 8 of 11 Civil Appeal No. 720 of 2015 such partition or relationship with the vendor or his

father, who was the original owner, the 9th defendant

could not have raised a valid claim of possession-in-

common, of the property.

10. The High Court in the second appeal looked into

the sale deed and found that it conveyed 150 square

metres of property which was comprised in the two

extents indicated separately in the map and together in

the plaint description. The High Court also found that the

mere reason of the manure and waste having been found

in the property, cannot lead to a finding of possession;

which finding is perverse. We are in perfect agreement

with the findings of the High Court.

11. The revenue records produced by the plaintiff

showed the corrected area as per the sale deed. Merely

because the correction was done in the course of the suit

is no reason to disbelieve the public record maintained.

The written submissions indicate that the application for

Page 9 of 11 Civil Appeal No. 720 of 2015 correction was filed much before the suit was filed and

the documents were produced in first appeal by an

application under Order 41 Rule 27 of the Civil

Procedure Code, which however was rejected. Even

dehors such proof the latest revenue records having

shown the actual extent, it was for the defendants to

disprove the same. The trial court ought not to have

suspected the sanctity of the correction, unless it was

disproved.

12. The first appellate court’s finding on Section 34 of

the Specific Relief Act cannot be sustained since the 9th

defendant did not establish possession. PW2, known to

both parties, deposed that the vendor of the plaintiff used

to tie his cattle in the property. It was also deposed that

the 9th defendant used to keep manure and dump waste

in the open plot, since the plaintiff was not residing

therein. Hence, the plaintiff’s vendor’s possession is

Page 10 of 11 Civil Appeal No. 720 of 2015 established and the plea of his common use set up by the

9th defendant is demolished.

13. We cannot but reiterate that the deceased 1st

appellant, now represented by the 2nd appellant and the

appellants 3 to 5 never contested the suit and they cannot

file an appeal and prosecute it based on the contentions

of the 9th defendant though an identity of interest is

claimed by the 9th defendant.

14. For all the above reasons, we find absolutely no

merit in the Appeal and the same stands dismissed.

15. Pending applications, if any, shall stand disposed

of.

….….…………………….….. J.

(Prashant Kumar Mishra)

.….….…………………….….. J.

(K. Vinod Chandran)

New Delhi;

September 09, 2025.

Page 11 of 11 Civil Appeal No. 720 of 2015