JAGANNATH KASHINATH PATIL v. NARA YAN BALUGAIKAR

The following Order of the Court was delivered :

This 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. · H 689

p. 690

A The admitted facts are that the respondent filed suit against the appellant for removal of construction and to restrain him from interfer·· ~ ing with his possession and enjoyment of land admeasuring 50' x 30' marked by letter "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. B In the second appeal, the High Cpurt set aside the decree of the · appellate Court and confirmed the decree of the trial Court. Thus, this appeal by special leave.

It was not disputed during the cross-examination of the witnesses that c 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 the respondent. The High Court, therefore, has taken into consideration all these factual matrix and con- eluded 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 testimony. The appellate Court has concluded that the mortgage does not create any title and proper evidence should have been produced to estab- lish title of the respondents and on that premise set aside the judgment and decree of the trial Court.

Sri 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 plain- tiff/respondent having been found as a successor to the property from his maternal grand- mother and was in possession of the pr(1{erty deliver~d G · to "tI{e , "estate by Pukhara.J,· the mortgagee, succession gra -me:>~li.b3r o JoorJRl;M .rl I 10

furnished him the :t\~1E1 .~~.,t~7 J?.~9I?flf~ 1a!f1~, ~7liv9rx Pt.tR9Afff~¥~"·f-O him by the mortgagee reinforces his lawful title to and legal possession of the 1Jf.9IJ.~r!N;1 'Oi~!'~~'iU\d<;µt ~ .· . is entitled ta:. have)1qe . '(fi00s~joruiii6tained wj~b.oJLt APY!·~~e~fm-~~¥ 1as sougb~ufor and the .inju~tgrarltel:l1 brJlhl. #

H trial Court is correct in law. The High Court rigtiH~ allowea .tlid ~4

J.KPATILv. NARAYANBALUGAIKAR 691

appeaL The appellant is directed to remove the offending structure put A 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.

The appeal is accordingly dismissed. No costs. B R.P. Appeal dismissed.

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