Holding

The respondent, as successor to his maternal grandmother and having received possession from the mortgagee, holds a lawful title to the property, and the appellant must remove the structure.

Summary

The respondent filed a suit to remove a structure erected by the appellant and to restrain interference with his possession of a 50 ft x 30 ft plot. The plot originally belonged to the respondent's maternal grandmother, who had executed a possessory mortgage in favor of Pukharaj, who later returned the mortgage deed and delivered possession to the respondent. The trial court decreed in favor of the respondent; the appellate court reversed, holding the appellant had not produced proof of title. The Bombay High Court set aside the appellate reversal, confirming the trial court's decree, based on the respondent's succession to his grandmother's estate and the mortgagee's delivery of possession, which reinforced his lawful title. The Supreme Court upheld the High Court's decision, directing the appellant to remove the offending structure within three months and dismissing the appeal.

Issues considered

Whether the respondent, as successor to his maternal grandmother, acquired a valid title to the disputed property.
Whether the delivery of possession by the mortgagee confers or reinforces title in the successor.
Whether the appellant's oral testimony constitutes sufficient proof of title.
Whether the injunction to remove the appellant's construction is justified.

Subjects

property lawsuccessionmortgagetitleinjunctionpossessionconstruction removal

Judgment

JAGANNATH KASHINATH PATIL A
v.
NARA YAN BALUGAIKAR

SEPTEMBER, 24, 1996

[K. RAMASWAMY, K. VENKATASWAMI AND B
G.B. PATTANAIK, JJ.)

Suit-Title to property-Proof-Plaintiff respo11de11t filed suit against
defe11da11t-appellant for removi11g constrnctions and i11teferi11g with his pos-
sessio11 over the plot in dispute-Plailltiff claiming title as successor of his C
matemal gra11d~mother, ow11er of the property-Mortgagee had delivered pos-
session of the property to the plai11tiff-Appella11t failing to file any proof of
title except his oral testimo11y-Held the trial court a11d the Higlr Court were
right in decreei11g tire suit-Tire plai11tiff/respondent lravi11g been found as a
successor to the property from his matemal gr011d-mother a11d was in posses- D
sion of the property delivered by the mortgagee, succession t~ the estate of
grand-motlier fumislted him the title to the property and delivery of possession
to him by tlie mortgagee rein/orees his lawful title to and legal possession of
tire property-Respondent is entitled to have tire possession retained without
any inter-/erence as sought for and the i11jrmctio11 granted by tire trial Court
is comet in law. E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. l205 of
1980.

From the Judgment and Order dated 30.1.79 of the Bombay High
Court in SA. No. 553 of 1971. F
V.B. Joshi for the Appellant.

V.N. Ganpule, Makarand D. Adkar, S.D. Singh, Kumar Parimal and
Ejaiz Maqbool for the Respondent. G
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
690 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

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
D
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
E 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
F 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
· to "tI{e , "estate
G 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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