Second Appeal No.3 of 2005,Second Appeal No.9 of 2009

4th July, 2014.

Petitioner Counsel: Mr. G.R. USGAONKAR

Cases Cited:
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Others, 2008(5) ALL MR 451 (S.C.)=(2008) 4 SCC 594 [Para 24,29]
Nagar Palika, Jind Vs. Jagat Singh, (1995) 3 SCC 412 [Para 24,29]
Union of India & Others Vs. Vasavi Co-op. Housing Society Ltd. & Others, 2014(2) ALL MR 415 (S.C.)=(2014) 1 Supreme 1 [Para 24,29]
Bachhaj Nahar Vs. Nilima Mandal and Another, 2009 ALL SCR 1104=(2008)17 SCC 491 [Para 24,29]
Gurunath Manohar Pavaskar & Others Vs. Nagesh Siddappa Navalgund & Others, 2008 ALL SCR 373=(2007) 13 SCC 565 [Para 24,29]
Sri Thimmaiah Vs. Shabira & Others, 2008(2) ALL MR 790 (S.C.)=(2008) 4 SCC 182 [Para 24,29]
Bhavnagar Municipality Vs. Union of India & Another, (1989) 2 Scale 1218 [Para 24,29]
Dubaria Vs. Har Prasad & Another, 2010 ALL SCR 687=(2009) 9 SCC 346 [Para 24,29]
Bondar Singh & Others Vs. Nihal Singh & Others, (2003)4 SCC 161 [Para 24]
Ishwar Dass Jain (dead) through LRs. Vs. Sohan Lal (dead) by LRs., (2000)1 SCC 434 [Para 24]
Rattan Dev Vs. Pasam Devi, (2002)7 SCC 441 [Para 24,29]
Durga Das Vs. The Collector & Others, (1996)5 SCC 618 [Para 24]
Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs., 2014 ALL SCR (O.C.C.) 103=(2001)3 SCC 179 [Para 24]

JUDGMENT

JUDGMENT :- The above two appeals can be conveniently disposed of by common judgment as they pertain to the same subject-matter.

2. Heard Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants. None present for the respondents, though they have been duly served after admission, in both the appeals.

3. The Second Appeal No. 3/05 is directed against the judgment and decree dated 17/09/2004 passed by the learned Ad hoc Additional District Judge, FTC-II in Regular Civil Appeal No. 21/2004. The said Regular Civil Appeal No. 21 of 2004 was filed against the judgment and decree dated 29/01/2004 passed by the learned Civil Judge, Senior Division at Quepem (Trial Court, for short) in Regular Civil Suit No. 211/2000. The respondents were plaintiffs and the appellants were defendants in the said Civil Suit.

4. The Second Appeal No. 9/09 is directed against the judgment and decree dated 16/10/2008 passed by the learned District Judge- 4, South Goa, Margao (First Appellate Court, for short) in Regular Civil Appeal No. 88/2008. The said Regular Civil Appeal No. 88/2008 was filed against the judgment and decree dated 29/04/2008 passed by the learned Civil Judge, Junior Division, Quepem (Trial Court, for short) in Regular Civil Suit No. 46/96/B. The appellants were plaintiffs and the respondent was defendant in the said suit.

5. For the sake of convenience, the plaintiffs of Regular Civil Suit No. 211/2000 shall, hereinafter, be referred as "Karmalis and Prabhu Dessai"; the defendants of Regular Civil Suit No. 211/2000 who are the plaintiffs of Regular Civil Suit No. 46/1996 shall hereinafter be referred to as "Suresh/Surekha Kakodkar; and the defendant of Regular Civil Suit No. 46/1996 shall hereinafter be referred to as the "Municipal Council".

6. Karmalis and Prabhu Dessai had filed the said Regular Civil Suit No. 211/2000 for declaration that Suresh/Surekha Kakodkar have no right, title or interest to the suit property and, therefore, the plaintiffs are entitled to demolish the illegal structure made by Suresh/Surekha Kakodkar in the suit property bearing Survey No. 143/1 of village Kakora of Quepem Taluka; for mandatory injunction directing Suresh/Surekha Kakodkar to demolish the illegal structure being House No. 658 made in the suit property; for permanent injunction to restrain Suresh/Surekha Kakodkar, their servants, agents and relatives from interfering with, planting in, occupying, trespassing and obstructing the pathway in the suit property and/or doing any act of interference in the suit property and for mandatory injunction directing Suresh/Surekha Kakodkar to remove the rubble stones piled fencing, coconut saplings or any plantation made in the suit property.

7. Suresh/Surekha Kakodkar had filed the said Regular Civil Suit No. 46/1996 for permanent injunction to restrain the Municipal Council from demolishing the fencing and from acting under the notice bearing pathway/reg/96-11.52 dated 18/07/1996.

8. Case of Karmalis and Prabhu Dessai, in Regular Civil suit No. 211/2000, in short, was as follows :

They along with some others are co-owners in joint possession of a property known as "Noigalivorli Mordi" alias "Noigal" also known as "Madheagalivorli Mordi" bearing Land Registration Nos. 16729 and 975 and Matriz Nos. 667 and 166 and presently surveyed under No. 143/1 of village Kakora which is the suit property. There is a house which is numbered as "G" in the survey records, belonging to Shri Naguesh Bhikaji Shirodkar, who is a mundkar. Suresh Kakodkar is the son of Shri Baban Bhikaji Shirodkar, who is the brother of said Naguesh Bhikaji Shirodkar and Surekha Kakodkar is the wife of said Suresh. Suresh/Surekha Kakodkar have illegally constructed a gada which was extended from time to time and they started residing therein, which gada was in front of the said house No. "G". There is a traditional pathway which spurts from the public road on the eastern side and goes to the west and leading to the paddy field in Survey No. 142 and other ward. The said pathway passes in between houses no. G, H, L and I, J, K, M and which exists from time immemorial and is used by the villagers and other persons. Suresh/Surekha Kakodkar, who have no right, title or interest, all of a sudden, on 08/07/1996, piled and dumped laterite stones and blocked the said traditional pathway passing between the houses No. G and I, due to which, the residents of the ward filed complaint dated 08/07/1996 to the Chief Officer of Municipal Council for removal of laterite stones and clearances of the traditional pathway. The Municipal Officer inspected the site and drew sketch of the traditional pathway. On 09/07/1996, the Chief Officer of Municipal Council issued a notice to Suresh Kakodkar to clear the pathway within 24 hours, but Suresh/Surekha Kakodkar did not comply with the same and filed reply dated 10/07/1996 thereby denying the blocking of any pathway. Suresh Kakodkar, through his Advocate, issued notice to the Chief Officer alleging that he is mundkar of Shri Vasudev Gopinath Karmali in the property bearing Survey No. 143/1 and admeasuring 540 square metres and that the stones were piled within the mundkarial dwelling house. Suresh/Surekha Kakodkar filed Regular Civil Suit No. 46/96/B against the Municipal Council and obtained injunction which was, thereafter, confirmed. Suresh/Surekha Kakodkar have no right, title or interest to the suit property. Hence, the suit.

9. The case of Suresh/Surekha Kakodkar in both the suits was as under :

They have their mundkarial house in the property and that they had agreed to purchase the said mundkarial house along with the land adjacent thereto which is in their occupation and having a total area of 540 square metres. The said dwelling house bears Kakora-Municipal Council House No. 658 and the said house was constructed about 60 years back by the father of Suresh Kakodkar and father-in-law of Smt. Surekha Kakodkar. By virtue of an agreement of sale, they have agreed to purchase the said land from the Bhatkar. They are otherwise owners by adverse possession. On the northern side of the house, a pathway/access has been constructed by the Municipal Council, which has width of 2.60 metres and which leads to the houses of Pandurang Kakodkar and others and on the southern side of the house also, there is an access of width of 3 metres for the residents of other houses. The house as well as the fence around their house are in existence for last 60 years and there was never a pathway through their property. The Municipal Council is trying to demolish the fencing only to accommodate Mr.Pandurang Kakodkar, who otherwise has a 6 metres wide road towards south of his house.

10. The Municipal Council, in Regular Civil Suit No. 46/1996, in its written statement, alleged that the suit was not maintainable as there was no cause of action against the defendant. The Municipal Council stated that Suresh/Surekha Kakodkar had no right to the suit pathway and had also not produced any documents to establish any right over the said pathway which is about 40 years old and is being used by the public of Madegal Ward without any interference of any person and some time in the month of July 1996, Suresh/Surekha Kakodkar tried to block the said pathway by piling laterite stones without any authority. The Council stated that the said pathway was outside the house of Suresh/Surekha Kakodkar. It was alleged that the said blockage was removed by one of the coowners of the said property bearing Survey No. 143/1, namely Advocate Sanjay Hari Prabhudessai and some other villagers of the locality on 27/07/1996 in presence of P.I. Tony Fernandes of Curchorem Police Station and Joint Mamlatdar of Quepem and, therefore, the said pathway is now open for public and there is no obstruction to the same. The Municipal Council also stated that the suit was bad for non-joinder of necessary parties i.e. the owners of the suit property. It was alleged that the said property bearing Survey No. 143/1 is owned by the five owners. The case of Suresh/Surekha Kakodkar was denied.

11. Following issues were framed by the learned trial Court, in Regular Civil Suit No. 211/2000 :

"1. Whether the plaintiffs prove that they are co-owners of the suit property ?

2. Whether the plaintiffs prove that the defendants interfered with the suit property including the pathway ?

3. Whether the defendants prove that they are owners by adverse possession of the suit property ?"

ADDITIONAL ISSUE

1. Whether the defendants prove that they are mundcars of the landlord Shri Gurudas Karmali and said Gurudas has agreed to sell to them an area of 540 square metres wherein their mundcarial house is situated?

12. In the said Regular Civil Suit No. 211/2000, the plaintiffs (Karmalis and Prabhu Dessai) examined three witnesses in support of their case and produced various documents, whereas the defendants (Suresh/Surekha Kakodkar) examined one witness and they also produced various documents.

13. Upon consideration of the entire evidence on record, the learned Trial Court, in the said Regular Civil Suit No. 211/2000, vide judgment and order dated 29/01/2004, held that both the parties could not prove their cases. All the issues, therefore, came to be answered in the negative and consequently, the said suit came to be dismissed.

14. Karmalis and Prabhu Dessai filed Regular Civil Appeal No. 21/2004, against the judgment and decree dated 29/01/2004. The learned First Appellate Court formulated the following points for determination :

"1. Whether the plaintiffs have proved that they are entitled for permanent and mandatory injunction against the respondents/ defendants ?

2. Has the learned Civil Judge erred in dismissing the suit ?"

15. The learned First Appellate Court, by judgment and order dated 17/09/2004, partly allowed the Regular Civil Appeal No. 21/2004 and quashed and set aside the judgment dated 29/01/2004. The First appellate Court found that in their pleadings, Suresh/Surekha Kakodkar had not challenged the co-ownership of Karmalis and Prabhu Dessai over the property bearing Survey No. 143/1 of village Kakora. It was found that Suresh/Surekha Kakodkar had not specifically averred that Karmalis and Prabhu Dessai did not have right over the said property bearing Survey No. 143/1. It was also found that Suresh/Surekha Kakodkar had not pleaded that the said property bearing Survey No. 143/1 was not common and undivided property. In the face of the absence of specific denial by Suresh/Surekha Kakodkar in their written statement in said Civil Suit No. 211/2000, the First Appellate Court held that the issue, whether the plaintiffs prove that they are co-owners of the property bearing Survey No. 143/1, did not arise. The First Appellate Court found that at one hand, the Suresh/Surekha Kakodkar claimed to be residing in the said property as mundkars and at the other hand, they were claiming to be holding the land and the house by adverse possession. Both the said pleas of Suresh/Surekha Kakodkar were held to be destructive of each other. The First Appellate Court observed that it was clear that Suresh/Surekha Kakodkar did not know as to in what capacity they were holding the land and the house Survey No. 143/1. The First Appellate Court found that the names of Karmalis and Prabhu Dessai were figuring in survey records, whereas the names of Suresh/Surekha Kakodkar were not at all figuring therein. It was also found that Suresh/Surekha Kakodkar had not produced any documents to prove that they are mundkars of the house situated in Survey No. 143/1. The First Appellate Court observed that Suresh/Surekha Kakodkar did not claim any right to the house No. "G" shown in the survey plan, but they claimed to be mundkars of the house bearing Municipal No. 658. It was found that no declaration nor any registration certificate as mundkar was produced and also no evidence of adverse possession was produced. The partition deed was found to be not pertaining to survey no. 143/1. It was, therefore, held that Suresh/Surekha Kakodkar failed to prove that they had any right in the property bearing Survey No. 143/1. The First Appellate Court held that Karmalis and Prabhu Dessai proved their right to the suit property bearing Survey No. 143/1 and that Suresh/Surekha Kakodkar had no right to the same. The First Appellate Court further held that the learned trial Court rightly refused the prayer of mandatory injunction in respect of the gada since Karmalis and Prabhu Dessai admitted in cross-examination and also in the plaint that Suresh/Surekha Kakodkar constructed the gada about 10 years back and have been extending the same from time to time. The First Appellate Court held that the prayer of mandatory injunction in respect of the house No. 658 did not lie because of delay and laches and also due to acquiescence. The First Appellate Court held that Karmalis and Prabhu Dessai had made out a case for permanent injunction and for removal of the fence and plantation. Therefore, the judgment and decree dated 29/01/2004 of the Trial Court was quashed and set aside. Suresh/Surekha Kakodkar, their agents and relatives, etc. have been permanently restrained from doing any construction or interfering with or planting in the property bearing Survey No. 143/1 except using dwelling house bearing Municipal Council No. 658 and using the property for coming and going to the said residential house. Suresh/Surekha Kakodkar have been directed to remove the rubble stones piled fencing and to remove any plantation in the said property bearing Survey no. 143/1.

16. Following issues were framed by the learned Trial Court, in Regular Civil Suit No. 46/1996 :

"1. Whether the plaintiff proves that they are in possession and enjoyment of an area of 540 sq. mtrs in survey no. 143/1 over an agreement with his Bhatkar ?

2. Whether the plaintiff proves that there is a laterite stone fencing around her house since several years ?

3. Whether the plaintiff proves that action of defendant to clear alleged pathway through her suit plot in collusion with Pandurang Kakodkar is illegal ?

4. Whether the defendant proves that the suit is bad for non-joinder of other co-owners ?

5. whether the defendant proves that a pathway has been existing through plaintiffs plot since last 40 years and used by the people of locality over some time ?

6. Whether the defendant proves that fencing was demolished by Adv. Sanjay Prabhudessai and as such suit is infructuous?

7. What Order? What Relief ?"

17. In said Regular Civil Suit No. 46/1996, Suresh/Surekha Kakodkar examined Smt Surekha Kakodkar as PW1, Smt. Alexinha Misquita as PW2 and Umesh Savalaram Ajgaonkar as PW3. The Municipal Council did not examine any witness.

18. Upon consideration of the entire material on record, the learned Trial Court, in the said Regular Civil Suit No. 46/1996, vide judgment dated 29/04/2008, held that Suresh/Surekha Kakodkar proved that they are in possession and enjoyment of an area of 540 square metres from Survey No. 143/1 by virtue of an agreement with the Bhatkar. The Trial Court further held that Suresh/Surekha Kakodkar had proved that there was laterite stone fencing around their house for the last several years. The Trial Court, however, held that the said pathway has been existing through the plot of Suresh/Surekha Kakodkar since last 40 years and used by the people of locality over quite some time. Issues no. 1, 2 and 5 were answered in the affirmative, whereas issues no. 3, 4 and 6 were answered in the negative. Consequently, the suit was dismissed.

19. Aggrieved by the judgment and decree of the Trial Court in Regular Civil Suit No. 46/1996, Suresh/Surekha Kakodkar filed Regular Civil Appeal No. 88/2008 before the learned District Court, South Goa. The learned First Appellate Court formulated the following point for determination:

"Whether the plaintiffs have any right to property known as Madegal, also known as Madegalvaril Mordi, Cacora bearing survey no.143/1 of Quepem ?"

20. The First Appellate Court, vide judgment and order dated 16/10/2008 dismissed the said Regular Civil Appeal No. 88/2008. The First Appellate Court found that in the Regular Civil Suit No. 46/1996, at exhibit 39, there was a judgment passed by the Additional District Judge, Fast Track Court, South Goa, Margao in Regular Civil Appeal No. 21/2004 dated 17/09/2004, wherein it was held that Suresh/Surekha Kakodkar had failed to prove that they have any right in the property bearing Survey No. 143/1. The First Appellate Court observed that the Trial Court ought to have taken into consideration the said findings of the Additional District Judge to the effect that Suresh/Surekha Kakodkar had no right to the property bearing Survey No. 143/1 except to their dwelling house No. 658. The First Appellate Court also took into consideration that though Suresh/Surekha Kakodkar claimed to be mundkars, however, PW1 (Surekha Kakodkar) had stated that the purchase application was dismissed. In view of the above, the appeal also came to be dismissed.

21. Aggrieved by the judgment and decree dated 16/10/2008 of the First Appellate Court, passed in Regular Civil Appeal No. 21/2004, Suresh/Surekha Kakodkar have filed the aforesaid Second Appeal No. 3/2005 which has been admitted on the following substantial questions of law :

"1. Whether in a suit for injunction filed by the plaintiffs claiming to be the co-owners of the suit property can the defendants be injuncted from the suit property without having reference or regard to the title of the plaintiffs to the property, and holding that the defendants have not proved the title to the suit property and that too when the plaintiffs have not sought for restoration of possession of the suit property based on title; or in such a suit it was for the Plaintiffs to have established their title to the suit property to be entitled to the relief of dispossession of the defendants from the suit property?

2. Whether in a suit brought for preventive and mandatory injunction and for declaration that the defendants have no right, title or interest to the suit property, was it incumbent on the court to hold inquiry into right, title status and interest of the Plaintiffs to the suit property so as to grant an equitable relief of injunction as exercised by trial Court; or the finding of the 1st Appellate court while reversing the decree of the Ld. Trial Court and holding that there was no need to frame issue of title/ ownership of the Plaintiffs at all in a suit for injunction is legally sustainable?"

22. Mr. Usgaonkar, learned Counsel appearing on behalf of Suresh/Surekha Kakodkar submitted that the First Appellate Court, in Regular Civil Appeal No. 88/2008, wrongly dismissed the said appeal merely because of the Judgment of the Additional District Judge in Regular Civil Appeal No. 21/2004, without discussing the merits of the impugned judgment of the Trial Court or without discussing the evidence produced in the said Regular Civil Suit No. 46/2008. He, therefore, urged that the impugned judgment in Regular Civil Appeal No. 88/2008 should be set aside and the matter should be remanded for fresh decision on merits.

23. Insofar as the Regular Civil Appeal No. 21/2004, is concerned, learned Counsel submitted that the First Appellate Court wrongly held that Suresh/Surekha Kakodkar had not denied the co-ownership of Karmalis and Prabhu Dessai over the suit property. He invited my attention to the written statement of Suresh/Surekha Kakodkar filed in the Regular Civil Suit No.211/2000 wherein the contents of paragraphs 1 and 2 of the plaint have been denied for want of knowledge. He submitted that the findings of the First Appellate Court that the issue no. 1, as framed by the Trial Court regarding the co-ownership of Karmalis and Prabhu Dessai, in respect of the suit property, did not arise, is totally erroneous. He submitted that the said suit filed by Karmalis and Prabhu Dessai was for declaration that Suresh/Surekha Kakodkar did not have right, title or interest to the suit property and for mandatory injunction and, therefore, the suit was based on title which had to be established by Karmalis anf Prabhu Dessai. He submitted that Karmalis and Prabhu Dessai failed to establish their title to the suit property. Learned Counsel contended that by virtue of the partition deed dated 20/05/1968, Shri Gurudas Pundalica Naique Cormoli and his wife had, inter alia, become owners of plot no. 6 admeasuring 540 square metres. He further submitted that Naguesh Shirodkar, who is admittedly the uncle of Suresh Kakodkar, is mundkar and, therefore, the defendants are also mundkars, as they are residing in the said house and that by sale deeds dated 08/09/2003 which are at Exhibit 90 Colly, the said Naguesh Shirodkar has purchased the total area of 540 square metres from the said Survey No. 143/1, from the heirs of said Gurudas Karmali and his wife. Learned Counsel further submitted that Karmalis and Prabhu Dessai had not established that the property described in the title documents produced by them corresponded with the suit property bearing survey no. 143/1. He also submitted that the Bhatkars of Suresh/Surekha Kakodkar were not made party to the suit. He, therefore, urged that both the substantial questions of law, framed in Second Appeal No. 3/2005 are bound to be answered in favour of Suresh/Surekha Kakodkar and ultimately, the impugned judgment passed by the First Appellate Court, in Regular Civil Appeal No. 21/2004 is liable to be set aside.

24. Learned Counsel, appearing on behalf of Suresh /Surekha Kakodkar, relied upon the following judgments :

(i) Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs & Others, [(2008) 4 SCC 594] : [2008(5) ALL MR 451 (S.C.)];

(ii) Nagar Palika, Jind vs. Jagat Singh, [(1995) 3 SCC 412];

(iii) Union of India & Others vs. Vasavi Co-op. Housing Society Ltd. & Others, [(2014) 1 Supreme 1] : [2014(2) ALL MR 415 (S.C.)];

(iv) Bachhaj Nahar vs. Nilima Mandal and Another, [(2008)17 SCC 491] : [2009 ALL SCR 1104];

(v) Gurunath Manohar Pavaskar & Others vs. Nagesh Siddappa Navalgund & Others, [(2007) 13 SCC 565] : [2008 ALL SCR 373];

(vi) Sri Thimmaiah vs. Shabira & Others, [(2008) 4 SCC 182] : [2008(2) ALL MR 790 (S.C)];

(vii) Bhavnagar Municipality vs. Union of India & Another, [(1989) 2 Scale 1218].

(viii) Dubaria vs. Har Prasad & Another, [(2009) 9 SCC 346] : [2010 ALL SCR 687];

(ix) Bondar Singh & Others vs. Nihal Singh & Others, [(2003)4 SCC 161];

(x) Ishwar Dass Jain (dead) through LRs. vs. Sohan Lal (dead) by LRs., [(2000)1 SCC 434];

(xi) Rattan Dev vs. Pasam Devi, [(2002)7 SCC 441];

(xii) Durga Das vs. The Collector & Others, [(1996)5 SCC 618];

(xiii) Santosh Hazari vs. Purushottam Tiwari (Dead) by LRs., [(2001)3 SCC 179] : [2014 ALL SCR (O.C.C.) 103];

25. I have perused the entire material on record, in both the appeals. I have also considered the submissions advanced by the learned Counsel for Suresh/Surekha Kakodkar and the judgments relied upon by him.

26. In paragraph 1 of the plaint, in Regular Civil Suit No. 211/2000, Karmalis and Prabhu Dessai had specifically averred that they are the co-owners in joint possession of the suit property bearing Survey No. 143/1 of village Kakora and had further described the suit property in detail in the said paragraph, by mentioning the names, the land registration nos. 16729 and 975 and matriz nos. 667 and 166. Even the boundaries were mentioned. All the said documents have been produced on record during the course of evidence. In paragraph 2 of the plaint, Karmalis and Prabhu Dessai stated that the names of the co-owners are shown in the occupant's column of Form No. III of Survey No. 143/1. Suresh/Surekha Prabhu Dessai, in their written statement, did not specifically deny that Karmalis and Prabhu Dessai were the co-owners and that their names were recorded in Form No. III of the Survey Records, in respect of the suit property. No doubt, the Form No III is only a draft but the entries therein were not alleged to be erroneous. No objections were filed against the said entries. As already stated above, Suresh/Surekha Kakodkar, in Regular Civil Suit No. 46/96 had alleged that Shri Vasudev Gopinath Naik Karmali was their Bhatkar. The name of this Vasudev Gopinath Naik Karmali is figuring in the said Form No. III of survey no. 143/1 along with the names of Vinayak Gopinath Naik Karmali, Anil Hari Prabhu Dessai, Sanjay Hari Prabhu Dessai, Purshottam Vithal Prabhu Dessai and Prakash Shankar Prabhu Dessai. Said Vasudev Gopinath Naik Karmali, who was alleged to be the Bhatkar of Suresh/Surekha Kakodkar never disputed the co-ownership of Karmalis and Prabhu Dessai. Suresh/Surekha Kakodkar merely denied paragraphs 1 and 2 of the plaint in Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3 of Order VIII of the Code Civil Procedure provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Rule 4 of Order VIII provides that where a defendant denies allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. The rule further says that if it is alleged that the defendant received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof or else set out how much he received and if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Then, rule 5(1) of Order VIII provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against the person under disability, provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. In view of the above provisions of C.P.C., the finding of the learned First Appellate Court, in Regular Civil Appeal No. 21/2004 that Suresh/Surekha Kakodkar had not challenged the co-ownership of Karmalis and Prabhu Dessai in respect of the suit property bearing Survey No. 143/1 of village Kakora, cannot be said to be erroneous. Besides the above, the names of Karmalis and Prabhu Dessai were figuring in Form No. III of survey No. 143/1. Therefore, it is a fact that the issue no. 1 as to whether the plaintiffs prove that they are co-owners of the property bearing Survey No. 143/1, as framed by the Trial Court, in Regular Civil Suit No. 211/2000, did not arise as it had to be deemed to be an admitted fact that the plaintiffs are co-owners of the suit property. Be that as it may, Karmalis and Prabhu Dessai had produced sufficient oral evidence on record to prove their co-ownership, in respect of survey no. 143/1.

27. In the plaint/written statement filed by Suresh/Surekha Kakodkar, respectively in both the suits, there is merely an averment to the effect that Suresh/Surekha Kakodkar had agreed to purchase the land adjacent to the mundkarial house, which is in their occupation and having total area of 540 square metres. In fact, in the pleadings, in both the suit, there is variance. In the plaint, in Regular Civil Suit No. 46/96, Suresh/Surekha Kakodkar pleaded that their Bhatkar, Shri Vasudev Gopinath Naik Karmali had agreed to sell the said plot to them, whereas in the written statement filed in Regular Civil Suit No. 211/2000, they pleaded that their Bhatkar, Shri Gurudas karmali had agreed to sell to them the said land. Nowhere in the pleadings in both the suits, it was pleaded that Suresh/Surekha Kaokdkar had purchased the said total area of 540 square metres and consequently, had become owners thereof. Admittedly, Suresh/Surekha Kakodkar did not produce on record any agreement for purchase of the land admeasuring 540 square metres, wherein the said mundkarial house is situated. It is true that Suresh/Surekha Kakodkar produced on record a document known as "INSTRUMENTO DE DIVISAO E ADJUDICACAO" which reveals that Gurudas Pundlik Naik Karmali and his wife were allotted, inter alia, plot no. 6 admeasuring 540 square metres. Said document, being of the year 1968, obviously does not mention survey number of the said plot. PW1, in Regular Civil Suit No. 211/2000, denied the suggestion that the said partition deed was in respect of survey no. 143/1. It is not proved that the said partition deed pertains to survey no. 143/1. There is one more survey no. 144/1 which also allegedly pertains to land registration no. 16729. Since survey number was not mentioned in the said partition deed, subsequently, a rectification deed was executed to show the survey number of the property which was partitioned. From the said deeds, it is clear that what has been partitioned is not the property bearing survey no. 143/1 but survey no. 144/1. There is ample evidence on record to prove that survey no. 143/1 is not partitioned amongst the co-owners. Since Suresh/Surekha Kakodkar failed to produce the agreement for sale executed by said Gurudas and his wife in their favour, it has to be held that Suresh/Surekha Kakodkar failed to prove that they had agreed to purchase the said land admeasuring 540 square metres from survey no. 143/1. Though learned Counsel for Suresh/Surekha Kakodkar contended that his clients have purchased the land admeasuring 540 square metres from survey no. 143/1, however, such sale deeds were not produced by Suresh/Surekha Kakodkar in Regular Civil Suit No. 46/1996. Thus, in the said Regular Civil Suit No. 46/1996, Suresh/Surekha Kakodkar had certainly failed to prove their ownership and possession over an area of 540 square metres of land from survey no. 143/1. In Regular Civil Suit No. 211/2000, Suresh/Surekha had produced two sale deeds dated 08/09/2003 which refer to sale of plots admeasuring 300 square metres and 240 square metres from survey no. 143/1 to Suresh/Surekha Kakodkar. The said sale deeds are at Exhibit 90-colly. However, these sale deeds were executed during the pendency of the suits and were simply tendered in evidence. There were no pleadings in the plaint/written statement filed by Suresh/Surekha Kakodkar in both the suits, respectively regarding the said sale deeds. There is no pleading at all that Suresh/Surekha had purchased the said land admeasuring 540 square metres. Hence, the said sale deeds cannot be looked into. In Regular Civil suit No. 211/2000, Suresh/Surekha had pleaded that they are owners by adverse possession. As rightly held by the learned First Appellate Court, in Regular Civil Appeal No. 21/2004, Suresh/Surekha Kakodkar did not produce any evidence to prove their claim of adverse possession with regard to the said land admeasuring 540 square metres. Even otherwise, the plea of adverse possession is destructive of the plea of mundkarship and vice versa. It should be kept in mind that the Trial Court, in Regular Civil Suit No. 211/2000, by judgment and decree dated 29/01/2004, held that Suresh/Surekha Kakodkar could not prove that they are owners of the suit property by adverse possession. The Trial Court further held that Suresh/Surekha Kakodkar could not prove that Gurudas Karmali had agreed to sell to them an area of 540 square metres, wherein their mundkarial house was situated. The learned First Appellate Court, in Regular Civil Appeal No.21/2004, has confirmed the said findings of the Trial Court. There are, therefore, concurrent findings of facts. At Exhibit 59-colly, in Regular Civil suit No.211/2000, there is sketch drawn by Municipal Council, showing the pathway leading to Ghadiwada road, which is used by public. The sketch shows the encroachment made by Suresh kakodkar on the said pathway. At Exhibit 60-colly, is the notice issued by the chief officer of Municipal Council directing Suresh Kakodkar to clear the pathway leading to the house of Pandurang Kakodkar. The existence of the said pathway and encroachment on the same done by Suresh Kakodkar was duly proved. There is no dispute that Suresh/Surekha Kakodkar have their house in the suit property bearing Survey No. 143/1. By order dated 03/06/1986, in Case No. MUND/344/78, only Shri Naguesh Bhikaji Shirodkar was declared as mundkar of Gurudas Karmali in respect of the dwelling house admeasuring only 117 square metres, situated in survey no. 143/1. Form No. XI also shows that the area of the house of Naguesh Shirodkar is 117 square metres. Suresh/Surekha Kakodkar were not declared as mundkars. Admittedly, purchase application filed by said Naguesh Shirodkar, Smt Girija Naguesh Shirodkar, Suresh Kakodkar and Smt Surekha Kakodkar, under Case No. MUND/PUR/4/2002, was dismissed by the Mamlatdar. Considering the said fact, the learned First Appellate Court, in Regular Civil Appeal No. 21/2004, has not given any relief to Karmalis and Prabhu Dessai, with regard to the house bearing Municipal Council No. 658 and in fact, has allowed Suresh/Surekha Kakodkar to use the said residential house and also the suit property for coming and going to the said residential house. Suresh/Surekha Kakodkar have been rightly directed to remove rubble stone piled fencing and to remove any plantation done by them in the suit property, as they could not establish their ownership right to the land admeasuring 540 square metres from the suit property.

28. Merely because in paragraph 17 of the written statement filed by Municipal Council, in Regular Civil Suit No. 46/1996, it was averred that the said pathway was outside the property of Suresh/Surekha Kakodkar, it does not mean that Suresh/Surekha were admitted to be owners in possession of 540 square metres of land from survey no. 143/1. In paragraph 10 of the written statement, the Municipal Council had pleaded that the said pathway was outside the house of Suresh/Surekha Kakodkar. As already stated earlier, Naguesh Bhikaji Shirodkar was declared as mundkar in respect of the dwelling house only admeasuring 117 square metres. Suresh/Surekha kakodkar could not prove that the fencing was erected by them was within the alleged mundkarial area.

29. (a)- In the case of "Anathula Sudhakar", [2008(5) ALL MR 451 (S.C.)] (supra), the Apex Court has referred to the principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction, as consequential relief. It has, however, been clarified that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises cloud on the title of plaintiff to the property. It is observed that a cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. Since, there was no specific denial of co-ownership of Karmalis and Prabhu Dessai with respect to survey no. 143/1, the question of they filing suit for declaration of their title to the said property did not arise.

(b)- In the case of "Nagar Palika, Jind" (supra), it has been held that where title and possession of respondent had always been disputed by the appellant from the stage of written statement, the suit could not have been decreed merely on the basis of entries in the revenue records. In the case of "Union of India & others", [2014(2) ALL MR 415 (S.C.)] (supra), it has been held that the burden to prove title lies on the party making the claim and relief cannot be ground of weakness of defendant's case. It has also been held that the entries in revenue records do not confer title. In the present cases, it is not only the entries in the revenue records which have been considered, but the evasive denials of Suresh/Surekha Kakodkar, in respect of co-ownership of Karmalis and Prabhu Dessai, and the documents of title in respect of the property and supporting oral evidence that has been considered.

(c)- In the case of "Bachhaj Nahar", [2009 ALL SCR 1104] (supra), it has been held that it is a fundamental rule that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. It is further held that only in exceptional cases can this general rule be deviated from, if the Court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties, being conscious of the issue, had led the evidence on such issue. In the case supra, the object and purpose of pleadings and issues has been stated. It has been held that the object and purpose of pleading of issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent the cases being expanded or grounds being shifted during trial. The object of issues is to identify from the pleadings, the question or points required to be decided by the Courts so as to enable the parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief.

(d)- In the case of "Gurunath Manohar Pavaskar and others", [2008 ALL SCR 373] (supra), it has been held that if a person disputes possession of another person over some property, burden of proving shall lie on him.

(e)- In the case of "Sri Thimmaiah", [2008(2) ALL MR 790 (S.C)] (supra), it has been held that in a suit for permanent injunction, the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. It has been held that the general proposition is well settled that the plaintiff, not in possession, is not entitled to the relief without claiming recovery of possession and that before an injunction can be granted, it has to be shown that the plaintiff was in possession.

(f)- In the case of "Bhavnagar Municipality" (supra), it has been held that in a suit for possession based on title to the suit property, where the defendants have denied the title of the plaintiff, it is necessary for the Court to give finding of title of the plaintiff, even if the defendants in possession had not pleaded adverse possession. As already discussed above, in the present matters, Suresh/Surekha Kakodkar had not specifically denied the title of Karmalis and Prabhu Dessai. Hence the above judgment cannot be of any assistance to Suresh/Surekha Kakodkar.

(g)- In the case of "Dubaria", [2010 ALL SCR 687] (supra), the Apex Court has held that the High Court was not justified in holding that second appeal was concluded by findings of fact without considering material and documentary evidence already on record and it was the duty of the High Court to consider record in respect of suit property. It has been held that in case of infirmity of excluding, ignoring and overlooking the abundant materials and evidence, which if considered in proper perspective would have led to a conclusion contrary to one taken by High Court and first appellate Court, it would be open to Apex Court to interfere with concurrent findings of fact arrived at by High Court and first appellate Court.

(h)- In the case of "Rattan Dev" (supra), it has observed that the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. It has been held that non-application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did arise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits. No doubt, it is true that the First Appellate Court, in Regular Civil Appeal No. 88/2008 dismissed the said appeal merely because of the Judgment of the Additional District Judge in Regular Civil Appeal No. 21/2004, without discussing the merits of the impugned judgment of the Trial Court or without discussing the evidence produced in the said Regular Civil Suit No. 46/2008. However, since now it is found that the judgment of the First Appellate Court, in Regular Civil Appeal No. 21/2004, is sustainable, the question of remanding the Regular Civil Appeal No. 88/2008, for fresh decision after consideration of all the material on record, will not serve any purpose.

30. None of the judgments discussed above and the others cited by the learned Counsel for Suresh/Surekha Kakodkar, though not discussed by me, render any assistance to them. The substantial questions of law as framed in both the appeals, therefore, get answered against Suresh/Surekha Kakodkar. In view of the above, the impugned judgments and orders passed by the learned First Appellate Court, in Regular Civil Appeal No. 21/2004 and in Regular Civil Appeal No. 88/2008, are in accordance with the settled principles of law. No interference with the same is warranted.

31. In the result, both the aforesaid appeals are dismissed. However, in the facts and circumstances of the case no order as to costs.

Appeals dismissed.