JAGANNATH KASHINATH PATIL Vs. NARAYAN BALUGAIKAR

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Single Judge of the Bombay High court made on 30/1/1979 in Second Appeal No. 553 of 1971.

(2.) The admitted facts are that the respondent filed suit against the appellant for removal of construction and to restrain him from interfering with his possession and enjoyment of land admeasuring 50' x 30' marked by letters "a, B,c and D" in the sketch (Exh. 44 claiming title to the said plot. The trial court decreed the suit; on appeal it was reversed. In the second appeal, the High court set aside the decree of the appellate court and confirmed the decree of the trial court. Thus, this appeal by special leave.

(3.) It was not disputed during the cross-examination of the witnesses that the property originally belongs to Rukmanibai, the maternal grandmother 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 concluded that the respondent-plaintiff has succeeded to the estate of his grandmotherand possession was given to him by the mortgagee and he 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 establish title of the respondent and on that premise set aside the judgment and decree of the trial court.