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PETITIONER: JAGANNATH KASHINATH PATIL

       Vs.

RESPONDENT: NARAYAN BALUGAIKAR

DATE OF JUDGMENT:       24/09/1996

BENCH: K. RAMASWAMY, K. VENKATASWAMI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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.      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  & 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.      It was not disputed during the cross-examination of the witnesses  that   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  concluded  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  establish 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 plaintiff/respondent having been found as a successor to the property  from   his  maternal   grand-mother  and   was  in possession  of  the  property  delivered  by  Pukharaj,  the

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mortgagee,  succession   to  the   estate  of   grand-mother furnished him  the title  to the  property and  delivery  of possession to  him by  the mortgagee  reinforces his  lawful title  to   and  legal   possession  of  the  property.  The respondent is  entitled  to  have  the  possession  retained without any  interference as  sought for  and the injunction granted by the trial Court is correct in law. The High Court rightly allowed the second appeal. The appellant is directed to remove  the  offending  structure  put  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.