8.SA.676.2019.doc Amberkar IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 676 OF 2019 Laxman Dinkar Shitole (since deceased) through Legal Heirs Anil L. Shitole (since deceased) through Legal Heirs Sunil Laxman Shitole & Ors. .. Appellants (Org. Plaintiffs) Versus Vijay Dnyanoba Kadam & Ors. .. Respondents (Org. Defendants) ……..........  Mr. Ravindra Sonba Pachundkar, Advocate for Appellants  Ms. Vidhi Punmiya a/w Mr. Sanket Borra i/by Ms. Ankita Bamboli, Advocates for Respondent No. 1  Ms. Seema S. Dighe i/by Mr. Priyal G. Sarda, Advocates for Respondent Nos. 2-D(1) to 2-D(3) …….......... CORAM : MILIND N. JADHAV, J. DATE : FEBRUARY 12, 2026. P.C.: 1. Heard Mr. Pachundkar, learned Advocate for Appellants; Ms. Punmiya, learned Advocate for Respondent No.1 and Ms. Dighe, learned Advocate for Respondent Nos.2-D(1) and 2-D(3). 2. Second Appeal is admitted on 31.01.2023 on the following questions of law:- "(i) Whether the learned Trial Court as well the learned First Appellate Court completely ignored the prayer of the Plaintiffs that he be declared as owner of the suit property described in paragraph 1(b) ? (ii) Whether the learned Trial Court and the learned First Appellate Court completely ignored the prayer of the 1 of 16 8.SA.676.2019.doc Plaintiffs that the registered sale deed dated 9th February 1999 be declared as sham and bogus and not binding on the Plaintiffs? (iii) Whether the decision of the learned Trial Court and of the learned First Appellate Court and the various findings recorded by them are in accordance with the evidence on record? 3. The present Second Appeal challenges the judgment and decree dated 11.03.2019 passed by District Judge – 5, Pune in Regular Civil Appeal No.251 of 2012 which dismissed the Appeal and in turn confirmed and upheld judgment and decree dated 24.01.2011 passed by 2nd Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.125 of 2001. Impugned judgment and decree is appended at page No.12 of the Second Appeal. Parties are referred to as “Plaintiffs” and “Defendants” for convenience. Plaintiffs are Appellants in Second Appeal. There are two concurrent judgments of the Trial Court under challenge. 4. It is the case of Plaintiffs that Plaintiff No.1 purchased land admeasuring 3R out of Survey No.5, Hissa No. 2A/1 of Mouje Pimpale Gurav, Taluka Haveli, District Pune, bearing New Survey No.5/2A/6 (hereinafter referred to as the “suit property”), by way of a registered Sale Deed dated 18.06.1987 executed by Defendant No.2. Pursuant thereto, Plaintiffs claim to have been put in possession of the suit property and have become absolute owners thereof. The suit property was accordingly recorded in the records of the Pimpri Chinchwad 2 of 16 8.SA.676.2019.doc Municipal Corporation (for short “PCMC”). It is the case of Plaintiffs that they were in peaceful possession of the suit property and had constructed a structure admeasuring approximately 1316 sq. ft. on 2R portion of the suit property (hereinafter referred to as the “constructed area”) 5. It is the case of Plaintiffs that on 08.06.2000, Defendant No.1 obstructed Plaintiffs from carrying out wire fencing over the suit property. Consequently, Plaintiffs instituted Regular Civil Suit No. 109 of 2000 before the Court of Civil Judge, Junior Division at Pimpri, seeking injunctive reliefs against Defendants. 6. It is further the case of Plaintiffs that during pendency of the said Suit, on 23.06.2000, Defendant No.1 took forcible possession of the constructed area from Plaintiffs. 7. Plaintiffs thereafter filed Application for withdrawal of said Suit on account of jurisdictional issues and/or improper valuation, which came to be allowed by order dated 21.12.2000. Pursuant thereto, Plaintiffs instituted a fresh Suit seeking reliefs of declaration, injunction and possession. 8. It is case of Plaintiffs that despite Plaintiffs’ Sale Deed of 1987 being in place, Defendant No.2 on 09.02.1999 executed a Sale Deed in favour of Defendant No.1 which was then registered before the Sub-Registrar Office at Pimpri. It is Plaintiffs’ case that the 3 of 16 8.SA.676.2019.doc subsequent Sale Deed of Defendant No.1 is bogus and does not create any right, title or interest or possession in favour of Defendant No.1 who is a subsequent purchaser. In the interregnum, Defendant No.2 expired and his legal heirs were brought on record, however despite Suit summons being served and due to absence of some of the legal heirs, the Suit proceeded ex-parte against them. Further Defendant Nos. 2(d)(1) and 2(d)(3) appeared in the Court, they did not file their written statement, hence the Suit proceeded without their written statement being taken on record. 9. By judgment and order dated 24.01.2011, learned Trial Court dismissed the Suit holding that Plaintiffs failed to comply with the provisions of Order VII Rule 3 of the Civil Procedure Code, 1908 (for short ‘CPC’) wherein the Suit plaint did not contain correct and adequate description of the Suit property so as to identify the same. On 12.04.2012, Plaintiffs filed First Appeal No.251 of 2012 in the Court of learned District Judge, Pune assailing the judgment dated 24.01.2011 passed by the Trial Court. 10. By order dated 11.03.2019, the Appellate Court dismissed the First Appeal filed by Plaintiffs and in turn confirmed and upheld the judgment and order dated 24.01.2011 passed by the Trial Court. 11. Hence, being aggrieved by the said judgment and order passed by the First Appellate Court, Plaintiffs have filed the present 4 of 16 8.SA.676.2019.doc Second Appeal. 12. Mr. Pachundkar, learned Advocate for Appellants - Plaintiffs would submit that the impugned Judgment and Decree passed by the Courts below are contrary to law, equity and the settled principles governing adjudication of civil disputes and have therefore resulted in grave miscarriage of justice warranting interference under Section 100 of the CPC. He would submit that both the Courts below have committed an error apparent on the face of the record in dismissing the suit solely on technical grounds under Order VII Rule 3 of the CPC without appreciating the substantive rights of Plaintiffs arising out of a registered Sale Deed dated 18.06.1987. 12.1. He would submit that Plaintiffs have duly proved their ownership over land admeasuring 3R out of Survey No. 5, Hissa No. 2A/1 (now Survey No. 5/2A/6) by producing cogent documentary evidence including the registered Sale Deed, Mutation Entry and 7/12 extracts in accordance with Sections 101 to 104 and 110 of the Indian Evidence Act, 1872. He would submit that the revenue records, mutation entries and municipal documents including property tax receipts, assessment notice and tax bills conclusively establish possession and enjoyment of the suit property by Plaintiffs which have been completely overlooked by the Courts below. 5 of 16 8.SA.676.2019.doc 12.2. He would submit that the Courts below have failed to appreciate that Plaintiffs have constructed a house on the Suit property which is assessed to municipal taxes and even subjected to penalty for non-agricultural use by the Collector, thereby evidencing settled possession. He would submit that the finding of the Trial Court that Plaintiffs failed to comply with Order VII Rule 3 CPC is perverse and unsustainable, as the description of the larger property i.e. “suit property” (3R land) is clearly identifiable and matches with the Sale Deed and revenue records. 12.3. He would submit that the Courts below have erred in holding that absence of a sketch map or minor discrepancies in boundary description would be fatal to the Suit particularly when the identity of the Suit property could be ascertained from documentary evidence on record. He would submit that the approach of the Courts below is hyper-technical and contrary to settled law that procedural requirements ought not to defeat substantive rights, especially when title is proved by registered documents. He would submit that the Courts below have failed to consider that Defendant No.2 had already sold 3R land to Plaintiffs in the year 1987 and hence he had no subsisting right to execute subsequent Sale Deed dated 04.02.1999 in favour of Defendant No.1 in respect of the same property. 6 of 16 8.SA.676.2019.doc 12.4. He would submit that therefore the burden shifted on Defendant No.1 to establish that the land purchased by him was distinct from Plaintiffs’ land, which has not been discharged by him in accordance with Sections 102 to 104 of the Indian Evidence Act, 1872. He would submit that both subordinate Courts have erroneously held that Plaintiffs failed to prove that the property purchased by Defendant No.1 formed part of Plaintiffs’ 3R land, without considering the surrounding circumstances, layout and boundary inconsistencies. He would submit that the evidence on record clearly demonstrates inconsistencies and discrepancies in the boundaries described in the Sale Deed of Defendant No.1 including interchange of northern and southern boundaries and incorrect depiction of adjoining owners, thereby rendering the said subsequent Sale Deed doubtful. He would submit that the common western boundary of both Plaintiffs and Defendant No.1 being the same clearly indicates overlapping of properties, which has not been properly appreciated by the Courts below. 12.5. He would submit that the layout and measurement inconsistencies, including the existence of a common road and variation in plot dimensions, clearly establish that Defendant No.1 is in possession of land in excess of what was conveyed under his Sale Deed. He would submit that the Courts below have failed to appreciate that Plaintiffs’ case was one of dispossession from a specific 7 of 16 8.SA.676.2019.doc “constructed area” (2R out of 3R land) and therefore strict mathematical precision in boundary description was not required when possession and title were otherwise established. 12.6. He would submit that the finding of the Courts below that forcible dispossession is “hard to accept” is perverse and based on conjectures, inasmuch as no adverse inference could have been drawn merely due to absence of police complaint. He would submit that the Courts below have failed to consider that Plaintiffs had earlier filed a Suit for injunction, which was withdrawn with liberty to file a fresh Suit and the present Suit is a continuation of their lawful claim. 12.7. He would submit that the finding regarding non-payment of costs in judgment passed by the First Appellate Court is irrelevant and cannot be a ground to non-suit Plaintiffs in the present proceedings. He would submit that Plaintiffs have established a clear chain of title and possession whereas Defendant No.1 has failed to establish lawful possession beyond the extent of land legally purchased by him. He would submit that the concurrent findings recorded by the Courts below are perverse, contrary to the evidence on record and suffer from non-consideration of material evidence thereby giving rise to substantial questions of law. He would submit that the impugned Judgment and Decree are illegal, inequitable and liable to be set aside in the interest of justice. 8 of 16 8.SA.676.2019.doc 13. PER CONTRA, Ms. Punamiya, learned Advocate for Respondent No.1 would submit that the present Second Appeal is devoid of merit and does not give rise to any substantial question of law as required under Section 100 of the CPC. She would submit that the scope of interference in a Second Appeal is extremely limited and does not permit re-appreciation of evidence or disturbance of concurrent findings of fact recorded by both the Courts below which is attempted to be done by the Appellants. She would submit that both the Trial Court and the First Appellate Court have concurrently dismissed the Suit and First Appeal of Plaintiffs after proper appreciation of pleadings and evidence and therefore no interference is warranted. 13.1. She would submit that the Courts below have rightly dismissed the suit on the ground of non-compliance with Order VII Rule 3 of the CPC as Plaintiffs failed to provide a clear and identifiable description of the suit property. She would submit that in the absence of proper boundaries, measurements and identification particulars, no executable decree could ever have been passed. She would submit that the burden of proving title, identity and possession squarely lie upon Plaintiffs under Sections 101 to 104 of the Indian Evidence Act, 1872, which has not been discharged by Plaintiffs. She would submit that mere production of documents such as Sale Deed, mutation entries or tax receipts without proper identification of the area, dimensions and 9 of 16 8.SA.676.2019.doc location of the Suit property without its boundaries is insufficient to establish ownership or possession. 13.2. She would submit that Plaintiffs have failed to prove that the property purchased by Defendant No.1 under the Sale Deed dated 09.02.1999 overlaps with or forms part of Plaintiffs’ land. She would submit that no cogent evidence, survey report or reliable map has been produced by Plaintiffs to substantiate the allegations of encroachment or dispossession. She would submit that the allegations of forcible dispossession are unsubstantiated and have rightly been disbelieved and rejected by both the Subordinate Courts in the absence of contemporaneous evidence. She would submit that minor discrepancies in boundary descriptions of Defendant No.1’s Sale Deed do not invalidate the same, nor do they support Plaintiffs’ case which itself suffers from fundamental defects. 13.3. She would submit that Plaintiffs are attempting to reopen pure questions of fact under the guise of a Second Appeal, which is impermissible in law. She would submit that no substantial question of law arises for consideration and the concurrent findings recorded by both the Courts below are legal, valid and based on proper appreciation of evidence. She would therefore submit that the present Second Appeal is devoid of merits and is liable to be dismissed with costs. 10 of 16 8.SA.676.2019.doc 14. Ms, Dighe, learned Advocate for Defendant Nos.2-D(1) and 2-D(3) would submit that the present Second Appeal is devoid of merit and does not give rise to any substantial question of law within the meaning of Section 100 of the CPC. She would submit that both the Trial Court and the First Appellate Court have concurrently dismissed the Suit upon due appreciation of pleadings and evidence on record. She would submit that such concurrent findings of fact are binding and cannot be interfered with unless shown to be perverse or contrary to settled legal principles, which the Appellants have failed to demonstrate. She would submit that the present Second Appeal is merely an attempt to seek re-appreciation of evidence, which is impermissible in the limited jurisdiction of this Court. 14.1. She would submit that the Plaintiffs have failed to discharge the burden of proving the identity, title and possession of the Suit property as required under Sections 101 to 104 of the Indian Evidence Act, 1872. She would submit that the Courts below have rightly held that there is non-compliance with Order VII Rule 3 of the CPC, inasmuch as the Suit Plaint does not contain a clear and identifiable description of the Suit property with precise boundaries and measurements. She would submit that mere production of a Sale Deed, mutation entries or revenue records, without proper correlation to a specifically identifiable property, is insufficient to grant relief. She would submit that in absence of proper identification, no executable 11 of 16 8.SA.676.2019.doc decree for declaration or possession could have been passed, and therefore the dismissal of the Suit is legally justified. 14.2. She would submit that the present Respondents, being legal heirs of original Defendant No.2, stand on a distinct footing and have no direct or substantive role in the dispute relating to alleged possession or dispossession between the Plaintiffs and Defendant No.1. She would submit that no specific or substantive relief has been claimed against these Respondents, nor are there any pleadings alleging fraud, misrepresentation or collusion on their part. She would submit that even otherwise, the Plaintiffs are required to succeed on the strength of their own case, irrespective of the defence, and having failed to establish the same, no liability can be fastened upon these Respondents. She would submit that the continuation of the present Appeal against Respondent Nos.2(d)(1) and 2(d)(3) is therefore misconceived and unwarranted, and the same deserves to be dismissed with costs insofar as these Respondents are concerned. 15. I have heard Mr. Pachundkar, learned Advocate for Appellants; Ms. Punmiya, learned Advocate for Respondent No.1 and Ms. Dighe, learned Advocate for Respondent Nos.2-D(1) and 2-D(3) and perused the record of the case. Submissions made by the learned Advocates at the bar have received due consideration of the Court. 12 of 16 8.SA.676.2019.doc 16. After reading the twin judgments, I am of the opinion that both the Trial Court as well as the First Appellate Court have concurrently recorded findings after detailed appreciation of oral and documentary evidence on record. It is seen that such concurrent findings cannot be interfered with unless the same are demonstrated to be perverse, based on no evidence, or suffering from non-consideration of material evidence, which is not established in the present case. 17. The principal issue in the present case pertains to identification of the Suit property and entitlement of Plaintiffs to reliefs of declaration, injunction and possession. It is seen that the Trial Court has dismissed the Suit on the ground of non-compliance with Order VII Rule 3 of the CPC and the said finding has been affirmed by the First Appellate Court. When the Suit Plaint is seen, it does not contain a clear, specific and identifiable description of the Suit property with precise boundaries and measurements so as to enable the Court to pass an executable decree. It is pertinent to note that in cases relating to immovable property, proper identification of the suit property is a sine qua non for grant of relief and failure to comply with the same goes to the root of the matter. 18. It is further seen that though Plaintiffs have relied upon a registered Sale Deed dated 18.06.1987, mutation entries and revenue records, they have failed to correlate the said documents with a clearly 13 of 16 8.SA.676.2019.doc identifiable portion of land on the ground. Neither they have been able to prove the same in evidence. This Court finds that mere production of title documents, in absence of cogent evidence establishing the exact location, boundaries and extent of the Suit property, is insufficient to prove title and possession. It is seen that the Plaintiffs have not produced any survey map, measurement report or expert evidence to prove and substantiate the identity of the suit property or to demonstrate the alleged encroachment by Defendant No.1. 19. The submission on behalf of the Plaintiffs that there are minor discrepancies in boundary description and they ought to be ignored cannot be accepted in the facts of the present case. It is clarified that these deficiencies in the Suit Plaint are not minor or technical in nature, but go to the core issue of identification of the suit property and the encroachment by Defendant No. 1 and in the absence of a definite and ascertainable description, the Court cannot grant a decree which is vague or incapable of execution. 20. It is seen that the Plaintiffs have also failed to establish their possession over the alleged “constructed area” or their dispossession therefrom on 23.06.2000. This Court finds that the allegation of forcible dispossession is not supported by any cogent or contemporaneous evidence such as police complaint, independent witness testimony or documentary corroboration. It is seen that the 14 of 16 8.SA.676.2019.doc Courts below have rightly disbelieved the said allegation on appreciation of evidence and the said finding also does not warrant any interference. 21. It is seen that Plaintiffs have failed to establish that the property purchased / held by Defendant No.1 under Sale Deed dated 09.02.1999 overlaps with or forms part of their Suit property allegedly purchased by the Plaintiffs. It is further seen that no reliable evidence has been produced to demonstrate such overlap or encroachment. This Court further finds that the burden of proving such overlap squarely lied upon the Plaintiffs, which has not been discharged. 22. This Court finds that the submissions advanced on behalf of the Plaintiffs essentially seek re-appreciation of evidence and re- evaluation of factual findings recorded by the Courts below. This Court finds that such an exercise is impermissible in Second Appeal jurisdiction unless the findings are shown to be perverse or based on no evidence, which is not the case herein. It is seen that Defendant Nos. 2(d)(1) and 2(d)(3), being legal heirs of original Defendant No.2, stand on a distinct footing and no specific relief has been claimed against them. Also there are no pleadings or evidence alleging fraud, misrepresentation or collusion on their part in relation to the transactions in question. The dispute essentially pertains to competing claims between the Plaintiffs and Defendant No.1 which are 15 of 16 8.SA.676.2019.doc completely fact based and no independent cause of action is made out against the Defendants. 22.1. In view of the aforesaid observations and findings, I am of the considered opinion that the concurrent judgments and decrees passed by the Trial Court dated 24.01.2011 and the First Appellate Court dated 11.03.2019 are well-reasoned, based on proper appreciation of evidence and in accordance with well settled principles of law. I am of the opinion that no substantial question of law arises for consideration in the present Second Appeal and therefore no interference is warranted. Accordingly, first two questions of law framed by Court in the admission order dated 31.01.2023 are answered in the negative and third question of law is answered in the affirmative. 23. In view of the above circumstances and findings, Second Appeal is dismissed and the impugned order dated 11.03.2019 is upheld and confirmed. 24. Resultantly, Second Appeal is dismissed. 25. Request for extension of interim relief made by Mr. Pachundkar, learned Advocate for Appellants stands rejected. [ MILIND N. JADHAV, J. ] 16 of 16 RAVINDRA MOHAN AMBERKAR Digitally signed by RAVINDRA MOHAN AMBERKAR Date: 2026.05.13 13:33:07 +0530