1 sa233.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.233/2001
1. Tukaram s/o Shiva Bahekar,
aged about 51 years, Occ. Agriculturist,
2. Tikaram s/o Shiva Bahekar,
aged about 46 years, Occ. Agriculturist,
3. Shriram s/o Shiva Bahekar,
aged about 40 years, Occ. Agriculturist.
4. Smt. Tulsabai wd/o Shiva Bahekar,
(Died on 19.12.1998)
All r/o Dongargaon, Tq. Saleksa,
Dist. Bhandara at present Gondia. ...APPELLANT
...V E R S U S...
1. Smt. Dwarkabai w/o Govind Muneshwar,
aged about 31 years, Occ. Household.
2. Smt. Janabai w/o Yashwantrao Gaidhane,
aged about 37 years, Occ. Household.
3. Govind s/o Sitaram Muneshwar,
aged about 40 years, Occ. Cultivator.
All r/o Dongargaon, Tq. Saleksa,
Dist. Bhandara at present Gondia. ...RESPONDENTS
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Mr. P. N. Sanjidwar, Advocate for appellant.
None for the respondents.
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2 sa233.01.odt
CORAM:- A. B. CHAUDHARI, J.
DATED :- 09.03.2016
J U D G M E N T
1. Being aggrieved by judgment and decree dated 16.01.2001 in Regular Civil Appeal No.36/1994 passed by Additional District Judge, Gondia by which the learned lower appellate Court reversed the judgment and decree dated 02.04.1994 in Regular Civil Suit No.44/1994 passed by Civil Judge Junior Division, Amgaon and dismissed the suit filed by the plaintiffs, the present appeal was filed by the unsuccessful plaintiffs.
FACTS:
2. In support of the appeal, learned counsel for the appellant submitted that the lower appellate Court committed error on facts as well as in law in reversing the well reasoned finding of fact recorded by the trial Judge that the suit property was allotted to the share of the deceased Shiva in partition and Dharma was occupying the same as a licensee and, therefore, the question of holding adverse possession did not arise. He then submitted that the respondents, on the contrary took the defence ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 3 sa233.01.odt that under Exh.-49, they purchased the property by unregistered sale deed for Rs.1,000/-. The sale deed was not admissible in evidence and was liable to be rejected outright in the light of Section 49 of the Registration Act. But the lower appellate Court utilised the same for collateral purposes. The affirmation or possession could only be collateral purpose and, therefore, the lower appellate Court committed error in law in dismissing the suit filed by the appellants-plaintiffs.
3. None appeared for the respondents. In supersession of the substantial questions of law framed at the time of admission, I frame the following substantial questions of law after hearing learned counsel for the parties.
(i) Whether the lower appellate Court committed perversity while reversing the finding of fact recorded by the learned trial Judge that Shiva got the suit property in partition for which there was voluminous evidence on record? ...Yes
(ii) Whether the unregistered sale deed Exh.-64 could be utilised by the lower appellate Court for the alleged collateral purpose for legalizing unlawful possession of the respondents on the suit property and whether Exh.-64 was admissible in evidence? ...No.
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(iii) Whether the finding recorded by the lower
appellate Court that the respondents proved adverse possession is clearly perverse? ...Yes.
(iv) What order? ...As per final order.
4. I have heard learned counsel for the appellant at length. I have perused the entire record as well as evidence. I have seen the reasons recorded by both the Courts below. None appears for the respondents, though served.
CONSIDERATION:
5. The learned trial Judge discussed the threadbare evidence regarding partition and on the basis of the oral as well as documentary evidence on record, came to the correct conclusion that Shiva got the property in partition in lieu of he sacrificing more agricultural land in favour of his brother Bhiva. Instead of discussing the facts and evidence, I quote paragraph 8, 10, 11 and 16 of the judgment of the lower appellate Court, which read thus:
"8. In this case the plaintiffs have examined four witnesses and defendants have also examined four witnesses, in support of their respective claim. According to P.W.1 Tukaram Bahekar who is a son of Shiva, there was partition in-between his father Shiva and uncle Bhiva, in ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 5 sa233.01.odt the said partition Bhiva got 4 acres of land whereas Shiva got 3.68 acres of land. It is his further evidence that since Shiva got 0.32 acres of land more than Shiva in view of which the total residential house was given into the share of Shiva and at that time Bhiva constructed a new house and started residing therein.
9. .....
10. It is true that partition was not reduced into writing however it has taken place about 20 years back as evident from the version of plaintiff and this witness. It is surprising enough that the above evidence of plaintiff p.w.1 has not been challenged by the defendants at the time of cross-examination of p.w.1. There is also no suggestion to this witness that there was no partition or the whole house was not given into the share of Shiva and in view of this fact I have hesitation to accept the above version of p.w.1.
11. The version of p.w.1 has been supported by his witness Ramkishor, Kabirdas and Sashrath Shivankar. According to p.w.2 Ramkishor Agrawal that in the year 1966 there was a meeting in the Gram Panchayat in respect of the suit house and the agricultural property. The suit house was originally belongs to Shiva and Shiva, in the meeting it was settled that since Bhiva got 31 decimals of more land in his share the whole suit house would go to the share of Shiva. And at that time Bhiva constructed his own house and started residing therein. It is his further evidence that after Bhiva left the said house he became a tenant of the said Shiva by paying Rs.5/- p.m. as rent. He ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 6 sa233.01.odt was a tenant of Shiva in the suit premises for about 2/3 years and thereafter the defendants being the relatives of Shiva were residing therein. According to his witness Panchayat Puranchandra Doye, Moghsham Doye and Kabirdas Brahmankar were present. During search of his cross-examination this witness emphasis that main talk in the meeting was that since Bhiva had received 32 decimals of land more in partition he should give entire house to Shiva, when he (p.w.2) vacated the premises he delivered possession of the suit premises to Shiva.
12. to 15. .....
16. The fact that the land admeasuring about 4 acres was fallen into the share of Bhiva and land admeasuring 3.68 acres was fallen into the share of Shiva is an admitted fact. The documents placed on record vide exh-30 and 31 make this position clear. The argument advanced by Mr.Patel that since about 32 decimals of more land was given to Bhiva it can very well be inferred that share of Bhiva in the house property must have been given to Shiva and secondly, the circumstances which remained unchallenged rather admitted that after partition Bhiva constructed a new house and started residing therein, clearly in for that Bhiva must have been relinquished his right over the suit house and certainly it must have given to Shiva. I find some force in the contention of Mr. Patel for the reasons that his argument is coupled with the evidence adduced by p.w.2 to 4."::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 :::
7 sa233.01.odt As against this, the findings recorded by the learned lower appellate Court are cryptic and not in accordance with the preponderance of probabilities. The finding recorded by the learned lower appellate Court went on the presumption that there cannot be a partition of agricultural land or house properties and that whenever there is partition, it must be complete between both the parties and properties. I think, in law, the view taken by the lower appellate Court is wrong. There could be partial partition from time to time and, therefore, the learned trial Court went by oral evidence regarding partition, corroborated by documentary evidence as discussed by him above in the aforesaid paragraphs. I, therefore, hold that the lower appellate Court recorded a perverse finding in that behalf and the discussion made by the trial Judge on this point is based on evidence and the lower appellate Court should not have interfered with the said finding of fact. Hence, I answer the question no.1 in the affirmative.
6. Now, for deciding question no.2, it would be convenient to reproduce the following observations from the discussions made by the trial Judge in paragraphs 20, 21, 22 and 24 of the judgment.
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 :::8 sa233.01.odt "20. ....A document dated 6.2.66 has been placed by defendants, claiming to be a sale deed of the suit house alleged to have executed by Parashram and Sitaram in favour of Dharma vide exh.64. It is his further evidence that Vithoba Bhandarkar, Satuji Humey and Vithoba Shivankar were present at the time of writing transaction was made for consideration of Rs.1,000/-.
21. The total evidence of p.w.2 Parashram has been challenged by the plaintiffs he has denied the area of Budha's house as 9 decimals. However, I find no substance in his denial for the reasons that documentary proof at Exh-32 of a mutation entry shows the total area of the land wherein suit house and the portion in occupation of Shiva i.e. plaintiffs is shown 9 decimals as well as the document at exh-33 and 60 (7/12 extract) also shows the area of total house property as 9 decimals.
22. He has admitted during cross-examination that Bhiva had two sons and two daughters then Sakhubai and Kakhubai they are still alive, First of all, it needs to be pointed out that theso called sale deed at exh-64 there is no signature of the legal heirs of Bhiva and it appears only to have been executed only by sons of Bhiva. Secondly, the so- called document at exh-64 is an unregistered document and is writer only on one Rs. Stamp paper. The defendant stand is totally based upon the said document which itself hit by the provisions of sec.17 and 49 of the Registration Act 1908 which requires its registration and thirdly, it is ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 9 sa233.01.odt not executed by all the legal heirs of Bhiva even if, it is presumed that Bhiva was exclusive owner of the said suit house. Hence the contention of Mr. Patel that on unregistered document title does not pass to Dharma has got some merits. Apart from the above observations according to p.w.2 Parashram he does not know whether Budha was 7.69 acres of agricultural land. He does not know how much land was fallen in share of father Bhiva, partition had taken place between his father and Shiva but not in his premises. He has admitted that after partition his father Bhiva constructed another house and since partition of agricultural land and house property they are residing separate. It is also admitted by him that there was Gram Panchayat office for about five years. Thus above admission itself support the plaintiffs contention that house property was fallen into the share of Shiva in lieu of 32 decimals of excess land fallen into the share of Bhiva.
24. .....Apart from the above facts the evidence adduced by the defendants is itself contradictory one because document at exh-64 on which the defendants are claiming their title which itself is not legal one contradict heir own evidence. First of all, the alleged document appears to have been executed on 6.2.66 whereas signature of vendor Parashram and Sitaram appears to be on 5.2.66. The consideration is started to be of 1,000/- whereas in the Ferfar Panji Exh-32 mutation entry on its minutely perusing appears that it was purchased on 10.1.66 for consideration of Rs.250/- I do not understand as to why ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 10 sa233.01.odt the defendatns have not brought the evidence on which the said entry was made in Ferfar Panji at exh-32, on record of this case. It thus amounts to suppress of the fact and certainly it can very well be inferred that the so called document at exh-64 which appears to have been executed after about a month of the earlier receipt got with an ulterior motive."
7. From perusal of the above discussion and facts by the trial Judge, it is clear that the sale deed Exh.-64 was not a registered document and was, therefore, clearly not admissible in evidence because its value was more than Rs.100/-. The sale deed, therefore, required outright rejection from consideration as evidence. The lower appellate Court, however, utilized it in the name of collateral purpose but there cannot be any collateral purpose conferring ownership on the respondents and legalize the illegal possession. When the appellants-plaintiffs were the owners, they inherited their father's property, they are required to be in possession of the same and cannot be deprived of the property on the basis of sale deed Exh.-64, which was an unregistered document. That is all the more so because the document appears to have been executed after about one month of the earlier receipt got with an ulterior motive. The lower appellate Court clearly ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:18:16 ::: 11 sa233.01.odt committed error in depriving the appellants of their property by giving benefit of collateral purpose in favour of the respondents-
defendants which is wholly impermissible in law on the basis of fake document Exh.-64. Hence, the question no.2 is answered in the negative.
8. Now, turning to the question no.3, the respondents claimed that they were the owners under Exh.-64 and never stated that the appellants-plaintiffs were owners of the suit property and they were in occupation of the property under any hostile possession. In the present case by Exh.-64, the respondents claimed ownership to themselves and they were occupying it as permissive possession being the close relative and not by way of adverse possession. I have checked up the pleadings and evidence and I find that there is no even iota of pleadings and evidence for claiming adverse possession anywhere. Merely having long possession does not constitute adverse possession. Hence, this question no.3 will have to be answered in the affirmative.
9. In the result, the appeal must succeed. Hence, following order is passed.
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ORDER
(i) Second Appeal No.233/2001 is allowed.
(ii) Judgment and decree dated 16.01.2001 in
Regular Civil Appeal No.36/1994 passed by Additional District Judge, Gondia is set aside.
(iii) Judgment and decree dated 02.04.1994 in Regular Civil Suit No.44/1994 passed by Civil Judge Junior Division, Amgaon is restored.
No order as to costs.
ig JUDGE
kahale
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