Judgment
Second Appeal No.380 of 2004
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.380 OF 2004
1) Ishwarsing S/o Lalchandsing
Balode, aged major, occupation
Agriculturist.
2) Kishorsing S/o Lalchandsing
Balode, aged major, occupation
Agriculturist.
3) Bharatsing S/o Lalchandsing
Balode, aged major, Occupation
Agriculturist, dead, thr LRs
3)(i) Sau. Kamlabai Bhagatsingh Balode,
Aged 60 years, Occupation housewife.
3(ii) Govindsingh Bhagatsingh Balode
Aged 40 years, Occupation contractor.
3(iii) Anandsingh Bhagatsingh Balode,
Aged 35 years, Occupation Nagar Sewak.
All 3(i) to 3(iii) are R/o Hingna Road,
Balode Layout, Tahsil and
District Akola - 444 004 (Mah.).
3(iv) Sau. Sunita w/o Anand Ghodele,
Aged about Major,
Occupation Nagar Sewika,
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Judgment
Second Appeal No.380 of 2004
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R/o C/o Anand Ghodele, Nagar Sewak,
Padampura, Aurangabad.
4) Kapursing S/o Lalchandsing
Balode, aged major, Occupation
agriculturist.
5) Gopalsingh S/o Lalchandsing Balode,
Aged major, occupation agriculturist.
LRs of appellant No.5
5(i) Smt. Sunita Gopalsingh Balode,
Aged about 45 years,
Occupation housewife.
5(ii) Priti Gopalsingh Balode,
Aged about 28 years,
Occupation private service.
5(iii) Prayank Gopalsingh Balode,
Aged about 22 years,
Occupation education.
All R/o Balode Layout, Hingna
Road, Kaulkhed, Akola, Tahsil
and District Akola. ..... Appellants.
:: VERSUS ::
1. Shantabai Shriram Badere, (Dead)
Aged about 71 years, Occupation
Household work.
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Judgment
Second Appeal No.380 of 2004
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Through LRs
1(a) Baiju Shriram Badere
Aged about 45 years.
1(b) Mohan Shriram Badere
Aged about 40 years.
1(c) Smt. Sangita Anil Badere,
Aged Major.
1(d) Nitin Anil Badere
Aged about 20 years.
1(e) Roshan @ Sunny Anil Badere,
Aged about 15 years, minor
thorugh Natural guardian mother
Smt. Sangita Anil Badere
all Residents of Hingna Road,
Kaulkhed, Post Gandhinagar,
Tahsil & District Akola.
1(f) Smt. Kiran Pandurangji Pardesi,
Aged Major, resident of
Dhankawadi, Last Bus Stop, Near
Jai Bhavani Industries,
Pune-411 043.
2. Sau. Vandana Sainath Jadhav
Aged about 30 years, occupation
house work.
Both R/o Hingna Road,
Kaulkhed, Akola, Tahsil
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Judgment
Second Appeal No.380 of 2004
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and District Akola. ..... Respondents.
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Shri A.A. Naik, Counsel for Appellant Nos.1, 2, 4, & 5(i to III). Shri H.R. Gadhia, Counsel for Appellant Nos.3(i) to 3(iii). Shri J.B. Gandhi, Counsel for LRs of Respondent No.1.
============================================== CORAM : A.B. CHAUDHARI. J.
DATED : MARCH 15, 2016.
ORAL JUDGMENT
1. Being aggrieved by the judgment and decree dated 17.3.2003 passed by learned 3rd Joint Civil Judge Junior Division, Akola, in Regular Civil Suit No.620 of 1999, confirmed in appeal on 17.6.2004 by learned 2nd Ad-hoc Additional District Judge, Akola, in Regular Civil Appeal No.135 of 2003 the present second appeal was filed by the unsuccessful plaintiff.
2. On 7.12.2006, this Court has, at the time of admission of the second appeal, framed the following substantial question of law :
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::: Uploaded on - 19/03/2016 ::: Downloaded on - 31/07/2016 09:05:05 :::Judgment Second Appeal No.380 of 2004 5 Whether the lower Appellate Court was legally justified in holding that defendant No.1 has become owner by adverse possession of the suit property when requisite details about adverse possession were neither pleaded nor proved?
In addition, I frame one more substantial question of law, thus :
Whether the lower Appellate Court committed an error in performing the duty as Appellate Court to frame the points for determination on all the issues answered in the Trial Court and in particular about the ownership of the appellants/plaintiff and the possession of respondent Shantabai over the suit property and in what character?
3. I have heard learned counsel for the parties at length. I have perused the reasons recorded by the Courts below in their respective judgments. Learned Trial Judge .....6/-
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1) Do the plaintiffs prove to be the owners of the suit property?
2) Do they prove to have let the defendant to occupy it as a licensee?
3) Do they prove to have saved the defendant from a prosecution by accepting consideration of a sale of a part of the suit property?
4) Do they prove that the defendant manipulated Government record for her benefit?
5) Do they prove to have revoked licence of the defendant?
6) Does the defendant prove herself to be in possession of the suit property as an owner since 1967?
7) Is the suit properly valued? If yes, what is its effect?
8) What reliefs and costs?
9) Whether the suit is within limitation against the defendant No.2?
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Judgment Second Appeal No.380 of 2004 7
4. From perusal of the above, it is clear that learned Trial Judge answered issue No.1 that the plaintiffs had failed to prove that they were the owners of the suit property and that the defendant was the licencee though learned Trial Judge held in answer to issue No.6 that the defendant was in possession of the suit property as owner since 1967. These are the important issues which arose for adjudication before learned Trial Judge.
5. It is pertinent to note here that learned Trial Judge did not frame any issue about defendant occupied the suit property by way of adverse possession. Even in the alternative, adverse possession is a plea as is the trite law which is required to be thoroughly pleaded and proved for which the parties are required to have appropriate notice by way of pleading since mere long possession does not constitute adverse possession. All the more so, when the .....8/-
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6. Be that as it may, though learned Trial Judge answered all the issues, he did not hold anything about adverse possession.
7. The lower Appellate Court framed the following points for determination :
1) Is it proved by the plaintiffs that suit property came in possession of their father Lalchandsing in family partition effected between 3 brothers in the year 1979?
2) Whether the status of defendant No.1 over the suit premises could be regarded as licensee of plaintiff's father and ancestors?
3) Whether defendant No.1 has proved her title over the suit property by way of adverse possession?
4) Whether the original suit filed was within limitation?
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Judgment Second Appeal No.380 of 2004 9
5) What order?
It is clear from the reading of above referred points for determination that the lower Appellate Court did not frame any point as to whether the plaintiffs failed to prove their title. The lower Appellate Court, however, framed point No.3 as to whether defendant No.1 occupied the suit property by way of adverse possession.
8. As discussed above, there was no issue about adverse possession framed by learned Trial Judge nor any answer was given whereas in answer to point No.3 the lower Appellate Court recorded a categorical answer that there was adverse possession of defendant No.1.
9. Though learned counsel for the respondents Shri J.B. Gandhi made attempt to show that nevertheless the .....10/-
::: Uploaded on - 19/03/2016 ::: Downloaded on - 31/07/2016 09:05:05 :::Judgment Second Appeal No.380 of 2004 10 lower Appellate Court has discussed the evidence on record that the findings given by the lower Appellate Court are concurrent with the findings given by the Trial Court that the plaintiffs had failed to prove their title, in my view the attempt made by learned counsel Shri Gandhi may appeal to one. But, reading of the judgment of the lower Appellate Court does not show recording of categorical finding that the plaintiffs had failed to prove their title. On the contrary, the reasoning given by the Appellate Court denotes that respondent Shantabai was having adverse possession. As contended by learned counsel Shri J.B. Gandhi, there is no scope for this Court to draw inferences from the finding recorded by the lower Appellate Court since the lower Appellate Court, being the fact-finding Court and concrete findings based on facts and evidence must be recorded. In other words, the lower Appellate Court could have recorded a categorical finding that the plaintiffs had failed to prove .....11/-
::: Uploaded on - 19/03/2016 ::: Downloaded on - 31/07/2016 09:05:05 :::Judgment Second Appeal No.380 of 2004 11 their case or otherwise. Moreover, the lower Appellate Court could not have framed the point for determination about adverse possession when the issue was never framed before the Trial Court. However, the answer to point has been given by the lower Appellate Court that defendant No.1 proved her title by way of adverse possession.
10. In that view of the matter, I am of the considered opinion that there is a failure on the part of the lower Appellate Court as a Court of facts on all the issues arriving in the suit. None of the parties should lose the benefit of adjudication and the findings on the material issues from the first Appellate Court.
11. That being so, I answer question No.2, which is additionally framed by me, in the affirmative and also hold that there is no need to answer question No.1, which was .....12/-
::: Uploaded on - 19/03/2016 ::: Downloaded on - 31/07/2016 09:05:05 :::Judgment Second Appeal No.380 of 2004 12 framed by this Court at the time of admission of the second appeal, since the same is now left for the decision by the lower Appellate Court in accordance with law and subject to the objections, if any, raised before it. In that view of the matter, the following order is passed.
ORDER
1) Second Appeal No.380 of 2004 is partly allowed.
2) The impugned judgment passed by learned 2nd Ad-hoc Additional District Judge, Akola, on 17.6.2004, in Regular Civil Appeal No.135 of 2003 is set aside.
3) The record and proceedings of this appeal is remitted to the lower Appellate Court.
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4) The parties shall appear before the lower Appellate Court on 13.6.2016 and to abide by its further directions in the matter. The lower Appellate Court shall proceed to frame the proper points for determination.
5) Advocate appearing before the lower Appellate Court are at liberty to file draft points for determination, if they are so advised, and the lower Appellate Court shall consider and finalize the points for determination.
6) Upon finalization of the points, the lower Appellate Court shall attempt to hear and dispose of the appeal in view of the observations made by this Court in accordance with law afresh as .....14/-
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7) The parties are directed to maintain the status quo till the appeal is decided.
JUDGE !! BRW !! ...../-
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