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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.229 of 2004
Narayanrao s/o Amrutrao Zingade,
Aged about 73 years,
R/o Amravati, Distt. Amravati. ... Appellant
Versus
Devidas s/o Sheshrao Thete,
through his LRs.:
1(A) Gajanan Devidas Thete,
Aged about 36 years,
R/o Bhagya Nagar,
Pusad, Tah. Pusad,
Distt. Yavatmal.
1(B) Sushant Devidas Thete,
Aged about 34 years,
R/o Bhagya Nagar,
Pusad, Tah. Pusad,
Distt. Yavatmal.
1(C) Bharti w/o Jagannath Lonkar,
Aged about 30 years,
Resident of C/o Smt. Annapurna
wd/o Devidas Thete,
R/o Bhagya Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal.
1(D) Ashwini w/o Pramod Khadse,
Aged about 28 years,
Resident of Satefal,
Tal. Chandur-Railway,
Distt. Amravati.
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1(E) Smt. Annapurna wd/o Devidas
Thete,
R/o Bhagya Nagar, Pusad,
Tah. Pusad, Distt. Yavatmal. ... Respondents
Shri S.V. Sohoni, Advocate for Appellant/Original Plaintiff.
None for LRs. of Original Defendant (Respondents).
Coram : R.K. Deshpande, J.
th Dated : 16 March, 2017 Oral Judgment :
1. Heard Shri Sohoni, the learned counsel for the appellant. None appears for the respondents.
2. The Trial Court dismissed Special Civil Suit No.14 of 1995 for possession of the suit property on the basis of title and also for rendition of accounts, on 5-9-2000. The lower Appellate Court also dismissed Regular Civil Appeal No.43 of 2000 on 8-12-2003. Hence, this second appeal against the concurrent findings of fact recorded by the Courts below. ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 ::: 3
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3. On earlier occasion, the second appeal was dismissed in motion-hearing on 7-4-2005. Subsequently, the learned Judge, who dismissed the appeal (Shri K.J. Rohee, J.), allowed Review Application No.692 of 2006 by speaking order, which is reproduced below :
" Heard Mr. S.V. Sohoni, Advocate for the applicant (hereinafter referred to as "the plaintiff for the sake of convenience) and Mr. S.T. Harkare, Advocate for the non-applicant (hereinafter referred to as "the defendant").
2. The plaintiff is the maternal uncle of the defendant. The plaintiff instituted a suit for possession of a plot as well as machineries and for partnership account and recovery of partnership share. It is the case of the plaintiff that he had purchased the said plot as well as machinery in his name out of his own funds and gave the same to the defendant in pursuance of the partnership. Lateron since the defendant failed to deliver back possession, the plaintiff was required to institute the suit.
3. The defendant admitted that the sale deed of the plot is in the name of the plaintiff. However, he raised a defence that the funds for the purchase of the plot were provided by him and merely the sale deed was obtained in the name of the plaintiff. Thus the defendant is the real owner of the plot, the plaintiff being Benamidar.
4. From the above pleadings, it may be seen that the burden of proving title to the suit plot heavily rested on the defendant because the sale deed admittedly stood in the name of the plaintiff. However, the trial Court placed the ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 ::: 4 sa229.04.odt entire burden on the plaintiff and did not frame any issue laying the burden on the defendant. The same error was repeated by the first appellate Court.
5. The second appeal preferred by the plaintiff came to be dismissed in limine without considering the aspect of wrong placement of burden of proof on the plaintiff. Hence I think it expedient to review the order of dismissal of the second appeal.
6. Consequently the review application is allowed and the appeal is restored to file."
4. The second appeal was admitted on 11-7-2007, framing the substantial questions of law as under :
" Heard the learned counsel for the parties.
Second appeal is admitted on the following substantial questions of law:
(1) Whether the Courts were justified in casting the burden on the plaintiff to show that he was the owner of the plot when the defendant had admitted that the plot was purchased in the name of the plaintiff?
(2) Whether it was necessary for the defendant to prove that the defendant was the real owner of the plot and the plaintiff was the benamidar?
(3) Whether the suit filed by the plaintiff could have been dismissed mainly on the ground that the plaintiff had ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 ::: 5 sa229.04.odt failed to produce the sale deed on record when the defendant did not deny that the suit property was purchased in the name of the plaintiff by a registered sale deed?"
5. It is not in dispute that the sale-deed in respect of the suit property is in the name of the plaintiff. The burden, therefore, shifted upon the defendant, who claimed that the suit property was purchased by him with his own funds in the name of the plaintiff, which was the stand taken in the written statement. The Courts below have framed an issue as to whether the plaintiff has established that he purchased the suit property with his own funds. However, there was no issue framed as to whether the defendant has established that the suit property was purchased with his own funds in the name of the plaintiff and that the plaintiff was Benamidar. Obviously, when the fact that the sale-deed in respect of the suit property stood in the name of the plaintiff was not disputed, the question of producing the sale-deed on record did not arise.
6. In view of the aforesaid factual position, it has to be held ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 ::: 6 sa229.04.odt that the Courts below were not justified in casting the burden on the plaintiff to show that he was the owner of the suit property, and for non-production of the sale-deed, the plaintiff has failed to establish his title over the suit property. It was the stand of the defendant that he was the real owner of the suit property and the plaintiff was Benamidar. Hence, the issue ought to have been framed by the Trial Court casting the burden upon the defendant to prove this fact. Since neither the Trial Court framed the issue nor the lower Appellate Court framed the point for determination, the matter will have to be remitted back to the Trial Court for framing such an issue so that the defendant gets an opportunity to establish his claim by leading evidence. The substantial questions of law are, therefore, answered accordingly.
7. In the result, the second appeal is allowed. The judgment and decree dated 5-9-2000 passed by the Trial Court in Special Civil Suit No.14 of 1995 as well as the judgment and order dated 8-12-2003 passed by the lower Appellate Court in Regular Civil Appeal No.43 of 2000, are hereby quashed and set ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 ::: 7 sa229.04.odt aside. The matter is remitted back to the Trial Court to frame an issue as to whether the defendant has proved that he was the real owner of the suit property, that he purchased it with his own funds, and that the plaintiff was Benamidar.
The Trial Court to decide the suit afresh after re-framing the issue and by providing an opportunity to the parties to lead evidence in support of their case.
The plaintiff to appear before the Trial Court on 17-4-2017.
The Trial Court to decide the matter within a period of eight months from the date of first appearance of all the parties before it.
R & P be sent back to the Trial Court.
JUDGE.
Lanjewar ::: Uploaded on - 17/03/2017 ::: Downloaded on - 18/03/2017 01:03:12 :::