The Bombay High Court allowed an appeal filed against the Judgment and Decree passed by the Learned Adhoc District Judge dated 30/01/2014 which had confirmed the judgment and decree passed by the learned Civil Judge, Junior Division dated 07/10/1997. The Court observed that the learned Lower Court failed to appreciate the fact that the relinquishment deed relied on by the defendant is not produced on record and the same is disputed by the plaintiff.
Brief Facts:
The appellant and respondent are brother and sister. The Father of the appellant and the respondent owned and possessed the field property situated at mouza. Father of the appellant and the respondent died on 03/03/1977 leaving behind him, the appellant, and the respondent as his legal heirs. The appellant and the respondent have equal share i.e. 1/2 share in the field property A to C after the death of their father. Still, the property is a joint property of the appellant and the respondent. The appellant demanded the partition of the said property so many times to the respondent but in vain. The appellant issued a registered notice on 03/06/1986 through the Counsel for partition. The respondent received it but he did not take any cognizance of it nor did he reply. On the contrary, the respondent played a foul game with the appellant and obtained the signature of the appellant on one stamp by saying that it was related to a partition deed between them. The appellant came to know that the respondent had taken advantage of the faith of the appellant and created one false document as a deed of relinquishment. When the respondent applied for mutation on the basis of the said alleged relinquishment deed, 23/07/1990, on receipt of notice from Talathi she came to know about this document, hence she filed suit for partition and separate possession.
The defendant filed a written statement and stated that the suit property was the self-acquired property of the Champatrao and therefore, he is the exclusive owner and possessor of the suit land. The lower Court after considering the evidence on record dismissed the suit of the appellant/plaintiff. Being aggrieved by the same, the appellant filed a Regular Civil Appeal before the District Court – Wardha. Learned Appellate Court dismissed the same with costs.
Contentions of the Appellant:
The Learned Counsel for the Appellant argued that the learned Lower Courts failed to address the issue of partition and recorded a perverse finding that because she did not file suit for partition for more than 14 years after the death of her father, despite the fact that her name along with her brother was recorded in the record of rights including 7/12 extract, her silence would amount to waiving of the right of partition by her.
Observations of the Court
The Court noted that the learned Lower Court, in the first place, failed to appreciate the fact that the relinquishment deed relied on by the defendant is not produced on record and the same is disputed by the plaintiff. The conduct on the part of the defendant clearly goes to show that he wanted to deceive the plaintiff. The learned Trial Court as well as Appellate Court failed to appreciate this fact in its proper perspective and recorded a perverse finding.
Further, the Court observed that the relinquishment deed ought to be a registered one in view of Section 17 (1)(b) of the Registration Act. The defendant’s case is based on a “will deed”. The defendant contends that the will deed, which is written by the plaintiff’s father, mentions that he paid the amount for the purchase of the field in the name of the plaintiff. However, the will deed is not produced on record nor proved.
The Court remarked that as such, the relinquishment deed requires to be registered otherwise it is not admissible in evidence. In the present matter, the relinquishment deed itself is not produced at all nor it is the case of the defendant that it was the registered one.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the judgment and decree passed by learned Adhoc District Judge, Wardha, dated 30/01/2014, thereby confirming the judgment and decree passed by the learned Civil Judge, Junior Division, Ashti dated 07/10/1997 both are hereby quashed and set aside.
Case Title: Chandrabhaga Kolhe (Deceased) through L.R’s vs Suryabhan S/o Champatra Shende (Deceased) Through Lrs
Coram: Hon’ble Justice M.S. Jawalkar
Case no.: SECOND APPEAL NO. 236/2014
Advocate for the Appellant: Mr. P.D. Meghe
Advocate for the Respondent: No appearance
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