Bapu Khanu Dhangar And Ors. vs Gundu Santu Dhangar, Since ...
2001 Latest Caselaw 304 Bom

JUDGMENT

S. A. Bobde, J.

1. This Second Appeal has been preferred by the Original Defendants against the judgment and order of the learned VIth Additional District Judge, Kolhapur, in Regular Civil Appeal No. 440 of 1985 by which the learned District Judge has decreed the Respondents' suit for injunction restraining the Appellants from interfering with the Plaintiffs' peaceful possession of the suit premises.

2. The Respondents filed the suit against the Appellants seeking to restrain the Appellants from entering into an open plot admeasuring 52 x 109 ft. bearing Gram Panchayat House No. 91.

3. The Respondents' case was that the suit property is exclusively owned and possessed by them. Admittedly, though the Respondents claimed that the property was purchased by their father Santu, no document of title, such as, Sale Deed, has been produced in the Court. The Appellants' case was that this property was purchased by their father Rama, who was joint owner of the suit property along with his brother Santu.

4. The learned Trial Court dismissed the Plaintiffs' suit primarily in view of the fact that the Plaintiffs did not produce any document of title in respect of the suit property but rely only on the Gram Panchayat records and Tax Receipts. The Trial Court mainly relied on an admission by the Plaintiffs that the Plaintiffs' father Santu and the Defendants' father Rama were real brothers and that no partition had taken place between them. In this view of the matter, the learned Trial Judge found that the father of the Appellants and the father of the Respondents were co-owners and the Respondents were, therefore, not entitled for injunction.

5. The Lower Appellate Court, in an Appeal by the Respondents, reversed the findings of the Trial Court mainly because, according to it, the Appellants did not produce a single place of documentary evidence to show that at any time, in the past, they or their ancestral owned and possessed any portion of the subject matter of the suit much less the Southern half area.

6. According to Mr. Katikar, learned counsel for the Appellants, the present Second Appeal has been admitted on the substantial questions of law incorporated in Ground Nos. 5, 7 and 8 of the Memo of Appeal. However, there are no substantial questions of law framed by this Court or identified by it, while admitting the present Appeal as to which substantial questions of law persuaded this Court to admit the present Second Appeal. I have, therefore, heard learned counsel for the parties on this point. Mr. Patil relied on a decision of the Supreme Court in the case of Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, in which, according to him, Their Lordships have held that this Court cannot decide a Second Appeal unless a substantial question of law is framed at the time of its admission. According to Mr. Patil, learned counsel for

Respondents, this Second appeal is liable to be dismissed as no substantial questions of law have been framed by this Court while admitting this Appeal. That was a case where, as apparent from paragraph 8 of the report, the High Court had interfered with the pure finding of fact"........and that too without framing any substantial questions of law as required by Section 100 of the Code of Civil Procedure, as amended from 1976." It, therefore, appears that the High Court had decided the Second Appeal finally without framing any substantial questions of law and, it is in this background, the Hon'ble Supreme Court took a view that the High Court cannot exercise its power to decide the Second Appeal unless substantial questions of law are framed at the stage of admission of the Second Appeal. There is no doubt that Their Lordships have made these observations in the facts of that case since the High Court had proceeded to dispose of the entire Second Appeal finally without ever having framed substantial questions of law.

7. In the present case, it is clear that this Court has admitted the present Second Appeal by its Order dated 10th September, 1990. It is reasonable to presume that this Court was satisfied on reading of the Memo of Appeal and three grounds incorporated therein, that the substantial questions of law arose for admitting the Appeal. It is possible that this Court due to oversight failed to advert to the substantial questions of law. On the other hand. I would consider it unreasonable to take the view that inspite of the fact that this Court was not satisfied as to the existence of any substantial questions of law, this Appeal was admitted.

8. Be that as it may, having regard to the proviso to sub-section (3) of Section 100 of the Code of Civil Procedure, 1908 and even otherwise also it is clear that this Court has power to hear the Appeal on substantial questions of law not formulated by it, if it is satisfied that the case involves such a question, after framing such questions. I am, therefore, in the circumstances of the case, instead of dismissing the Appeal, which has been admitted about 11 years ago, on such a point, inclined to adopt three grounds, i.e. Grounds Nos. 5, 7 and 8, as incorporated in the Memo of Appeal, as substantial questions of law.

9. In addition, the following substantial question of law arises for decision in this matter and it is as follows :-

"Whether the finding of the Lower Appellate Court that the Respondents are exclusive owners of the suit property inspite of a categorical admission by Plaintiff No. 1 that his father Santu and the Appellants' father Rama were joint suffers from a perversity?"

10. Mr. Patil, learned counsel for the Respondents, relied on another decision of the Supreme Court in the case of Sayamma v. Basamma, in which Their Lordships have set aside the judgment of the High Court on the ground that no substantial questions of law were framed as required under Section 100 of the Code of Civil Procedure, 1908 and without considering the same, the High Court set aside the judgments of both the Courts below. I am not inclined to accept the contentions of Mr. Patil that this decision is authority for the proposition that it is not permissible for the High Court to frame a substantial question of law while deciding

the matter if it finds, as a result of an omission, that the questions were not framed at the time of admission of the Appeal. It is settled law that the act of the Court shall not prejudice the right of any party to the litigation, and, therefore, if this Court has failed to formulate or specify the substantial questions of law, it need not result in prejudice to any party. In the interest of justice, I consider it proper to proceed with the present Second Appeal on the basis of the substantial questions of law which were incorporated in the Memo of Appeal at the time of admission and additional substantial question of law framed at the time of final hearing of this Second Appeal.

11. Mr. Katikar, learned counsel for the Appellants/Original Defendants contended that the judgment of the Lower Appellate Court suffers from a perversity inasmuch as it completely ignores the fact that when the suit property was purchased, the Respondent No. 1 was 1 year old. He further points out the fact that the Respondent No. 1 himself has admitted that his father, i.e. Santu, and the Appellant's father, i.e. Rama, were joint, and there was no partition between them. According to the learned Counsel, it is obvious from the admission of the Respondent/ Original Plaintiff No. 1 himself that he could not have been held to be exclusive owner of the suit property inspite of the Gram Panchayat record and the Tax Receipts which show his name.

12. Mr. Patil, learned counsel for the Respondents/Original Plaintiffs, however, submitted that this is the question of fact which may not be gone into the Second Appeal,

13. Having heard Learned Counsel for the parties at length and having perused the judgments of the two Courts below, I am of the view that there is a perversity in the findings of the Lower Appellate Court in ignoring the admission of the Respondent No. 1 that when the suit property was purchased, he was 1 year old and. at that time, his father and the Defendants' father were joint and there have never been the partition between them. This property therefore could not have been held to his exclusive property. Having regard to the settled position in law that the revenue records and tax receipts are the documents of title by themselves and are only the corroborative pieces of evidence. I am of the view that the findings of the Lower Appellate Court that the Respondents are exclusive owners of the suit property and are entitled to the exclusive possession thereof are not sustainable for the reasons stated hereinabove.

14. In the result, the Second Appeal No. 443 of 1990 is allowed with costs. The suit instituted by the Respondents /Original Plaintiffs stands dismissed.