Bombay High Court
Ismail @ Gunda Burhansaheb & ... vs Shaikh Maheboob @ Pasha Dadabhai ... on 5 April, 2016
Bench: T.V. Nalawade
1 SA 206 of 1991
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 206 of 1991
1) Ismail @ Gunda Barhansaheb Dhanure
Since deceased through his legal
representatives:
1-A) Shaikh Sadat s/o Ismail,
Age 63 years,
Occupation : Agriculture.
1-B) Shaikh Bashir s/o Ismail,
Age 60 years,
Occupation : Agriculture.
1-C) Shaikh Niymatbee w/o Abdul Gani,
Age 55 years,
Occupation : Agriculture.
2) Neelofar d/o Sadat-Shaikh,
Age 28 years,
Occupation: Education.
All R/o Bevnal,
Taluka Shirur Anantpal,
District Latur.
At Present Opp. Manjara
Hospital, Gandhi Market,
Latur, Taluka and District
Latur. .. Appellants.
Versus
* Shaikh Mahboob @ Pasha
S/o Dadabhai Dhanure
Since deceased through his
legal representatives :
::: Uploaded on - 18/04/2016 ::: Downloaded on - 29/07/2016 21:06:23 :::
2 SA 206 of 1991
1-A) Shaikh Jameerbee w/o Maheboob,
Age 72 years,
Occupation : Agriculture.
1-B) Shaikh Ameensab s/o Maheboob,
Age 50 years,
Occupation: Agriculture.
1-C) Shaikh Nijam s/o Maheboob,
Age 48 years,
Occupation: Agriculture.
1-D) Shaikh Bijanbee d/o Maheboob,
Age 45 years,
Occupation: Agriculture.
1-E) Shaikh Ujalabee d/o Maheboob,
Age 42 years,
Occupation: Agriculture.
All R/o Bevnal,
Taluka Shirur Anantpal,
District Latur. .. Respondent.
--------
Shri. P.R. Katneshwarkar, Advocate, for appellants.
Shri. Anil M. Gaikwad, Advocate, for respondent No.1(C).
--------
CORAM: T.V. NALAWADE, J.
DATE : 5th APRIL 2016
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.104/1982 which was
pending in District Court Latur. The appeal was filed by
3 SA 206 of 1991
the present respondent, original defendant of Regular
Civil Suit No.199/1975 which was pending in the Court of
the Civil Judge, Junior Division, Nilanga. The suit filed by
the present appellant for relief of perpetual injunction was
decided in his favour by the trial Court and this decision is
set aside by the first appellate Court. Both the sides are
heard.
2) The suit was filed in respect of agricultural land
admeasuring 9 acres 30.1/2 gunthas, which is eastern part
of Survey No.24 situated at village Ankulga Syed, Tahsil
Nilanga. The plaintiff has given hand sketch map of
Survey No.24 to show the location of the suit property. It
is the case of the plaintiff that the property had come to
the plaintiff and defendant from their father and so they
had equal share in Survey No.24. It is contended that
many years prior to the date of the suit the plaintiff and
defendant had partitioned the property between them and
eastern part of the suit property was allotted to the share
of the plaintiff. It is contended that from the western part
the defendant sold 7 acres 7 gunthas through registered
sale deed dated 27-3-1954 and then remaining part was
4 SA 206 of 1991
also sold by the defendant and so the defendant has no
property in Survey No.24. It is contended that since the
date of partition, the plaintiff has been in exclusive
possession of the suit property and the defendant has no
concern whatsoever with the suit property. It is contended
that due to collusion between the defendant and revenue
officers, the name of the defendant is continued in the
revenue
record and due to that the defendant is
disturbing the possession of the plaintiff over the suit
property. Relief of injunction was claimed.
3) The defendant contested the suit by filing
written statement. He admitted relationship but he denied
that Survey No.24 had come to the plaintiff and defendant
from their father. It is the case of the defendant that in the
year 1954 he sold western portion of 7 acres 7 gunthas to
one Apparao under sale deed and since then the
remaining portion of 12 acres and 14 gunthas is with the
defendant and that portion is given Survey No.24/A. It is
contended that the sold portion is given Survey No.24/B
and the plaintiff had no concern with Survey No.24.
5 SA 206 of 1991
4) The issues were framed on the basis of the
aforesaid pleadings. Both the sides gave evidence. The
trial Court decreed the suit due to circumstance that in
the past sale deed of some portion of the western side
was executed by the defendant but the remaining portion
was not sold. The circumstance that other properties were
sold is also considered. The first appellate Court has held
that the plaintiff has failed to prove that the property had
come to the plaintiff and defendant from their father. The
first appellate Court had held that the property was
owned by the defendant and at no time the name of
plaintiff was entered in possession column and so there
was no possibility of giving the relief of injunction in
favour of the plaintiff.
5) There is record starting from the year 1954-55
like Khasara Pahani Patrak and the record shows that
right from beginning the defendant was shown as owner
and person in possession of entire Survey No.24. The
record shows that after selling some property by the
defendant survey number was divided into two numbers
like Survey Nos. 24/A and 24/B. Right from the year 1955
6 SA 206 of 1991
the defendant was shown in possession of entire portion of
12 acres and 14 gunthas which is the area of Survey
No.24/A. Even on the date of the suit, 7/12 extract shows
that entire area was in possession of the defendant as
owner. At no point of time name of the plaintiff was
entered even in cultivation column.
6)
The case of the plaintiff that the parties had
divided the property between themselves does not look
probable as from the total area, area of 19 acres, 7 acres
land is sold by the defendant and the record does not
show that prior to the date of transaction made by the
defendant, the property was divided into two equal
portions. If there was partition, the parties would have
created equal share.
7) The parties belong to Muslim community. To
show that, the plaintiff has share in the suit property it
was necessary for the plaintiff to establish that the
property was initially owned by the father of the plaintiff
and then the property was entered in the name of the
defendant. There is no such record. Further for getting
7 SA 206 of 1991
relief of injunction plaintiff was required to prove the
possession. The plaintiff could not prove possession on
the basis of document or oral evidence. In view of this
circumstance this Court holds that the first appellate
Court has not committed any error in allowing the appeal
and dismissing the suit. The finding given by the first
appellate Court is finding of question of fact.
8) While admitting the appeal this Court had
observed that substantial questions of law can be
formulated on the basis of Grounds A, B, D, F, H and I of
the appeal memo. This Court holds that no substantial
question of law as such is involved in the matter as the
plaintiff was expected to prove his possession on the date
of the suit.
9) In the result, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
