Bombay High Court
Smt.Sukhdevi Wd/O Munnar Bhujwa, ... vs Nandu Piraji Bhusare, & 10 Ors on 18 April, 2016
Bench: A.S. Chandurkar
1 sa.294.02.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.294 OF 2002
Appellants : Smt. Sukhdevi wd/o Munnar Bhujwa,
since dead by L.Rs.
1] Ramkumar s/o Munnar Bhujwa (Gupta),
Aged 65 years, Occupation : Business,
ig R/o Panchsheel Nagar, Karanja Road,
Mangrulpir, District Washim.
2] Kantilal s/o Munnar Bhujwa (Gupta)
3] Rajendra s/o Munnar Bhujwa (Gupta),
Aged 40 years, Occupation : Labour.
Nos. 2 and 3 are r/o Rajputpura, Mangrulpir,
District Washim.
-- Versus --
Respondents : 1] Nandu s/o Piraji Bhusare,
Aged about 58 years.
2] Smt. Shashikala w/o Nathhu Gadekar
Aged about 60 years.
Nos. 1 & 2, R/o Dabha,
Tah. Mangrulpeer, District Washim.
Dismissed against R-3 as 3] Smt. Sayatrabai w/o Surbhan Mote,
per Registrar (J) order dt. Aged about 62 years,
20/11/2008. R/o Bhojla, Tahsil Pusad, Distt. Yavatmal.
Dismissed against R-4 as 4] Smt. Kawarika Smbhaji Mote,
per Registrar (J) order dt. Aged about 52 years, Cultivator,
14/01/2010. Pokhari, Tah. Pusad, Distt. Yavatmal.
Respondents 1 to 4 also as heirs of
Respondent No.11.
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2 sa.294.02.jud
5] Smt. Jeejabai w/o Bhiwaji Pandule,
Aged about 66 years,
R/o at Hata (Pati),
Tah. Shengaon, District Hingoli.
6] Smt. Tulsabai w/o Tayaram Pawade,
Aged about 54 years, Occupation : Cultivator,
R/o Aakoli, Tahsil Gangakhed, Distt. Parbhani.
At present r/o Pension Pura, Hingoli.
ig Also as heir of Respondent No.11.
Dismissed against R-3 as 7] Smt. Sulochana Devidas Gand,
per Registrar (J) order dt. Aged about 50 years,
20/11/2008. R/o Basegaon, Tahsil Ner, Distt. Yavatmal.
8] Smt. Pakhari w/o Vitthal Pandule,
Aged about 48 years,
R/o Pokhari, Tah. Mahagaon, Distt. Yavatmal.
Also as heir of Respondent No.11.
9] Khandu Piraji Bhusare,
since dead by L.Rs. (A) to (E).
9-A] Smt. Kusumbai wd/o Khandu Bhusare,
Aged about 40 years.
9-B] Chandan s/o Khandu Bhusare,
Aged about 16 years (Minor).
9-C] Yuvraj s/o Khandu Bhusare,
Aged about 9 years (Minor).
9-D] Smt. Godavari w/o Ravi Gadekar,
R/o Khapri (Umari Bzk.,),
Tah. Mangrulpir, District Washim.
9-E] Ku. Bali d/o Khandu Bhusare,
since married name
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3 sa.294.02.jud
Smt. Bali w/o Santosh Gadekar,
R/o at Khapari (Umari Bzk.,),
Tah. Mangrulpir, District Washim.
10] Uttam s/o Datta Gawali,
Aged about 45 years, Occupation Cultivator,
R/o Dabha, Tahsil Mangrulpeer, Distt. Washim.
11] Smt. Shalubai wd/o Piraji Bhusare,
Deleted vide Court Order
on C.A. No.8609/05. Aged about 82 years,
ig R/o Dabha, Tah. Mangrulpeer, Distt. Washim.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri B.N. Mohta, Advocate for the appellants
None for the respondents
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : A.S. CHANDURKAR, J.
DATE : 16
and 18
th
APRIL, 2016.
th
ORAL JUDGMENT :-
01] The present appeal has been filed by the original plaintiff who
is aggrieved by the judgment of the first appellate Court by which the
decree for possession passed by the trial Court stands reversed. The
parties are referred to as per their original status.
02] It is the case of the plaintiff-Sukhdevi that field Survey No.2
admeasuring 7 acres 9 gunthas along with one well situated therein was
owned by one Piraji Satwaji and his brother Govardhan Satwaji. By
registered sale deed dated 16/04/1956, the suit field was sold to the
plaintiff for consideration of Rs.1500/- and she was put in possession.
4 sa.294.02.jud
Initially, the suit field was cultivated by the plaintiff till the year 1974 and
she was taking crops from the suit field. On 03/10/1975, the son of the
plaintiff expired and, therefore, she could not go to her field till
23/10/1975. According to the plaintiff, said Piraji had taken forcible
possession of the suit field on 23/10/1975. The matter was reported by the
plaintiff to the police authorities. However, no action was taken in that
regard. Thereafter on 08/01/1980 a portion of the suit field admeasuring 2
acres 5 gunthas was sold by said Piraji in favour of defendant No.11.
Ultimately on 22/09/1982, the plaintiff filed R.C.S. No.48/1982 for
possession of the suit field. It was pleaded that the cause of action arose on
23/10/1975 when forcible possession was taken by Piraji.
03] The written statement came to be filed by defendant No.1 who
was the son of Piraji as in the meanwhile Piraji had expired. In the written
statement, it was denied that Piraji and his brother had executed sale-deed
dated 16/04/1956. It was also denied that Piraji had taken forcible
possession on 23/10/1975. A specific plea was taken was that the alleged
sale deed dated 16/04/1956 was in fact, nominal a document executed by
way of security for a loan taken from the father of the plaintiff. Pleas of the
suit being barred by limitation and the title being perfected by adverse
possession were also taken.
5 sa.294.02.jud
Written statement was filed by defendant No.11 below Exh.23
denying the claim of the original plaintiff.
04] After issues were framed, the parties led evidence. On the
basis of aforesaid evidence, the trial Court held that the plaintiff had
proved that she had become the owner of the suit field by virtue of sale-
deed dated 16/04/1956. It was further held that she had proved that she
was put in possession and that she came to be dispossessed by Piraji on
23/10/1975. A further finding was recorded that the sale-deed dated
16/04/1956 was a sale transaction and the transaction in question was not
the outcome of any loan transaction. The sale-deed dated 08/01/1980
executed in favour of defendant No.11 was also set aside. Accordingly, the
trial Court decreed the suit and directed the defendants to restore the
possession to the plaintiff.
05] An appeal came to be filed by the original defendant No.1 and
the defendant No.11. The appellate Court on reconsideration of the entire
evidence recorded a finding that the sale-deed dated 16/04/1956 was a
transaction of sale and the finding recorded by the trial Court in that
regard came to be confirmed. The appellate Court further held that the
evidence on record indicated that even after execution of the sale-deed, the
6 sa.294.02.jud
revenue records showed the name of Piraji and this falsified the case of the
plaintiff that she was in possession of the suit field after the sale
transaction. It further did not accept the case of the plaintiff that she was
dispossessed by Piraji on 23/10/1975. It, therefore, held that the suit as
filed in the year 1982 was barred by limitation. On that basis, the appeal
was allowed and the decree passed by the trial Court was set aside.
06] While admitting the second appeal, the following substantial
questions of law were framed:
1. Whether the first appellate Court fell in error in holding that
plaintiff was not dispossessed in 1975 and whether that finding
could be said to be perverse ?
2. Whether the suit falls under Article 64 or 65 of the Limitation
Act, 1963?
07] Shri B. N. Mohta, the learned Counsel for the legal heirs of the
plaintiff submitted that the appellate Court was not justified in holding that
the plaintiff was not in possession of the suit field after execution of the
sale- deed and that she was not dispossessed in the year 1975. According
to him, various documents on record such as the mutation entry at Exh.93,
the extracts from the revenue records at Exh.98 to Exh.110, the agreement
7 sa.294.02.jud
executed by Piraji at Exh.112 and the police report at Exh.113 clearly
indicated that it was the plaintiff who was in possession of the suit field
after execution of the sale-deed till her dispossession. He submitted that
the finding recorded by the trial Court that the sale-deed executed by Piraji
and his brother on 16/04/1956 was a genuine sale transaction was
affirmed by the appellate Court and on that basis, it could not have been
held that the plaintiff had lost her title. He submitted that the crop
statement at Exh.97 for the year 1971-72 showed the possession of the
plaintiff and as the suit was filed on 22/09/1982, the same was within
twelve years from the alleged dispossession on 23/10/1975. It was,
therefore, submitted that the appellate Court was not justified in coming to
the conclusion that the suit was barred by limitation. He further submitted
the finding recorded by the appellate Court on the question of
dispossession was also not sustainable considering the material evidence on
record. Therefore, according to him, the appellate Court was not justified
in reversing the decree passed by the trial Court.
08] There was no appearance on behalf of the respondents on
15/04/2016 when the learned Counsel for the appellants was heard. Even
today there is no appearance on behalf of the respondents.
8 sa.294.02.jud
09] With the assistance of the learned Counsel for the appellants, I
have perused the records of the case and I have gone through the
impugned judgments.
18 APRIL, 2016
th
10]
It is the case of the plaintiff that by virtue of sale-deed dated
16/04/1956, the suit field was purchased from Piraji and Govardhan. Said
sale-deed is at Exh.92 of the record. After execution of the sale-deed, the
mutation entry showing the name of the plaintiff was taken and its copy is
at Exh.93. This document shows that on 10/01/1965, the land in question
had been mortgaged by executing a document in that regard. There are
other documents in the form of revenue records at Exh.94 to Exh.99. At
Exh.95 is the extract for the year 1969-70, at Exh.96 is the extract for the
year 1970-71 and at Exh.97 is the extract for the year 1971-72, all showing
the plaintiff's possession. Exh.98 and Exh.99 which are corrected extracts
also show the possession of the plaintiff. There is another document at
Exh.112 which is an agreement executed between the plaintiff and Piraji.
As per this agreement dated 07/06/1973, said Piraji admitted the
ownership of the plaintiff and he had agreed to undertake agricultural
operations in the said land in the year 1973-74.
9 sa.294.02.jud
From this agreement at Exh.112, it can be concluded that in
the year 1993-94, Piraji admitted the ownership as well as possession of
the plaintiff. It is on the basis of this document that the trial Court while
considering Issue Nos.2 and 3 has found that the appellant had proved that
she was placed in possession of the suit field and that the land was in her
cultivating possession. As per Exh.113, the plaintiff lodged a report on
23/10/1975 that Piraji and his colleagues had removed crops from her
field in her absence. It has been found on aforesaid basis that the plaintiff
came to be dispossessed on 23/10/1975.
11] The appellate Court considering this evidence on record while
answering Point No.2 has held that the crop statements at Exh.98 and
Exh.99 for the years 1972-73 and 1973-74 were the documents filed by the
plaintiff herself. It has then discarded the agreement at Exh.112 on the
ground that said document had been attested by the witness Pannalal
(Exh.121) subsequently and, therefore, the same was of no assistance to
the appellant. It is on this basis that the decree for possession passed by
the trial Court has been reversed by the appellate Court.
The deposition of Pannalal at Exh.121 does not suffer from
any infirmity so as to discard the same in its entirety. In fact, the son of
10 sa.294.02.jud
Piraji, Nandlal who deposed at Exh.132 had stated that he did not
remember whether his father had executed the document at Exh.112.
12] It cannot be lost sight of fact that the appellate Court has
upheld the case of the plaintiff as regards the validity of the transaction of
sale dated 16/04/1956. This finding has been recorded in paragraph 24 of
the impugned judgment. In the light of aforesaid findings coupled with the
agreement at Exh.112, it would not lie in mouth of the vendor of the
plaintiff that the plaintiff had no title to the suit property. Once this
finding is recorded, then the question of the suit being filed after a period
of 12 years would not arise inasmuch in the agreement at Exh.112 dated
07/06/1973 Piraji had acknowledged the title and possession of the
plaintiff and the suit was filed on 22/09/1982. Hence, the finding
recorded by the appellate Court that the suit was filed after 12 years from
dispossession by the appellant is not liable to be sustained.
13] Considering the documentary evidence on record including
the revenue record and the crops statements coupled with the agreement at
Exh.112, it cannot be said that the findings recorded by the trial Court as
against Issue Nos.2 and 3 was so perverse that the same were required to
be set aside by the appellate Court. The appellate Court has given undue
11 sa.294.02.jud
importance to the date on which the mutation entries were corrected
ignoring the material document by which said Piraji had agreed to carry
out agricultural operations in the year 1973-74 vide document at Exh.112
after acknowledging the ownership of the plaintiff. As observed by the
Hon'ble Supreme Court in Sarju Pershad vs. Jwaleshwari Pratap - AIR
1951 SC 120, the appellate Court has to see whether the evidence taken as
a whole could reasonably justify the conclusion of the trial Court. In the
present case, it can be said that the conclusion of the trial Court was
justified in the light of the evidence on record. It would, therefore, have to
be held that the appellate Court was not justified in reversing these
findings that were recorded by the trial Court. The substantial question of
law framed at Sr. No.1 is, therefore, answered by holding that the appellate
Court fell in error in holding that the appellant was not dispossessed in the
year 1975. Said finding is perverse and hence liable to be set aside.
14] The second substantial question of law is with respect to the
aspect of applicability of Article-64/Article-65 of the Limitation Act, 1963
(for short, 'the said Act'). As noted hereinabove, the title of the plaintiff by
virtue of sale-deed dated 16/04/1956 stands duly established as the
finding recorded by the trial Court in that regard has been affirmed by the
appellate Court. As per the agreement executed by Piraji at Exh.112, he
12 sa.294.02.jud
acknowledged the title of the plaintiff and also agreed to undertake
agricultural operations in the year 1973-74 for consideration of Rs.225/-
with a further stipulation that the crops grown in Survey No.2 would
belong to the plaintiff. In this backdrop, therefore, it is clear that the suit
as filed was under Article-65 of the said Act. Under Article-65 of the said
Act, the period of limitation would begin to run when the possession of the
defendant becomes adverse to the plaintiff. The defendant having
acknowledged the title of the plaintiff in the agreement dated 07/06/1973
(Exh.112) and the suit based on title having been filed on 22/09/1982, it
was clear that the same was within limitation. The trial Court on a proper
appreciation of the entire evidence on record had held the suit to be filed
within limitation. The appellate Court, however, erroneously and by
ignoring the material evidence on record proceeded to hold that the
plaintiff had lost her title and that suit was barred by limitation under
Article-64 of the said Act. This finding is found to be bad in law
The second substantial question of law is answered by holding
that the suit as filed was under Article-65 of the said Act.
15] In view of aforesaid discussion, the following order is passed :
13 sa.294.02.jud
i. The judgment dated 16/02/2002 in R.C.A. No.25/1998 is set
aside.
ii. The judgment of the trial Court in R.C.S. No.48/1982, dated
31/12/1997 stands restored.
iii. The second appeal is allowed in aforesaid terms with no order
as to costs.
JUDGE
*sdw
