Dipchand S/O Dagdulal Somani And ... vs Laxminarayan S/O Dagdulal Somani ...
2016 Latest Caselaw 1654 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                    NAGPUR BENCH, NAGPUR




                                                       
                         Second Appeal No.92 of 2015


      1. Dipchand s/o Dagdulal Somani,
         through POA Dr. Lalchand s/o Dagdulal Somani,




                                                      
         Aged about 69 years,
         Occupation - Agriculturist,
         R/o Professor Colony, Washim,
         Tq. and Dist. Washim.




                                        
      2. Dr. Lalchand s/o Dagdulal Somani,
         Aged about 66 years,
         Occupation - Doctor,
         R/o Main Road, Gondia,
         Also at Washim.                                 ... Appellants
                            
           Versus

      1. Laxminarayan s/o Dagdulal Somani,
         Aged about 79 years,
      


         Occupation - Agriculturist,
         R/o Ansing, Tq. & Dist. Washim.
   



      2. Gopal s/o Laxminarayan Somani,
         Aged about 36 years,
         Occupation - Agriculturist,





         R/o Ansing, Tq. & Dist. Washim.

      3. Nandkishore s/o Laxminarayan Somani,
         Aged about 34 years,
         Occupation - Agriculturist,
         R/o Ansing, Tq. & Dist. Washim.                 ... Respondents   





      Shri M.G. Sarda, Advocate for Appellants.
      Shri B.N. Mohta, Advocate for Respondent No.1.




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                    Coram : R.K. Deshpande, J.

                    Dated  : 20    April, 2016
                                th
                                               




                                                                
       Oral Judgment :

1. In Regular Civil Suit No.133 of 2004 filed by the appellants,

who are the original plaintiffs, a relief was claimed for declaration that

the plaintiff No.1 has executed a registered sale-deed in favour of the

plaintiff No.2, who has become the absolute owner of the suit

property. The suit claims the relief of permanent injunction

restraining the respondents, who are the original defendants, from

interfering with the possession of the plaintiffs over the suit property.

An alternate relief is also claimed for a decree for possession in the

event if it is found that the plaintiffs have lost the possession. The

Trial Court dismissed the suit on 2-11-2006. Regular Civil Appeal

No.128 of 2006 filed by the plaintiffs has also been dismissed by the

lower Appellate Court on 24-11-2014. The original plaintiffs are,

therefore, before this Court in this second appeal.

2. Both the Courts below have held that there was an oral

partition between the parties to the suit in the year 1958 and the

plaintiff No.1 was allotted the suit property as his share in the

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partition. The Courts below have also held that since the title is not

claimed in favour of the plaintiff No.1 in the suit property, the plaintiff

No.1 had no locus standi to file a suit claiming such reliefs. Both the

Courts below have held that the two sale-deeds, both

dated 30-4-2004, at Exhibits 65 and 66 said to have been executed by

the plaintiff No.1 in favour of the plaintiff No.2 were without

consideration, and hence it is held that those cannot be considered as

the sale-deeds in view of the provision of Section 54 of the Transfer of

Property Act, 1882. The Courts below have also held that the said

documents cannot be considered as "gift", as defined under

Section 122 of the Transfer of Property Act. The Trial Court found

that the defendant No.1 has become the owner of the suit property by

way of adverse possession. However, the lower Appellate Court has

failed to take into consideration this aspect of the matter, and no

finding is recorded.

3. On 4-3-2015, this Court passed an order as under :

" Issue notice to the respondent on the following questions of law :

(i) Whether the finding recorded by both the Courts as regards maintainability of the suit are legally correct?

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(ii) Whether the original plaintiff No.1 had locus to file suit

for declaration and injunction?

Notice returnable on 10/04/2015. Humdast granted for

service."

After hearing the learned counsels appearing for the parties

on the substantial questions of law, it is agreed by them that the

matter can be disposed of finally at the stage of admission, since the

substantial questions of law are already framed.

4. Hence, Admit. Heard finally by consent of the learned

counsels appearing for the parties.

5. It is not the claim of the defendants that they have become

the owners of the suit property on the basis of any document or

instrument duly registered, transferring the property in their favour by

the original owner. It is also not in dispute that in the partition

effected in the year 1958, the suit property was allotted to the share of

the plaintiff No.1. The suit in question is not for partition and

separate possession, but it is for a declaration that the plaintiff No.2

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has become the owner of the property on the basis of the registered

sale-deeds dated 30-4-2004 at Exhibits 65 and 66, said to have been

executed by the plaintiff No.1, the original owner. The defendants

have not challenged the said sale-deeds by filing a counter-claim and

claiming the relief of any such declaration. There is, however, simple

denial about the validity of the sale-deeds produced on record, which

are registered documents. The defendants claim that they are in

continuous peaceful possession of the suit property since the year

1961-62 and they have perfected the title of the suit property by way

of adverse possession.

6. In view of the aforesaid undisputed factual position, the

Courts below could not have dismissed the suit on the ground that the

plaintiffs had no locus to file the suit for the reliefs claimed. If the

plaintiffs establish their possession over the suit property, they would

certainly be entitled to claim a decree for permanent injunction

restraining the defendants from interfering with their possession over

the suit property. Apart from this, the declaration is claimed that the

plaintiff No.2 has become absolute owner of the suit property on the

basis of the two sale-deeds dated 30-4-2004. The Courts below have,

therefore, committed an error in holding that such a suit was not

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maintainable at the instance of the plaintiffs. The substantial

questions of law framed by this Court are, therefore, answered

accordingly.

7. The lower Appellate Court has not gone into the merits of the

matter, but has dismissed the appeal on the sole ground that the suit

was not maintainable at the instance of both the plaintiffs or the

plaintiff No.1 or the plaintiff No.2. The Trial Court has recorded the

finding on the aspect of possession of the suit property and it is held

that the defendants have established continuous possession since

1961-62 and thereby they have perfected their title by way of adverse

possession over the suit property. The aspect of possession has

attained the great significance, which has bearing not only on the

question of claim for decree for permanent injunction restraining the

defendants from interfering with the possession of the plaintiffs over

the suit property, but also on the aspect of perfection of title by way of

adverse possession by the defendants. The lower Appellate Court

could not have ignored this aspect of the matter and should have dealt

with the matter on its own merits recording the findings on all the

issues answered by the Trial Court. The judgment and order passed

by the lower Appellate Court cannot, therefore, be sustained and the

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matter will have to be sent back to the lower Appellate Court for

decision in accordance with law.

8. In the result, the second appeal is partly allowed. The

judgment and order dated 24-11-2014 passed by the lower Appellate

Court in Regular Civil Appeal No.128 of 2006, is hereby quashed and

set aside. The matter is remitted back to the lower Appellate Court to

decide it on its own merits in accordance with law, keeping in view

the observations made by this Court. The parties to appear before the

lower Appellate Court on 13-6-2015. The lower Appellate Court to

decide the matter within a period of six months from the date of first

appearance of the parties before it. No order as to costs.

JUDGE.

Lanjewar