Bombay High Court
Kisan S/O Vithoba Harode (Dead) ... vs Govinda S/O Tularam Balgote ... on 20 April, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.424 OF 2014
Kisan s/o Vithoba Harode (dead)
Thr. L.Rs.
1. Kishor s/o Kisan Harode
Aged about 69 years,
Occ. Business,
2. Puran s/o Kisan Harode,
Aged about 64 years,
Occ. Business,
3. Drupat s/o Kisan Harode,
Aged about 61 years,
Occ. Business,
4. Ganesh s/o Kisan Harode,
Aged about 54 years,
Occ. Business,
5. Janki wd/o Pitamber Basotiya
Aged about 72 years,
Occ. Agriculturist, R/o Matatoli
Gondia, Tah. & Dist. Gondia
6. Jijabai w/o Nathu Zade
Aged about 56 years,
Occ. Agriculturist, R/o Nahbi,
Tah. Tamtek, dist. Nagpur
Appellant Nos.1 to 6 Through
Power of Attorney holder
Ganesh Kisan Narode. ... Appellants.
-vs-
Govinda s/o Tularam Balgote (dead)
Thr. L.Rs.
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1. Shakuntalabai wd/o Govinda Balgote
Aged about 79, Occ. Household,
2. Gajanan s/o Govinda Balgote,
Aged about 69 years, Occ. Not known
Nos.1 and 2 R/o Dudhala, Tah. Ramtek,
Dist. Nagpur.
3. Saraswatibai w/o Radheshyam Harode,
Aged about 56 years, Occ. Business.
4. Harichand s/o Govinda Balgote,
Aged about 55 years, Occ. Not known.
5. Tarachand s/o Govinda Balgote,
Aged about 77 years, Occ. Not known.
6. Narayan s/o Govinda Balgote,
Aged 44 years, Occ. Not known.
7. Chunnilal s/o Govinda Balgote,
Aged about 52 years, Occ. Not known.
Nos. 4 to 7 R/o Dudhala, Tah. Ramtek,
Distt. Nagpur.
8. Mangala w/o Raju Badule,
Aged about 42 years, Occ. Housewife,
R/o Borda Ganesh, Tah. Parseoni,
Distt. Nagpur.
9. Gita w/o Ajay Mayawade,
Aged about 51 years, Occu. Housewife,
R/o Amdi, Tq. Parseoni, Distt.Nagpur. ... Respondents.
Shri M. R. Johrapurkar, Advocate for appellants.
Shri G. M. Shitut, Advocate for respondent Nos.1 and 4.
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CORAM : A.S.CHANDURKAR, J.
DATE : April 20, 2016
Oral Judgment :
Admit.
Heard finally with consent of learned counsel for the parties.
The following substantial question of law arises in this second appeal :
" Whether the appellate Court has taken into consideration the
entire evidence available on record while deciding the appeal and
whether this decision is in accordance with provisions of Order XLI
Rule 31 of the Code of Civil Procedure, 1908 ? "
2. The appellant is the original plaintiff who had filed suit for
possession of field Survey No.226 admeasuring 1H 16 R. According to the
original plaintiff-Kisan, part of the suit property which was ancestral in
nature was in occupation of the original defendant without any authority of
law. By claiming the same to be ancestral property, said Kisan Harode filed
R.C.S. No.24 of 2000. In the written statement, it was stated by the original
defendant that the plaintiff alone was not the owner of the suit property It
was however not disputed that the suit property was ancestral property. A
further stand was taken that by virtue of document dated 07/07/1953, the
property had been purchased by the original defendant.
3. The trial Court after considering the evidence on record dismissed
the suit holding that the plaintiff had failed to prove title to the suit property.
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Being aggrieved, the legal heirs of the original plaintiff filed an appeal and
by the impugned judgment the appeal has been dismissed.
4. Shri M. R. Johrapurkar, the learned counsel for the appellant
submitted that the appellate Court has not considered various grounds raised
by the appellant in support of the appeal. He submitted that the document at
Exhibit-75 was challenged by the appellants as one not being a sale deed as
there was no recital that the entire consideration was paid. He further
submitted that the stand taken by the original defendant in the written
statement regarding the suit property being ancestral had not been
considered. According to him, though seven points were framed by the
appellate Court while deciding the appeal, the relevant material on record
has not been taken into consideration. It is therefore submitted that the
impugned judgment is liable to be set aside.
5. Shri G. M. Shitut, the learned counsel for the respondents
supported the impugned judgment. According to him, the appellate court
rightly considered the document at Exhibit-75 and held against the appellant.
He submitted that the documents showing payment of tax by the original
defendant indicated that the title was not with the original plaintiff.
6. Having perused the records of the case as well as the judgment of
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the trial Court, it can be seen that in paragraph 1 of the plaint, the source of
title has been pleaded by the original plaintiff. In the written statement it
has not been disputed that the field in question was ancestral property. In
that context, the document dated 07/07/1953 assumes importance as the
respondents are claiming title to the said property on the basis of that
document dated 07/07/1953. The trial Court after considering the evidence
has held the said document to be a sale deed. This finding was specifically
challenged by the appellant by raising ground Nos. 7 and 8 in the
memorandum of appeal. It is their specific case that said document indicates
payment of earnest amount of Rs.25/- and there is no recital about the
payment of balance amount of Rs.25/-. According to them, said document
could not be treated to be a sale deed. These aspects were required to be
considered by the appellate Court while deciding the appeal. The findings
recorded by the appellate Court in paragraphs 8 and 9 of the impugned
judgment fall short of the requirements of provisions of Order XLI Rule 31
of the Civil Procedure Code, 1908. It was necessary for the appellate Court
to have considered the challenge raised to the document at Exhibit-75 and a
finding in that regard ought to have been recorded. As this has not been
done, the impugned judgment is liable to be set aside on that count.
The substantial question of law as framed is answered by holding
that the appellate Court has not taken into consideration the entire evidence
on record and has not decided the appeal as required by the provisions of
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Order XLI Rule 31 of the Code.
7. In view of aforesaid the following order is passed :
(i) The judgment dated 26/04/2014 in R.C.A. No.55 of 2011 is
quashed and set aside.
(ii) The proceedings are remitted to the appellate Court for fresh
consideration in accordance with law. The parties undertake to
appear before the appellate Court on 13/06/2016. The appeal be
decided expeditiously and by the end of September 2016.
(iii) It is clarified that this Court has not expressed any opinion on the
findings recorded by the trial Court and the appellate Court shall
decide the appeal in accordance with law.
(iv) The second appeal is allowed in aforesaid terms with no order as
to costs.
JUDGE
Asmita
