Bombay High Court
Rangnath Asaram Patil & Anr vs Kalabai Laxman Patil & Ors on 4 August, 2016
Bench: T.V. Nalawade
SA No. 319/2005
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 319 OF 2005
1. Rangnath s/o. Asaram Patil,
Age 54 years, Occu. Agril.,
R/o. Gangapur, T. Gangapur,
District : Aurangabad.
2. Asaram s/o. Shamrao Patil,
(Died through his L.Rs.)
2A. Vishwanath s/o. Asaram Patil,
Died through L.Rs.
2A-1. Kamal w/o. Vishwanath Patil,
Age 70 years, Occu. Household,
R/o. 10, Shriniketan Colony,
Jalna Road, Aurangabad.
2A-2. Narendra s/o. Vishwanath Patil,
Age 40 years, Occu. Business,
R/o. 10, Shriniketan Colony,
Jalna Road, aurangabad.
2A-3. Yogesh s/o. Vishwanath Patil,
Age 35 years, Occu. Business,
R/o. 10, Shriniketan Colony,
Jalna Road, aurangabad.
2B. Dwarkadas s/o. Asaram Patil,
Age 71 years, Occu. Agril.,
R/o. Krushnapur, At Post Bidkin,
Tq. Paithan, Dist. Aurangabad.
2C. Jagganath s/o. Asaram Patil,
Age 65 years, Occu. Agril.,
Plot No. 9, Seva Nagari Society,
N-8, CIDCO, Aurangabad.
2D. Rangnath s/o. Asaram Patil
(Applicant No. 1), Age 61 years,
Occu. Agri., R/o. Gangapur,
Tq. Gangapur, Dist. Aurangabad.
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SA No. 319/2005
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2E. Eknath s/o. Asaram Patil,
Age 55 years, Occu. Business,
Plot No. 9, Seva Nagari Society,
N-8, CIDCO, Aurangabad. ....Appellants.
Versus
1. Kalabai w/o. Laxman Patil,
Age 59 years, Occu. Agril.,
and household, R/o. Patil Galli,
Gangapur, Tq. Gangapur,
District : Aurangabad.
2. Kailash s/o. Laxman Patil,
Age 32 years, Occu. Agril.,
R/o. Patil Galli, Gangapur,
Tq. Gangapur, Dist. Aurangabad.
3. Latabai w/o. Apparao Nage,
Age 34 years, Occu. Household,
R/o. Block No. 271, Flated
Building No. 1, Second Floor,
Eknathnagar, Aurangabad.
At present Alankar Housing Soci.,
Near Gajanan Maharaj Mandir,
Pundliknagar Road, Garkheda,
Aurangabad.
4. Deorao s/o. Haibati Shaikh,
Age 59 years, Occu. Agril.,
R/o. Ganeshwadi, Tq. Gangapur,
District Aurangabad.
4A. Sonabai Deorao Shelke,
Age 65 years, Occu. Household,
R/o. Ganeshwadi, Tq. Gangapur,
Dist. Aurangabad.
(Died - Order dt. 17.7.2008)
4B. Vithal Deorao Shelke,
Age 45 years, Occu. Agril.,
R/o. Ganeshwadi, Tq. Gangapur,
District Aurangabad.
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SA No. 319/2005
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5. Uttam s/o. Laxman Nirphal,
Age 39 years, Occu. Agril.,
R/o. Ganishwadi, Tq. Gangapur,
District : Aurangabad. ....Respondents.
Mr. A.S. Bajaj, Advocate for appellants.
Mr. A.V. Hon, Advocate h/f. Mr. V.D. Hon, Sr. Counsel, for
respondent No. 2.
CORAM : T.V. NALAWADE, J.
DATED : 4th August, 2016.
JUDGMENT :
1) The appeal is filed against judgment and decree of
Regular Civil Appeal No. 112/2005, which was pending in the
Court of 5th Ad-hoc Additional District Judge, Aurangabad. This
appeal was filed by the defendants of Special Civil Suit No.
41/1977, which was pending in the Court of Civil Judge, Senior
Division, Aurangabad. In the suit filed by present appellants,
plaintiffs, the decree of possession and mesne profit was given
to them by Trial Court on the basis of gift document executed by
owner of the suit property in favour of plaintiff No. 1. This
decision is set aside by the First Appellate Court. Heard both the
sides.
2) In short, the facts leading to the institution of the
appeal, can be stated as follows :-
The suit was filed in respect of agricultural land
SA No. 319/2005
Survey No. 177 situated at Gangapur, District Aurangabad. It is
contended that Shamrao was the owner of this land and few
other lands and Shamrao had died issueless. It is contended that
after the death of Shamrao, his widow Drupadabai adopted
plaintiff No. 2 - Asaram.
3) It is the case of plaintiffs that defendant No. 1, a
relative of Drupadabai, was against this adoption. Other
defendants are relatives of defendant No. 1. It is the case of
plaintiffs that there was dispute between Asaram and
Drupadabai and then Asaram had filed the suit against
Drupadabai in respect of the present suit property and all other
properties left behind by Shamrao. It is contended that in the
said suit, which was numbered as 30/1 of 1355 Fasli,
compromise took place between Drupadabai and plaintiff No. 2 -
Asaram and under the compromise, Drupadabai admitted that
Asaram was adopted by Drupadabai. It is contended that as per
the compromise, land Survey Nos. 153, 304 and 89 were given
in possession of plaintiff No. 2 as owner besides some other
properties and the suit land Survey No. 177 was given to
Drupadabai and she was to enjoy the property during her
lifetime. It is the case of plaintiffs that Drupadabai was not given
any right to alienate the property and she was to enjoy the
SA No. 319/2005
income of the property for her maintenance. It is the case of
plaintiffs that after the death of Drupadabai, property was to
revert back to Asaram.
4) Drupadabai expired on 9.5.1974. It is the case of
plaintiffs that Drupadabai was having love and affection towards
plaintiff No. 1, who is son of plaintiff No. 2 and so, she gave the
suit property by way of gift to plaintiff No. 1 under gift deed
dated 16.2.1974. It is contended that the said gift was accepted
by plaintiff No. 1 and under the gift, plaintiff No. 1 had taken the
possession of the property.
5) It is the case of plaintiffs that on 19.1.1976
defendants illegally entered the suit land and they gave threat of
dispossession. It is contended that initially suit bearing R.C.S. No.
7/1976 was filed for relief of injunction and during pendency of
the suit, plaintiffs lost the possession to defendants as no
temporary injunction was granted in their favour. It is contended
that due to this circumstance, they were required to file present
suit for relief of possession. They contended that in suit filed for
injunction, defendant No. 1 had falsely contended that under
oral contract the suit land was given for cultivation to
defendants by Drupadabai on Batai ( cVkbZ ) basis in 1968. It is
SA No. 319/2005
contended that some record is created by defendants to show
that they are in possession, but that false record is created by
joining hands with Talathi. It is contended that Shamrao,
adoptive father of plaintiff No. 2 and Yeshwant, father of
defendant No. 1 - Laxman were real brothers and so, they want
to grab the suit property. Thus, relief of possession was claimed
by the two plaintiffs under their different rights like right of
plaintiff No. 1 under gift document and right of plaintiff No. 2 as
successor of Drupadabai.
6) The defendants contested the matter by filing
written statement. They denied everything. They denied that
Drupadabai had made gift of suit property in favour of plaintiff
No. 1 and possession was given by Drupadabai to plaintiff No. 1.
7) It is the case of defendants that in the year 1968, in
presence of witnesses, who include some defendants, the
possession was given by Drupadabai to defendant No. 1 and he
was expected to cultivate the land as tenant of Drupadabai. It is
contended that during lifetime of Drupadabai, defendant No. 1
cultivated the land as her tenant and plaintiffs were never taking
care of Drupadabai. It is contended that right from the
beginning, from 1968, defendant No. 1 was in possession, but
SA No. 319/2005
false suit was filed for relief of injunction by plaintiff No. 1
bearing R.C.S. No. 7/1976. Thus, the defendants tried to protect
the possession by contending that they are tenants in
possession.
8) Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence. The Trial Court held
that the plaintiffs have proved that property was gifted by
Drupadabai in favour of plaintiff No. 1. The Trial Court held that
defendants are not tenants as the said point is already decided
by competent authority against the defendants. By giving such
finding, the suit was decreed in favour of plaintiff No. 1. The First
Appellate Court has held that Asaram was duly adopted by
Drupadabai, but plaintiff No. 1 failed to prove that he had
accepted the gift. The First Appellate Court has further held that
as cross-objection or cross-appeal was not filed against decision
of Trial Court by which relief was refused to plaintiff No. 2, it was
not possible to decree the suit in favour of plaintiff No. 2, the
adoptive son of Drupadabai.
9) This Court admitted the appeal on 1.8.2008 on
following substantial questions of law :-
SA No. 319/2005
(A) When gift-deed is not held to be proved, whether
appellants can claim right to the suit property by
inheritance ?
(B) Whether omission to challenge decree in the
District Court would disentitle the appellants from
getting relief of possession ?
Additional Substantial question of law :-
(C) Whether, the District Court has committed error
in holding that 'gift' is not proved by plaintiff No. 1 ?
10) The nature of pleadings in written statement show
that defendants cannot retain the possession of the suit property
and the owner of the suit property is entitled to get possession
from the defendants. In view of this circumstance, it was
sufficient for either plaintiff No. 2 or plaintiff No. 1 to prove that
plaintiff No. 2 was adoptive son of Drupadabai or property was
gifted to plaintiff No. 1 by Drupadabai. Plaintiff Nos. 1 and 2 are
sons and father and their interests are not conflicting with each
other. The Trial Court had held that the decree of suit No. 30/1 of
1355 Fasli is not binding on defendants. However, it was held
that the gift in favour of plaintiff No. 1 was proved and so, the
suit was decreed in favour of plaintiff No. 1. It is not disputed by
defendants that there was a suit between Drupadabai and
SA No. 319/2005
plaintiff No. 2 in which adoption of plaintiff No. 2 by Drupadabai
was in question. It is also not disputed that in the said suit,
compromise had taken place between Drupadabai and plaintiff
No. 2. Copy of the decision given in the said suit is produced on
record. Though this Court could not find translation either in
English or in Marathi of the said document, in the evidence, son
of defendant No. 1 has stated that Drupadabai used to tell them
that adoption was false. He has given evasive answers in respect
of the effect of decision of the previous suit like the some
properties which were standing in the name of Drupadabai were
transferred in the name of plaintiff No. 2.
11) On the other hand, there is specific evidence of
plaintiff No. 2 - Asaram on aforesaid points in addition to copy of
decision given by Civil Court on the basis of compromise. The
said copy of compromise was produced on the record and is
given Exh. 79. The Trial Court had accepted that under this
compromise, suit property was left with Drupadabai, but only
because the defendants were not party to the suit, it was held
that the decision of the previous suit was not binding on the
defendants. Under Hindu Law, Drupadabai was competent to
take plaintiff No. 2 in adoption and she had accepted the fact of
adoption in previous suit. This adoption was accepted by
SA No. 319/2005
Drupadabai in 1355 Fasli, but that decision was never challenged
by the defendants, if they were entitled to succeed to the
property after Drupadabai. Steps were taken on the basis of said
compromise and most of the properties which were standing in
the name of Drupadabai were given to the share of plaintiff No.
2. In view of these circumstances, it cannot be said that the said
decision is not binding on defendants. Thus, the Trial Court ought
to have held that plaintiff No. 2 was validly adopted by
Drupadabai. The First Appellate Court has given such finding, but
the First Appellate Court has not protected the decree on that
ground. Further, the provision of section 14 (2) of Hindu
Succession Act, 1956 would have helped plaintiff No. 2 if under
compromise decree rights of Drupadabai were restricted.
12) The defendants have not disputed that Drupadabai
had executed registered gift document in favour of plaintiff No.
2. There is evidence of plaintiff No. 1 on the gift and on
acceptance of gift and plaintiffs have examined one Sheshrao
Bhagwat, attesting witness, on the gift document. The gift
document is proved as Exh. 82.
13) The First Appellate Court has held that plaintiff No. 1
has failed to prove that he had accepted the gift. The reasoning
SA No. 319/2005
given by the First Appellate Court are not convincing. The First
Appellate Court has discarded the evidence on gift on following
grounds :-
(i) There was a condition that in old age of
Drupadabai, Rangnath, plaintiff No. 1 was to maintain
her.
(ii) She has admitted that there was some
misunderstanding between her and Asaram in the past,
but that dispute was settled by her. The First Appellate
Court has held that there is nothing on the record to
show that the relations between plaintiff No. 2 and
Drupadabai had improved and this is observed in view
of the circumstance that in the suit of 1967, Asaram
had challenged the transfer of one house property by
Drupadabai. In view of these circumstances, the
District Court has held that it is not possible that
Drupadabai had inclination to give the property to son
of Asaram.
(iii) The circumstance that in the gift document, the
property already transferred by Drupadabai is also
shown to be given to plaintiff No. 1.
14) If the provisions of Transfer of Property Act like
SA No. 319/2005
sections 122 and 123 are kept in mind, it can be said that there
is record like registered gift document which is duly proved and
there is the evidence of donee to the effect that he had accepted
the gift. Before Sub-Registrar, Drupadabai admitted that she had
given the property by way of gift to donee mentioned in the
document and she had mentioned in the document itself that
plaintiff No. 1 had accepted the gift. The 7/12 extracts show that
the name of Rangnath was entered in the revenue record as
owner, though the 7/12 extracts also show that name of
defendant No. 1 was there in the crop cultivation column from
1968-69. This evidence is sufficient to infer that the gift was
accepted by Rangnath. In any case, the property would have
came to Asaram, if plaintiff No. 1 was not able to prove that
there was valid gift in his favour and he had accepted it. The so
called admission given before Tenancy Court by Asaram about
the possession of defendants over the suit property cannot make
much difference when Civil Court is considering the suit for
possession on the basis of title.
15) When the decree was challenged by original
defendants in District Court, it was open to Asaram to argue
against the finding given by the Trial Court that the decision of
the previous suit of 1355 Fasli is not binding on the defendants
SA No. 319/2005
i.e. the adoption was admitted by Drupadabai. Surprisingly, the
First Appellate Court has held that it was necessary for Asaram
to file cross-objection or cross-appeal to challenge that finding. It
can be said that there was alternate relief claimed on the
aforesaid two grounds by father and son and in any case, they
were bound to succeed. In the appeal, Asaram was respondent
and this point was argued for Asaram and so, it was not proper
on the part of First Appellate Court to hold that Asaram ought to
have challenged the decree by filing cross-appeal or cross-
objection. Asaram and his sons were together and they had no
conflicting interests.
16) On the aforesaid points, the learned counsel for
appellants, original plaintiffs placed reliance on the cases like
(1999) 4 Supreme Court Cases 423 [Superintending
Engineer and ors. Vs. B. Subba Reddy], (1999) 7 SCC 435
[Ravinder Kumar Sharma Vs. State of Assam and ors.] and
AIR 2002 SUPREME COURT 2562 [Nalakath Sainuddin Vs.
Koorikadan Sulaiman]. In the first case, the Apex Court has
discussed the entire law developed on the provision of Order 41,
Rule 22 of Civil Procedure Code and the principles which emerge
are quoted in para No. 23. It is made clear that if the
respondents do not want modification of the decree and they
SA No. 319/2005
want only to support the decree, they can argue against the
finding given by the Trial Court which could have also been base
for giving decree and for that, it is not necessary for them to file
cross-objection or cross-appeal. In the present case also, the
present appellants did not want modification of the decree,
though in strict sense, it can be said that the claim of plaintiff
No. 2 of possession on the basis of his title as successor of
Drupadabai was not accepted. That was clear error on the part
of Trial Court and that is already discussed. Similar observations
are made in the remaining two cases by the Apex Court. The
learned counsel for appellants argued on provisions of Order 41,
Rule 33 of Civil Procedure Code also, but there is no need of
consideration of that provision in view of the aforesaid rights of
appellants.
17) The discussion made above shows that in any case,
plaintiffs were bound to succeed. This Court holds that, due to
absence of objection of plaintiff No. 2, Drupadabai was
competent to give the property by way of gift to plaintiff No. 1
and as the valid gift is proved in favour of plaintiff No. 1, the
decree which was given by the Trial Court needs to be restored.
In the result, following order.
SA No. 319/2005
ORDER
Appeal is allowed. Judgment and decree delivered by the
District Court in Regular Civil Appeal No. 112/2000 is hereby set
aside. The decision of the Trial Court given in Special Civil Suit
No. 41/1977 is restored.
[ T.V. NALAWADE, J. ]
ssc/
