Bombay High Court
Dashrath S/O Domaji Kamble vs Tuwaluji S/O Shrawan Wankhede And ... on 6 December, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.297 OF 2014
Dashrath s/o Domaji Kamble
Aged about 60 years,
Occ: Retired, R/o Allipur,
Tahsil Hinganghat,
District Wardha. ....... APPELLANT
...V E R S U S...
1] Tuwaluji s/o Shrawan Wankhede,
Aged about 65 years, Occ: Labourer,
R/o Allipur, Tahsil Hinganghat,
District Wardha.
2] Smt. Bebitai w/o Dronachari Doye,
Aged Adult, Occ: Household work,
R/o In the house of Kishor s/o Mahadeo
Kamble, R/o Kangaon, Tah. Hinganghat,
District Wardha.
3] Surekha w/o Ramdas Narayne,
Aged Adult, Occ: Household work,
R/o Sant Kabir Ward, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
4] Sangita w/o Dhyaneshwar Babhale,
Aged Adult, Occ: Household work,
R/o Nalwadi, Tah. & Dist. Wardha.
5] Kishor s/o Mahadeo Kamble,
Aged Adult, Occ: Cultivator,
R/o Kangaon, Tah. Hinganghat,
District Wardha.
Res. No.6 is
6] Zingubai w/o Mahadeorao Kamble,
deleted as per Aged Adult, Occ: Household work,
Registrar (J)
order dt. 9/6/16.
R/o Allipur, Tahsil Hinganghat,
District Wardha. ....... RESPONDENTS
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Shri S.D. Malke, Advocate for Petitioner.
Mrs. A.A. Kale, Advocate for Respondent No.1.
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CORAM: R.K. DESHPANDE, J.
th DECEMBER, 2016.
DATE: 6
ORAL JUDGMENT
1] The trial Court passed a decree on 03.10.2008 in
Regular Civil Suit No.171 of 1995 granting a declaration that the
sale-deed dated 02.04.1994 is illegal and void. The trial Court
further granted the relief and passed a decree for permanent
injunction restraining the defendants from making illegal
construction over the suit property and disturbing the possession
of the plaintiff over the suit property.
2] Regular Civil Appeal No.259 of 2008 has been
allowed by the lower Appellate Court on 28.02.2014. The decree
passed by the trial Court has been set aside and the suit has been
dismissed. It is the original plaintiff who is before this court.
3] The plaintiff claimed ownership and possession of the
suit property on the basis of sale-deed dated 07.10.1962 at
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Exhibit-66 said to have been executed in favour of his father by
Hiraman and the suit challenged the registered sale-deed dated
02.04.1994 in respect of the same property executed by the
defendant No.2-Mahadeo in favour of defendant No.1. The lower
Appellate Court has held that the sale-deed dated 07.10.62 at
Exhibit-66 is not admissible in evidence as it is an unregistered
document. It is not in dispute that the suit property was of the
value more than Rs.100 as on 07.10.1962, and it the sale-deed
was therefore, required to be compulsorily registered under
Section 17 of the Registration Act. Once it is held that the
sale-deed dated 07.10.1962 was not admissible in evidence, the
plaintiff was not entitled to any relief and no substantial question
of law arises for consideration by this Court in this second appeal.
4] Shri Malke, the learned counsel appearing for the
appellant submits that the plaintiff is in possession of the suit
property, whereas the learned counsel for the respondent No.1
submits that it is the respondent No.1-the original defendant who
is in possession of the suit property. If it is a case of the plaintiff
that he has perfected the title by way of adverse possession, it is
open for him to raise such a plea in appropriate proceeding in
which the disputed question of fact regarding possession of the
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property can be resolved. The second appeal is dismissed.
JUDGE
NSN
