Bombay High Court
Shriram Horaji Dhole vs Rajaram Ganji Khirde And Others on 13 December, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.380 OF 1991
Shriram Horaji Dhole (since dead)
1] Govinda Shriram Dhole,
Aged about 60 years,
Occ: Agril.
2] Uttam Shriram Dhole,
Aged 55 years,
Occ: Agril.
3] Kashinath Shriram Dhole,
Aged 50 years.
4] Narayan Shriram Dhole,
Aged 40 years.
5] Sau. Kasabai Babaram Thakre
Aged 65 yers.
Applicant No.1 to 5 R/o Jambhroon
Jahahir, Post Pardi Asra,
Tq. & Dist. Washim.
6] Sau. Shantabai Tulsiram Wankhede
62 yrs., R/o Kanshioni,
Tq. & Dist. Akola.
7] Smt. Kamlabai Ramdas Waghmare,
Aged 61 years,
R/o Kanshioni, Tq. & Dist. Akola.
8] Sau. Vimlabai Madhukar Dahatre,
Aged 42 yrs, R/o Warangi,
Tq. Malegaon, Dist. Washim.
....... APPELLANTS
...V E R S U S...
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1] Rajaram Ganuji Khirade (since dead)
L.R's of Respondent No.1.
1] Leelabai wd/o Rajaram Khirade,
Aged about 60 years, Occ: Household,
R/o Chambahi, Post Pardi Tad,
Tah. Mangrulpir, Dist. Washim.
2] Bhaurao s/o Rajaram Khirade,
Aged about 48 years,
Occ: Agriculturist, R/o Pogat,
Post Pogat, Tq. Mangrulpir,
Dist. Washim.
3]
Yamunabai Bapurao Thombare,
Aged about 35 years,
Occ: Household, R/o Hiwra,
Post Shegi, Tq. Mangrulpir,
Dist. Washim.
4] Shantabai Motiram Khandare,
Aged about 60 years,
Occ: Household, R/o Jambhroon
Jahagir, Post Pardi Asra,
Tq. & Dist. Washim
5] Parvatabai Sitaram Khandare
Aged about 40, Occ: Household,
R/o Jambhroon Jahagir,
Post Pardi Asra,
Tq. & Dist. Washim.
2] Smt. Subhadrabai wd/o Sakharam
Khandare thr. LR's.
1] Motiram s/o Sakharam Khandare
(since dead)
LR's of Respondent No.2 (1)
2(1)(i) Navnath Motiram Khandare,
Aged about 35 years,
Occ: Agriculturist.
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2(1)(ii) Smt. Shantabai wd/o Motiram
Khandare, aged about 60 years,
Occ: Household.
Both R/o Jambhrun Jahangir,
Post Pardi Assara, Tq. & Dist. Washim.
2] Sitaram s/o Sakharam Khandare
(since dead)
LR's of Respondent No.2 (2)
1] Kailash s/o Sitaram Khandare
Aged about Major,
igOcc: Agriculturist.
2] Digambar s/o Sitaram Khandare
Aged about Major,
Occ: Agriculturist.
3] Radhabai wd/o Sitaram Khandare
(since dead)
All R/o Jambrun Jahangir,
Tah. Washim, Post: Pardi Assare,
Dist. Akola.
LR's of Respondent No.2(2)(3)-a
2(2)(3)-a) Parvatabai d/o Sitaram Khandare
R/o Jambhurn Jahangir, Post Pardi
Assara, Tq. & Dist. Washim.
3] Vishwanath Kisan Bhagat
(since dead)
4] Mahadeo Kisan Bhagat
(since dead)
5] Yadav Kisan Bhagat
(since dead)
6] Vithal Kisan Bhagat
(since dead) ....... RESPONDENTS
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Shri S.R. Deshpande, Advocate for Appellants.
Shri K.P. Mahalle, Advocate h/f Shri R.L. Khapre, Advocate
for Respondent Nos.1 & 6.
Shri V.B. Gawali, Advocate for Respondent No.2(1) & 2(2).
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CORAM: R.K. DESHPANDE, J.
th DECEMBER, 2016.
DATE: 13
ORAL JUDGMENT
1]
On 20.02.1986, the trial Court dismissed Regular
Civil Suit No.59 of 1983 simpliciter for grant of permanent
injunction restraining the defendants from interfering with the
possession of the plaintiff over the suit property. The lower
Appellate Court has dismissed Regular Civil Appeal No.71 of 1989
on 18.06.1991. Hence, this appeal by the original plaintiff against
the concurrent findings of fact recorded by the Courts below.
2] Since the suit was simpliciter for grant of permanent
injunction on the basis of previous possession of the plaintiff, the
fact of possession becomes relevant. Though, the trial Court
records the finding that at the most it can be said on the basis of
the crop statements that on the day of filing of the suit, the
plaintiff was in possession of the suit land, it further records the
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finding that the possession of the plaintiff has not been proved to
be legal and valid. The lower Appellate Court has held that there
is no evidence on record to show that the lease was created in
favour of the plaintiff in the year 1970 as alleged and also there is
no evidence to show the possession of the plaintiff over the suit
land since 1970.
3] On 20.11.1991 the second appeal was admitted by an
order which is reproduced below:
Heard. Admit as the substantial question of law
which arises for consideration is whether the finding of
fact rendered by the appellate court would be binding
on this court on account of the omission on the part of
the first appellate court to decide the appellant's
application for tendering the additional evidence under
Order 41, Rule 27 of the Civil Procedure Code.
No interim relief.
4] The very basis of the claim of the plaintiff for
possession is the batai patra dated 16.11.1981 said to have been
executed by the defendant No.1-Rajaram in his favour. The courts
have held that the document is inadmissible in evidence for want
of registration. The plaintiff filed an application under Order 41,
Rule 27 of the Code of Civil Procedure before the lower Appellate
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Court for grant of permission to produce the document of batai
patra and also a copy of the plaint in M.J.C. No.44 of 1995 filed in
the Court of Civil Judge, Senior Division, Washim in which the
defendant No.1-Rajarama clearly expressed that the plaintiff was a
tenant in respect of the suit field and he cultivated the field on
batai. I have also gone through the batai patra which is marked as
Article 'A' before the trial Court.
5]
One Yogaji Dongre was the owner of the suit
property. Smt. Draupadabai was his widow. The defendant
No.1-Rajaram is the son of Smt. Draupadabai from first husband
and the defendant Nos.2 to 4 are the sons of Yogaji Dongre.
The plaintiff claims to be in possession of suit land from
Smt. Draupadabai since 1970 which fact has not been established
on the basis of Batai Patra, the plaintiff claimed to be in
possession from the defendant No.1 w.e.f. 16.11.1981. A decree
for permanent injunction is claimed against defendant Nos.2 to 4.
The defendant No.1 did not contest the suit.
6] There is absolutely no evidence brought to notice of
this Court that the plaintiff was a tenant and in possession of the
suit property from 1970 from Smt. Draupadabai, who died in the
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year 1975. Except the crop statement for the year 1980-1981
there is nothing on record to show that the plaintiff had been in
possession of the suit field, at any point of time. Batai patra is
dated 16.11.1981, in which it is stated that the plaintiff is
cultivating the suit field from 31.03.1980. The Court has also held
that the document create a lease for a period of more than one
year and since it is not registered, the same is inadmissible in
evidence. Apparently, the document which is a batai patra at
Article 'A' is prepared subsequently 16.11.1981 and by that time a
period of one year was over. The defendant No.1-Rajaram, who is
said to have executed batai patra has not entered the witness box
nor the plaintiff has examined him to prove batai patra.
The Courts below have taken a possible view of the matter that
the plaintiff has failed to establish possession over the suit
property. No substantial question of law arises for consideration.
The second appeal is dismissed.
7] In view of above, neither the office objections survive
nor the question of abatement. The civil applications do not
survive. The same stand disposed of.
JUDGE
NSN
