Bombay High Court
Sopan Narayan Kakde vs Gangakisan Hiralal Somani & ... on 16 December, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 113 OF 2001
Sopan Narayan Kakde,
aged about 70 years, Occ. Cultivator,
R/o., Dhanora Bk. Tq. Washim,
Distt. Washim ...... APPELLANT
...VERSUS...
1].
Gangakisan Hiralal Somani,
since deceased through L.Rs
(a) Smt. Godawaribai Gangakisan Somani,
aged about 65 years, Occ. Household,
(b) Ramesh Gangakisan Somani,
aged about 45 years,
(c) Nirmal Gangakisan Somani,
aged 47 years,
(d) Ramchandra Gangakisan Somani,
since deceased, through L.Rs
(1d-1)Sagar Ramnchandra Somani
aged 26 years, Occ. Student,
R/o. Someshwar Colony, Behind Kala
Mandir, Nanded, Tah. & Distt. Nanded.
(1d-2)Deeraj Ramchandra Somani,
aged 23 years, Occ. Student,
R/o. Someshwar Colony, Behind Kala
Mandir, Nanded, Tah. & Distt. Nanded
(e) Smt. Aruna Subhashcnadra Somani,
aged about 45 years,
(f) Sujit Subhashchandra Somani,
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aged about 20 yeas,
(g) Sumit Subhashcnadra Somani,
aged about 16 years,
(h) Sonal Subhashchandra Somani,
aged about 19 years,
No. 1(g) is minor through his G.A. next
friend Sau. Aruna Subhashchandra Somani.
All resident of Deopeth, Washim,
Tq. And Distt. Washim.
2] Radhakisan Hiralal Somani,
since deceased, through L.Rs
(2-a) Ananda Radakisan Somani,
aged 40 years, Occ. Business,
R/o. Near Hanuman Mandir,
Devpeth, Washim, Tq. & Distt. Washim.
3] Gopikisan Hiralal Somani
since deceased, through L.Rs.
(3-a) Damodhar Gopikisan Somani,
since deceased through L.Rs.
(3a-1)Smt. Pramila Damodhar Somani,
aged 55 years, Occ. Household,
(3a-2)Govind Damodhar Somani
aged 23 years, Occ. Student,
(3a-3)Ku. Sapana Damodhar Somani,
aged 25 years, Occ. Household,
(3a-4)Ku. Appu Damodhar Somani,
aged 24 years, Occ. Household,
All R/o. Ganeshpeth at Washim,
Tq. And Distt. Washim.
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(3-b) Pandhari Gopikisan Somani,
aged 45 years, Occ. Business,
R/o. Devpeth, Washim, Tq. And Distt. Washim.
4] Puranmal Hiralal Somani,
aged about 55 years, R/o. Nanded,
Tq. And Distt. Nanded. ...... RESPONDENTS
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Shri V.G.Wankhede, counsel for appellant..
Shri A.D.Girdekar, counsel for Respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 16 DECEMBER, 2016 .
ORAL JUDGMENT
1] The trial Court dismissed the Regular Civil Suit
No. 166 of 1995 filed by the plaintiff for possession of field
Survey No. 36/2 from the defendant by its judgment and
order dated 17.08.21998. The lower appellate Court has
allowed the Regular Civil Appeal No. 94 of 1998 by its
judgment and order dated 14.02.2001 and a decree for
possession has been passed in favour of the plaintiff and
against the defendant. The original defendant is before this
Court in this second appeal.
2] The matter was admitted on 06.12.2001 on the
following substantial question of law;
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"Whether the appellant can claim title over
the suit land by adverse possession.
The stay to the execution of decree for
possession was also granted.
3] The title of the plaintiff over the suit property is
not in dispute. The case of the plaintiff was that the land is
situated at village Dhanora Bk., Tq. And Distt. Washim, and
the plaintiff was residing at Nanded and Washim. The suit
land was being cultivated with the help of the defendant.
However, the defendant taking advantage of the relations
between the parties and the faith of the plaintiff, entered his
name falsely in the crop statements for some of the years
and claimed exclusive possession by way of ownership on
the suit field from the year 1995-96. Hence, suit for
possession was filed on 17.07.1995.
4] The stand of the defendant was that one
Balkisan was the tenant in respect of the suit field from whom
he purchased it for an amount of Rs.4,000/- by way of oral
sale deed dated 07.05.1972. Relying upon certain crop
statements, he has urged that the defendant was in
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continuous possession of the suit property from 07.05.1972
till the date of filing of the suit and thereafter also.
5] The trial Court ought to have taken into
consideration the fact that there is no evidence, oral as well
as documentary, placed on record, to hold that the defendant
has perfected the title over the suit property by way of
adverse possession. The lower appellate Court has reversed
that finding and it is held that the defendant has not only
failed to establish his stand before the trial Court, but his
physical possession over the suit property for a period of one
year has also not been established. The lower appellate
Court has, therefore, held that the defendant has failed to
establish that he perfected the title by way of adverse
possession.
6] With the assistance of the learned counsels
appearing for the parties, I have gone through the pleadings
and evidence on record. The title of the plaintiffs over the
suit property is not in dispute and therefore, the defendant
would succeed in the matter only if he establishes his
adverse possession for a period of more than 12 yeas. The
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defendant claimed to have entered into the possession of the
suit property from one Balkishan Sharma. The defendant
has not examined Balkishan Sharma to prove the fact that he
was put in possession of the suit property. The defendant
raised a plea of ownership on the basis of oral sale deed
dated 07.05.1972 and such a plea cannot be accepted for
two reasons i.e. (i) the sale of suit property is not a written
sale deed and (ii) such sale deed is required to be registered
since the value of the property was more than Rs.100/-, but it
has not been registered. Merely because for certain period,
the plaintiff is shown to be in possession of the suit property
in the 7/12 extract, that by itself would not be enough to
establish the title by way of adverse possession. The lower
appellate Court has taken into consideration the entire
evidence available on record and a possible view in the
matter has been taken. The substantial question of law
framed by this Court does not at all arise for consideration.
The second appeal is dismissed. No order as to costs.
JUDGE
Rvjalit
