Bombay High Court
Ramdas Shankarrao Dhumal And ... vs Ajay Shankarrao Dhumal And ... on 23 December, 2016
Bench: P.R. Bora
1 AO 55/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.55 OF 2016
WITH
CIVIL APPLICATION NO.12310/2016
1) Ramdas Shankarrao Dhumal
Age: 62 Yrs., occu. Agril.
R/o 1736, Near Deep Bunglow,
Model Colony, Pune.
AND
At post Mamdapur,
Tq. Rahata, Dist. Ahmednagar.
2)
Aruna Ramdas Dhumal,
Age: 57 Yrs., occu. Agril.
R/o 1736, Near Deep Bunglow,
Model Colony, Pune.
AND
At post Mamdapur,
Tq. Rahata, Dist. Ahmednagar.
= APPELLANTS
VERSUS
1) Ajay Shankarrao Dhumal
Age: 56 Yrs., occu. Business,
R/o Goregaon (E)
Mumbai.
2) Surekha Ajay Dhumal
Age: 52 Yrs., occu. Business,
R/o Goregaon (E)
Mumbai.
Through General Power of Attorney
Holder - Gajanan Shankarrao Dhumal,
R/o Kolhar (Bk.), Tq.Rahata,
Dist.Ahmednagar. = RESPONDENTS
-----
Mr. PM Shah, Sr.Counsel for Appellants;
Mr. GG Deshpande, Advocate for Respondents.
-----
::: Uploaded on - 24/12/2016 ::: Downloaded on - 25/12/2016 01:11:37 :::
2 AO 55/2016
CORAM : P.R.BORA, J.
DATE OF RESERVING JUDGMENT: 22
nd
NOVEMBER,2016
DATE OF PRONOUNCING JUDGMENT: 23
rd
DECEMBER,2016
JUDGMENT:
1) The order passed by District Judge-2,
Kopargaon below Exhibit-5 in Regular Civil Appeal
No.40/2016 on 4th August, 2016 is challenged in
the present appeal. ig The parties to the present
appeal are referred to by their original status
in the civil suit.
2) Facts, in brief are thus, - Plaintiffs
have filed the aforesaid appeal challenging the
Judgment and order passed by Joint Civil Judge,
Junior Division, Rahata on 21st April, 2016 in
Regular Civil Suit No.131/2013. The plaintiffs
had filed the aforesaid suit seeking perpetual
injunction against the defendants, restraining
them from disturbing possession of the plaintiffs
over the suit properties.
. In the aforesaid civil suit, the
plaintiffs had also prayed for interim
3 AO 55/2016
injunction. The said application was rejected by
the trial court. The plaintiffs preferred Misc.
Civil Appeal No.2/2015 against the said order
before the District Court. The District Court
allowed the said appeal and granted interim
injunction in favour of the plaintiffs thereby
restraining the defendants from obstructing the
possession of the plaintiffs over the suit
properties till decision of the said suit. The
order passed by the District court was challenged
by the defendants before this Court by filing
writ petition No. 659/2015. This court, however,
did not cause any interference in the order
passed by the District Court.
. Thereafter, the suit was proceeded
further and after having assessed the oral as
well as documentary evidence brought on record
before it, the learned trial court, vide its
judgment delivered on 21st April, 2016, dismissed
the said suit. Aggrieved by, the plaintiffs have
filed the aforesaid Regular Civil Appeal in the
district court at Kopargaon. In appeal, the
4 AO 55/2016
plaintiffs filed an application seeking interim
injunction thereby restraining the defendants
from disturbing their alleged possession over the
suit properties till decision of the appeal. The
application was strongly resisted by the
defendants. The learned District Judge however
has allowed the said application vide order dated
4th August, 2016. The defendants have preferred
the present Appeal against the said Order.
3) Shri P.M.Shah, learned Sr.Counsel
appearing for the appellants, assailed the
impugned order on various grounds. The learned
Sr.Counsel submitted that in spite of a clear
finding recorded by the learned trial court after
a full-fledged trial that the plaintiffs could
not prove their exclusive possession over the
suit properties, drawing some erroneous
inferences the District Court has granted the
interim injunction vide the impugned order.
4) The learned Sr.Counsel further submitted
5 AO 55/2016
that (I) non production of original will (ii)
absence of necessary pleadings as about the will
and more particularly that it was the last will
executed by deceased Shankarrao and it was duly
attested by two witnesses (iii) absence of
required pleadings as about M.E.No.3760 and
M.e.No. 5037 (iv) abstention of plaintiffs from
entering the witness box and avoidance of cross-
examination by the defendants (v) examination of
power of attorney holder on the witness who
cannot be a witness on behalf of the plaintiffs
(vi) admissions given by the Power of attorney
holder that he has no personal knowledge of the
facts stated in the suit plaint and also about
the will of deceased Shankarrao and the mutation
entries; (vii) failure to prove that possession
was obstructed by the defendants are the aspects
which have been proved fatal for the case of the
plaintiffs leading to the dismissal of the suit
by the trial court. In such circumstance,
according to the learned Sr.Counsel, there was no
case for granting temporary injunction in favour
6 AO 55/2016
of the plaintiffs
5) The learned Sr.Counsel further submitted
that the continuance of injunction order during
the pendency of the suit is no justification to
continue the injunction when the trial court has
held that not the plaintiff but the defendants
are in possession of the property.
6) Shri G.S.Deshpande, learned Counsel
appearing for the respondents - plaintiffs
supported the impugned order. The learned Counsel
submitted that the execution of the Will by
deceased Shankarrao Dhumal was not a fact in
dispute and as such, there was no need of placing
on record the said Will. The learned Counsel
further submitted that the revenue entries, which
have come on record, pertaining to the suit lands
clearly establish that the plaintiffs were in
exclusive possession of the suit properties.
. The learned Counsel further submitted
that even in his evidence, appellant - deft.no.1
7 AO 55/2016
has admitted the fact that the suit properties
were owned and possessed by the plaintiffs. The
learned Counsel further submitted that the lower
appellate court has rightly considered the
relevant aspects in the matter and has protected
the interest of the plaintiffs till decision of
the appeal. The learned Counsel, therefore,
prayed for dismissal of the appeal.
7) I have carefully considered the
submissions made by the learned Sr. Counsel
appearing for the appellants and learned Counsel
appearing for the respondents. I have also
perused the impugned judgment and the other
material placed on record.
8) On perusal of the impugned order, it is
apparently revealed that while assessing the
evidence adduced before the Trial court, the
first appellate court, instead of weighing the
merit in the case of the plaintiffs, has
preferred to find weaknesses in the defences
8 AO 55/2016
raised by the defendants. Overall import of the
impugned order appears to be that since the
defendants have failed in establishing that the
suit properties are not in exclusive possession
of the plaintiffs, prima face case is with the
plaintiffs that they are holding possession of
suit lands and they are cultivating the same
through their power of attorney holder.
9) The primary burden was undoubtedly on
the plaintiffs to prove acquisition of absolute
title, ownership and possession vis-a-vis the
suit properties on the strength of the Will
referred in para 1 of the plaint and the complete
exclusion of the defendants there from on the
basis of the said Will. The plaintiffs were also
under an obligation to prove that their alleged
possession over the suit properties was
obstructed by the defendants.
10) After the full-fledged trial of the
suit, the trial court has recorded a clear
9 AO 55/2016
finding that the plaintiffs have failed in
establishing their possession over the suit
properties and that their alleged possession was
obstructed by the defendants. Consequently, the
suit has been dismissed by the trial court on
that ground. When the original Court, after
the trial has recorded the findings, as above and
dismissed the suit on that ground, prima facie it
was not a fit case for ordering the temporary
injunction by the first appellate court during
pendency of the appeal.
11) It is the matter of record that the
interim relief was operating in favour of the
plaintiffs during the pendency of the suit and
while granting such relief in favour of the
plaintiffs, the District court and while
confirming the said order, the High court, have
held the prima facie case in favour of the
plaintiffs. It has to be however borne in mind
that thereafter the evidence was adduced in the
matter by the parties to the lis and after
10 AO 55/2016
complete hearing, the trial court has dismissed
the suit on merits. It need not be stated that
the considerations for grant of temporary
injunction in first appeal preferred against the
dismissal of the suit on merits, cannot be the
same as while granting the temporary injunction
in the said suit at the initial stage, obviously
for the reason that, not only the entire material
i.e. oral and documentary evidence adduced in the
suit, but also the judgment of the trial court
becomes available to the first appellate court
while considering and deciding the temporary
injunction application in the appeal. Ordinarily,
where the original court after trial records a
finding that the plaintiffs have failed in
proving their possession over the suit properties
and the suit is dismissed on that ground, unless
some patent illegality or manifest error is
noticed in the observations made or finding
recorded by the trial court, it would not be a
fit case for granting temporary injunction by the
appellate court during pendency of the appeal.
11 AO 55/2016
12) I have carefully perused the judgment
and order passed by the trial court in RCS
No.131/2013. The trial court has dismissed the
suit for the following reasons, -
a) That, the plaintiffs did not
enter into the witness box and faced the
cross-examination;
b) That, the power of attorney
holder, who testified before the trial
court for and on behalf of the
plaintiffs, did not have personal
knowledge about the Will allegedly
executed by deceased Shankarrao Dhumal
and also about the other facts stated in
the suit plaint;
c) That, the plaintiffs have
failed in explaining the relevance of
mutation entry No. 5027;
12 AO 55/2016
d) That, the plaintiffs have not
placed on record the order passed by the
Tahsildar on the basis of which mutation
entry No. 5037 is made;
e) That, mutation entry No. 3760
does not refer to one of the suit lands,
i.e. Gut No. 18;
f) That the mutation entries,
which are much crucial and the
plaintiffs must have brought the same on
record to clarify the situation, were
not brought on record by the plaintiffs
and the plaintiffs did not utter a
single word about the said mutation
entries either in the pleadings or in
the evidence;
g) That, the plaintiffs did not
produce on record the land revenue
receipts pertaining to the suit lands
13 AO 55/2016
and on the contrary, the same are
produced by the defendants;
h) That, the plaintiffs failed in
bringing on record the evidence to prove
that their alleged possession over the
suit properties was obstructed by the
defendants;
i) That, the defendants though did
not have any onus to prove, still have
brought on record sufficient evidence to
show their possession over the suit
properties;
13) Prima facie, I do not see any infirmity
in the reasons assigned by the trial court while
dismissing the suit. As was submitted by Shri
P.M.Shah, learned Sr. Counsel appearing for the
appellants "Whether the plaintiffs prove
acquisition of title, ownership and possession
14 AO 55/2016
vis-a-vis the suit properties on the strength of
the Will referred in para 1 of the plaint and the
complete exclusion of the defendants there from
on the basis of the said Will" was the point
directly and substantially at issue in the suit.
Admittedly, the plaintiffs did not place on
record the copy of the Will though production of
the same was specifically sought for by the
defendants. Even if it is assumed that the
execution of the Will was admitted by the
defendants in the pleadings in RCS No.314/2011,
as submitted by the learned Sr. Counsel, still
burden was on the plaintiffs to prove that the
Will so referred was the last will of deceased
Shankarrao and that it was attested by two
witnesses as mandated by Section 63(c) of Indian
Succession Act, 1925 read with section 3 of the
Transfer of Property Act. The validity of the
Will cannot be presumed on the basis of the
pleadings in different proceedings.
14) In the suit plaint only two documents
15 AO 55/2016
are referred; the will allegedly executed by
deceased Shankarrao Dhumal and the Mutation Entry
No.5027. Document of Will was admittedly not
filed by the plaintiffs along with the plaint or
even thereafter during the trial of the suit.
M.E.No.5027, though seems to have been filed, it
has no bearing on the subject matter of the suit.
Said Mutation pertains to reduction in the amount
of land revenue assessment. As has been observed
by the trial court, copy of M.E.No.3760 which
throws some light on the aspect of Will executed
by deceased Shankarrao, was placed on record by
the defendants. In the said Mutation Entry,
however, there is no reference to Gat No.18 i.e.
suit property described in para 1 (b) of the suit
plaint. In Mutation Entry No.5037 and in
R.C.S.No.314 of 2011 also there is no reference
to said Gat No.18. The plaintiffs have thus not
brought on record any document to uphold their
contention that they have acquired title to said
Gat No.18 on the strength of the alleged Will
allegedly executed by deceased Shankarrao Dhumal.
16 AO 55/2016
The first appellate court has completely ignored
this aspect while passing the impugned order.
. Moreover M.E.No.3760 indicates the
bequest jointly in favour of plaintiff No.1 and
Defendant No.1. There is no pleading that after
the said mutation entry dt.20/02/1984, referring
to the alleged Will, subsequently there was a
division or partition. Further, there are no
particulars as to how and why in addition to
plaintiff no.1 and defendant no.1 the mutation is
effected with reference to plaintiff no.2 and
defendant no.2. Plaintiffs have also not
disclosed whether any such settlement had arrived
at between them and defendant M.E.No.5037, which
has been relied upon by the first appellate court
does not contain any such information. This
mutation does not say about the extinguishment of
title of the defendant. It is confined to the
alleged Wahiwat. The said mutation is effected on
the basis of order dated 10.06.1987 passed by
Tahsildar. However, the said order is not filed
on record. Even otherwise as has been argued by
17 AO 55/2016
the learned Senior Counsel mere entries in
revenue record cannot make or unmake title to the
properties.
15) As has been noted by the trial court it
was sought to be contended before it on behalf of
the plaintiffs that M.E.No.5037 is a partition
between plaintiffs and defendants. The Learned
Trial Court, however did not accept the said
contention observing that there was no factual
foundation and also evidence therefor. The trial
court has specifically observed that the suit
plaint is totally silent about both the mutation
entries, M.E.No.3760 and M.E.No.5037. I see no
infirmity in the observations so made and the
finding recorded by the Trial Court. The
defendants were expected to meet the case, only
as was pleaded in the plaint and no amount of
evidence could be looked into in the absence of
pleadings.
16) The Trial Court has declined to consider
18 AO 55/2016
and rely upon the evidence of P.W.1 Sayaji and
has recorded reasons therefor in paras 12 to 17
of its Judgment. The trial court has particularly
observed that evidence of P.W.1 Sayaji does not
show his personal knowledge about the facts and
circumstance in the case and his evidence is just
narration of certain facts, which came to his
knowledge from the plaintiffs or the defendants.
17) As held by the Hon'ble Privy council in
the case of Sardar Gurubaksh Singh Vs. Gurudial
Singh reported in 1927 Bom.L.R.1392, -
"It is bounden duty of a party,
personally knowing the whole
circumstances of the case, to give
evidence on his own behalf and to
submit to cross-examination. His
non appearance as a witness would be
the strongest possible circumstance
going to discredit the truth of his
case"
The Hon'ble Apex court in the case of Vidyadhar
Vs. Manikrao and Anr. - (1993) 3 SCC 573 has held
that,
" when a party to the suit does not
appear in the witness box and states
his own case on oath and does not
19 AO 55/2016
offer himself to be cross-examined
by the other side a presumption
would arise that the case set up by
him is not correct."
18) The Trial Court has observed that the
relief of perpetual injunction is a remedy in
personam and such remedy requires the aggrieved
person to come and depose in the court. The
trial court has also observed that the plaintiffs
have not provided any reason for not appearing in
person before the court for giving evidence in
the matter.
19) The Hon'ble Apex court in the case of
Janki Vashdeo Bhajwani and another Vs. Indusind
Bank Ltd. And Ors. - 2005 (1) Mh.L.J. 1170, has
observed that,
"A general power of attorney holder
can appear, plead and act on behalf
of the party but he cannot become a
witness on behalf of the party. He
can only appear in his own
capacity. No one can delegate the
power to appear in a witness box on
behalf of himself. To appear in a
witness box is altogether a
different act. A general power of
attorney holder cannot be allowed
to appear as a witness on behalf of
the plaintiff in the capacity of
the plaintiff."
20 AO 55/2016
20) It is further significant to note that
the plaintiffs executed the power of attorney in
favour of Sayaji on 27th March, 2015, i.e. after
about two years of filing of the suit by them.
The suit is admittedly filed on 28th February,
2013. In the suit plaint, it is not the case of
the plaintiffs that the suit properties are being
cultivated for and on behalf of them by Sayaji
Prataprao Deshmukh. As has come on record
through evidence of PW 1 - Sayaji, he came at
Mamdapur for the purpose of looking after the
suit properties in January 2015. in the suit, it
is the contention of the plaintiffs that their
possession over the suit properties was
obstructed by the defendants on 8th December,
2012. In the suit plaint, it is specifically
contended that on 8th February, 2012, the
defendants threatened the labourers engaged by
them and obstructed their possession.
Considering the facts, as aforesaid, it is
evident that PW 1 - Sayaji was not having any
21 AO 55/2016
personal knowledge of the aforesaid facts nor at
the relevant time he was cultivating the subject
lands. In the circumstances, in order to prove
the contentions raised in the plaint either of
the plaintiffs must have entered the witness box
to depose the necessary facts. Since none of the
plaintiffs appeared in the witness box and stated
his own case on oath and did not offer
himself/herself to be cross-examined, presumption
would arise that the case set up by him was not
correct. The Trial court has made such
observations and I do not find that the trial
court has committed any error in making such
observations and in drawing such inference.
21) While considering the aforesaid aspect,
learned first appellate court has observed that
the Trial Court has given undue importance to the
fact that plaintiffs intentionally withdrawn from
entering into the witness box. The first
appellate court has also observed that the power
of attorney holder examined by the plaintiffs has
22 AO 55/2016
specifically stated that plaintiffs are not
cultivating the suit lands but he himself is
cultivating the suit lands for plaintiffs as
plaintiffs are residing at Mumbai and it is for
that reason the plaintiffs examined the power of
attorney holder. After making such observations
the Appellate Court has recorded a finding that
therefore prima facie observations made by the
learned Civil Judge rejecting the evidence of
power of attorney holder are not correct.
22) Observation made as above and the view
so taken by the first appellate court is
apparently unsustainable since, it is contrary to
the evidence on record. As noted earlier the
power of attorney holder himself has stated in
his cross-examination that he started looking
after the suit lands since January 2015. As has
been specifically deposed by the power of
attorney holder, he came to village Mamdapur in
January 2015. The First Appellate Court has also
failed in appreciating that in his cross-
23 AO 55/2016
examination power of attorney holder has clearly
stated that he has taken information about the
suit from the plaintiffs and has no personal
knowledge about the facts therein. The power of
attorney holder has further admitted that he has
no personal knowledge about the execution of Will
by deceased Shankarrao and is also not personally
aware of the revenue entries made in respect of
the suit lands. In the aforesaid circumstances,
prima facie it does not appear to me that the
trial Court has committed any error in rejecting
the evidence of the power of attorney holder.
23) If the evidence of power of attorney
holder is kept out of consideration, there
remains no evidence on behalf of the plaintiffs
to substantiate the contentions raised in the
suit plaint that the suit properties were in
their exclusive possession at the timing of
filing the suit and that the alleged possession
was attempted to be obstructed by the defendants.
24 AO 55/2016
24) The observations made by the first
appellate court in para 11 of the impugned order
also cannot be subscribed. Mutation Entry No.3760
dated 28.02.1984 refers to the Will. However,
this Mutation Entry is not refereed in the
plaint. As alleged by the defendants the
plaintiffs have intentionally suppressed the said
Mutation Entry. Mutation Entry No.5037 is made on
the basis of order passed by Tahasildar bearing
No.Dand-2/349/87 dated 10.06.1987. However, this
basic order has not been made available to the
Court for scrutiny. The aforesaid mutation is
purported to be made on the basis of Vahivat.
There is no pleading even about this mutation in
the plaint. As noted by me herein above, there is
no pleading that after making of mutation entry
no.3760 referring to the will, subsequently there
was a division or partition. Though there is
some reference as about the Vatni Patra amongst
the plaintiffs and the defendants, there is no
pleading as about the said Vatni Patra also. As
was rightly submitted by the learned senior
25 AO 55/2016
counsel the defendants were expected to meet only
the case as was pleaded in the plaint and no
amount of evidence could be looked into in the
absence of pleadings. All the aforesaid aspects
are considered by the trial Court and I reiterate
that after full-fledged trial the trial court has
recorded the finding that the plaintiffs have
failed in establishing there exclusive possession
over the suit properties.
25) It further appears to me that the
inferences drawn by the first appellate court on
the basis of averments in R.C.S.No.314 of 2011
are also incorrect. The averments in the said
suit, at the most can be used to prima facie hold
that the will was executed by deceased Shankarrao
Dhumal and some properties were bequeathed by him
in favour of the plaintiffs and the defendants.
However, merely on the basis of the averments in
the said suit, no such inference can be drawn
that the plaintiffs are in exclusive possession
of the suit properties. Moreover, Gat No.10 and
26 AO 55/2016
Gat No.17 were only the subject lands in RCS
No.314 of 2011 and there is no reference to other
two suit lands,i.e. Gat No.18 and Gat No.33.
26) Averments in para 37 of the evidence
affidavit of Defendant No.1 to the effect that
plaintiffs had executed power of attorney in his
favour, authorising him to look after the suit
lands, have also been misconstrued by the first
appellate court. Firstly, such is not the case
of the plaintiffs pleaded in the suit plaint and
secondly, if said contention is to be relied
upon, it, in fact, negates the case of the
plaintiffs that they are in possession of the
suit properties. To accept the contention of
defendant No.1 that plaintiffs had executed power
of attorney in his favour authorizing him to look
after the suit lands would mean that deft.No.1 is
in de facto possession of the suit lands and then
plaintiffs had no reason to make any grievance
that their possession over the suit properties is
being attempted to be disturbed by the defendants
27 AO 55/2016
27) In the further discussion also, the
learned first appellate court has harped upon the
faults in the defence raised by the defendants.
Defendant can raise any legitimate plea available
to him under law to defeat the suit of the
plaintiff, but primary burden was on the
plaintiffs to prove that they are in exclusive
possession of the suit properties. After having
considered the material on record, it is
difficult to concur with the findings recorded by
the first appellate court while passing the
impugned order. Plaintiffs - appellants have
failed to make out any prima facie case so as to
continue the injunction order till decision of
the appeal. In the result, the following order,
-
ORDER
i) The appeal is allowed;
ii) Order dated 4.8.2016 passed
below Exhibit-5 in Regular Civil Appeal
No.40/2016 is set aside. Consequently,
28 AO 55/2016
the application at Exhibit-5 stands
rejected;
iii) No order as to costs. Pending
Civil Application, if any, stands
disposed of.
sd/-
(P.R.BORA)
JUDGE
bdv/
fldr 25.11.2016
