Bombay High Court
Premchand Janardhan Patil And Anr vs Pravara Murlidhar Kulkarni And ... on 1 July, 2016
Bench: T.V. Nalawade
1 S.A. 307.2000 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 307 OF 2000
1. Premchand S/o Janardhan Patil ..... APPELLANT/
[since deceased Thr. L.Rs. ] [ORI. DEFT.]
1-A. Pravin S/o Premchand Patil
Age : 48 Yrs., Occ. Service,
R/o : Shiv Colony,
Near Vedi Mata Mandir,
Bhusawal, Tq. Bhusawal,
Dist. : Jalgaon.
1-B. Smt. Sindhu W/o Premchand Patil
Age : 78 Yrs., Occ. Household,
R/o : Shiv Colony,
Near Vedi Mata Mandir,
Bhusawal, Tq. Bhusawal,
Dist. : Jalgaon.
2. Smt. Sumati Tryambak Kawthalkar
[since deceased Thr. L.Rs. ]
2-A. Shirish s/o Trimbak Kawathalkar
Age : 45 Yrs., Occ. Service,
R/o : Gadkari Nagar, Bhusawal,
Tq. Bhusawal, Dist. : Jalgaon.
::: Uploaded on - 19/07/2016 ::: Downloaded on - 30/07/2016 07:47:44 :::
2 S.A. 307.2000 - [J]
V E R S U S
1. Smt. Pravara Murlidhar Kulkarni ...RESPONDENT/
[since deceased Thr. L.Rs. ] [ORI. PLTFF.]
1-A. Murlidhar Devidas Kulkarni
Age : 68 Yrs., Occ. Pensioner &
Agril., R/o : Adawad,
Tq. Chopada, Dist. Jalgaon.
1-B. Dipak Murlidhar Kulkarni
Age : 68 3Yrs., Occ. Service,
R/o : Adawad, Tq. Chopada,
Dist. Jalgaon.
1-C. Kishor Murlidhar Kulkarni
Age : 37 Yrs., Occ. Education,
R/o : Adawad, Tq. Chopada,
Dist. Jalgaon.
1-D. Mrs. Lata Jayaram Deshpande
Age : 34 3Yrs., Occ. Household,
R/o : C/o Jayant Shriram
Deshpande, Plot No. 9,
Kirtin Nagar, Navi Sanghvi,
Pune.
.....
Mr. V.J.Dixit, Senior Counsel i/b Mr. L.V.Sangit,
Advocate for Appellants.
Mr. S.S.Bora, Advocate for R - 1-A to 1-D.
::: Uploaded on - 19/07/2016 ::: Downloaded on - 30/07/2016 07:47:44 :::
3 S.A. 307.2000 - [J]
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 01/07/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and Decree of R.C.A. No. 141/1995 which was pending in
the Court of the Extra Joint District Judge, Jalgaon. The
Appeal filed by the present respondent/original plaintiff
against the Judgment and Decree of R.C.S. No. 119/1992
which was pending in the Court of the Civil Judge
[Jr.Division], Bhusawal is allowed by the first appellate
Court and decree of declaration of ownership is given in
favour of the plaintiff. Heard both 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 plot No. 80,
which is part of S.No. 101/3 admeasuring 3713 Sq. Feet
situated at Bhusawal. It is the case of the plaintiff that
defendant No. 2 was the owner of this property and
under registered sale deed on 25/06/1974, defendant
No. 2 sold the suit property to the plaintiff and on the
4 S.A. 307.2000 - [J]
date of the sale deed, plaintiff was put in possession of
the suit property. It is her case that she has been in
possession of the suit property as owner since the date of
the sale deed.
3. It is the case of the plaintiff that due to the
service of her husband and due to his health condition,
her family was out of station for some time. It is her
case that defendant No. 2 executed sale deed dated
23/01/1986 in favour of defendant No. 1 in respect of
the suit property and on that basis defendant No. 1 has
got entered his name in the property card of the suit
property. It is contended by the plaintiff that she had
challenged the said entry, but the revenue proceeding is
decided against her and so the cause of action has taken
place for the Suit.
4. Defendant No. 2 admitted that he had
executed sale deed in favour of the plaintiff in the year
1974, but he denied the other contentions. He contended
that the plaintiff did not get the possession of the suit
property under the sale deed. It is his case that plaintiff
did not take steps for effecting mutation in her favour in
5 S.A. 307.2000 - [J]
the record of city survey on the basis of the sale deed and
he continued to remain in possession. He contended that
he has become owner of the suit property due to adverse
possession. He contended that he sold the suit property
to defendant No. 1 under registered sale deed dated
21/03/1986 and he has given possession of the suit
property to defendant No. 1.
ig Defendant No. 1 contested the matter and
contended that he is bonafide purchaser without notice
and for lawful consideration. He contended that he got
the possession of the property from defendant No. 2. He
contended that he had given public notice before
purchasing the property from defendant No. 2. He has
contended that he has been in possession of the property
since 21/03/1986.
6. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. The revenue
record was produced by the defendants. The original sale
deed was produced by the plaintiff in support of her case,
but defendant No. 1 did not produce the sale deed. The
trial Court had dismissed the Suit by holding that under
6 S.A. 307.2000 - [J]
sale deed of the year 1986 made by defendant No. 2 in
favour of defendant No. 1, the possession was not given.
The trial Court further held that the Suit was filed in the
year 1992 and so it was not within the prescribed period
of limitation. The trial court held that plaintiff was in
possession on the date of the Suit and as ultimate relief of
possession was not claimed, she is not entitled to get the
relief of declaration. The trial court considered the
decision of the revenue proceeding given in favour of
defendant No. 2. The first appellate Court has set aside
the decision and it is held that the plaintiff is owner and
she has been in possession of the suit property.
7. This Court admitted the appeal on
31/10/2002 on following substantial question of law.
Whether Article 58 or 59 of the
Limitation Act is applicable and whether
the Suit was within limitation ?
8. The oral and documentary evidence of the
parties show that the suit property is open plot. It is part
of big survey number. 7/12 extract shows that this land
was not under cultivation. No entry of possession was
7 S.A. 307.2000 - [J]
taken even of defendant No. 1. When a person
purchases the property under registered sale deed, it is
the responsibility of the concerned authority to inform to
the revenue authority and make the mutation on the basis
of the sale deed. Only because plaintiff did not take
steps to enter her name, it can not be said that she had
not become owner under the registered sale deed. In the
sale deed there is specific mention that possession was
given to the plaintiff in the year 1974. In view of the
recitals of the sale deed and the circumstance that it is
open plot, the burden was heavy on defendant No. 2 to
prove that subsequent to the date of the sale deed made
in favour of the plaintiff, he took the possession of the
land. There is no such evidence from defendant No. 2 or
defendant No. 1.
due to adverse possession could not have been proved in
view of the circumstance that the sale deed was executed
in favour of the plaintiff on 25/06/1974 and defendant
No. 2 executed the sale deed in favour of defendant No. 1
on 21/03/1986, before the expiry of period of 12 years.
Further, it can not be said that the Suit of the plaintiff
8 S.A. 307.2000 - [J]
was not in limitation as the cause of action took place for
her when the revenue authority decided against her. So,
Article 58 of the Limitation Act is applicable in the
present matter.
10. Only because the owner remains out of
station for some time, owner does not loose possession
over the immovable property. On the date of the Suit, it
was open space. In view of these circumstances, the trial
Court had committed error in holding that plaintiff had
lost possession. Learned counsel for the appellants
placed reliance on the case reported as 1997 (4) ALL MR
- 192 [Jagdishsingh Deonandansingh Vs. Feku
Jamnaprasad Yadav & Ors.]. It is observed by this
court that in view of Section 34 of the Specific Relief Act,
possession needs to be claimed and the Suit only for relief
of declaration can not be entertained. There can not be
dispute over this proposition. It is already observed that
the plaintiff has been in possession of the suit property
and so the case cited supra can not help the
defendants. Defendant No. 1 did not take search of the
record of registration and facts and circumstances
indicate his knowledge about previous transaction.
9 S.A. 307.2000 - [J]
11. The aforesaid point is answered accordingly
and the Appeal stands dismissed. In view of
dismissal of Second Appeal, C.A. No. 3377 of 2000
stands disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 307.2000 - [J]
