Bombay High Court
Dagadu Bayaji Shinde vs Vithal Bayaji Shinde And Ors on 4 July, 2016
Bench: T.V. Nalawade
1 S.A. 15.2008 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 15 OF 2008
Dagadu Bayaji Sinde
Age : 76 Yrs., Occ. Agril.,
R/o : At Mandali, Taluka : ..... APPELLANT/
Karjat, Dist. : Ahmednagar. [ORI. PLAINTIFF]
ig V E R S U S
1. Vitthal Bayaji Shinde
[since deceased Thr. L.Rs.]
1-(a) Ashok Vitthal Shinde
Age : 30 Yrs., Occ. Agril.,
R/o : H.No. 177, Bhindikhau
Shamlal Maharaj Chal,
Shivaji Nagar, Indor
[Madhya Pradesh].
1-(b) Radha Vitthal Shinde
Age : 20 Yrs., Occ. Household,
R/o : H.No. 177, Bhindikhau
Shamlal Maharaj Chal,
Shivaji Nagar, Indor
[Madhya Pradesh].
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2 S.A. 15.2008 - [J]
2. Gorakh Bayaji Sinde
Age : 43 Yrs., Occ. Service &
Agril., R/o : H.No. 177,
Bhindikhau Shamlal Maharaj
Chal, Shivaji Nagar, Indor
[Madhya Pradesh].
3. Shankar Bayaji Sinde
Age : 40 Yrs., Occ. Service &
Agril., R/o : H.No. 177,
igBhindikhau Shamlal Maharaj
Chal, Shivaji Nagar, Indor
[Madhya Pradesh].
4. Pandurang Bayaji Sinde
Age : 36 Yrs., Occ. Service &
Agril., R/o : H.No. 177,
Bhindikhau Shamlal Maharaj
Chal, Shivaji Nagar, Indor ..... RESPONDENTS/
[Madhya Pradesh]. [ORI. DEFENDANTS]
.....
Mr. N.V.Gaware, Advocate for Appellant.
Mr. H.U.Dhage, Advocate for R - 1-A,
1-B, 2 to 4.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 04/07/2016
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3 S.A. 15.2008 - [J]
JUDGMENT :
1. The Appeal is filed against the Judgment
and Decree of R.C.A. No. 54/2004 which was pending in
the Court of the Ad-hoc District Judge -3, Ahmednagar.
The Appeal filed by the defendants of R.C.S. No. 81/1998
which was pending in the Court of the Civil Judge
[Jr.Division], Karjat is allowed by the District Court and
the decree given against them of declaration of ownership
of plaintiff is set aside. 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 some portion
of land G.No. 157 admeasuring 3 H. 25 R. and some
portion of land G.No. 158. Both the lands are situated at
village Mandali, Tahsil Karjat, district Ahmednagar.
3. The plaintiff is real brother of defendant Nos.
1 to 4. It is the case of the plaintiff that partition had
taken place amongst the brothers and their father and
since then they are leaving separate. It is the case of the
plaintiff that the suit property was sold by their father to
Bijabai and Hausrao to pay the debt. It is the case of
4 S.A. 15.2008 - [J]
the plaintiff that he purchased the suit property from
these 2 persons after the partition, though he purchased
these properties in the name of his father. It is contended
that father was living with the plaintiff and as per the
desire of father, the property was purchased in the name
of father of the plaintiff, but the consideration was paid
by the plaintiff and the possession also was handed over
to the plaintiff.
4. Father of the parties died on 13/09/1994
and the Suit came to be filed on 08/06/1998. It is the
case of the plaintiff that defendants tried to enter their
names in respect of the suit lands in the revenue record
after the death of their father and then the cause of
action took place for the Suit. It is the case of the
plaintiff that the defendants have no concern with the
suit property, but due to their obstruction and conduct,
relief of declaration needs to be granted in favour of the
plaintiff.
5. Defendant Nos. 1, 3 and 4 filed joint Written
Statement and contested the Suit. They did not admit
the case of the partition. They contend that the suit
5 S.A. 15.2008 - [J]
property is ancestral property of their father. It is their
case that as the father was living with the plaintiff, the
plaintiff wants to grab the entire property. It is their case
that each brother has 1/5th share in the suit property.
They had claimed the relief of counter claim to get their
share separated. Defendant No. 2 adopted this Written
Statement. Plaintiff filed Written Statement to the
aforesaid counter claim. He denied the aforesaid
contentions made by the defendants.
6. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. The trial Court
held that there was partition effected during life time of
the father of parties and the property was purchased by
the plaintiff after the partition. It was held by the trial
Court that the property was purchased in the name of
father by the plaintiff, but the consideration was paid by
the plaintiff. The District Court held that initially the
property was standing in the name of father and the
property was belonging to joint Hindu family of the
father of the parties. The District Court held that as the
property was purchased by father, each brother has equal
share in this property.
6 S.A. 15.2008 - [J]
7. This Court [other Hon'ble Judge] admitted
the Appeal on 19/06/2008 by holding that substantial
questions of law need to be formulated on ground Nos.
(iii), (iv), (v), (ix) and (x) of Appeal memo. So, the
following grounds are treated as substantial questions of
law.
(iii) Whether the appellate Court has erred in
appreciating the provision of Section 34 of
ig the Specific Relief Act, 1963 and has further
erroneously arrived at a conclusion that the
Suit of the appellant was not maintainable
without asking the relief of cancellation of
sale deeds as the appellant has only prayed
for declaration of ownership ?
(iv) Whether the appellate Court has misread and
misunderstood the provision of section 91
and 92 of the Indian Evidence Act and thus
has dissented with the view by the learned
trial Court ?
(v) Whether the appellate Court has erred in
not considering the aspect of previous
partition between the appellant and the
respondents during the life time of their
father namely Bayaji which goes to the very
root of the matter and thus has caused great
prejudice to the appellant ?
7 S.A. 15.2008 - [J]
(ix) Whether the appellate Court has failed to
appreciate the fact that the consideration was
paid by two separate cheques of the account
of the appellant of which the counter foils
have been presented in the Court and there
appears to be entries in the ledger book of
the A.D.C.C. Branch, Ghogargaon ?
(x) Whether the appellate Court has failed to
appreciate the oral evidence of P.W. 2
ig Bhagchand Pathare [Exh. 45] who is the
bank Manager of A.D.C.C. Bank and has
supported the case of the appellant and who
has also categorically deposed that the
provident fund amount was credited in
the account of the appellant and the
appellant had issued two cheques in favour
of Hausrao Gangarde and Bijabai Wable ?
8. Both the sides have given evidence.
Following are the few admitted facts and the
circumstances which are proved, which need to be kept in
mind while appreciating the rival contentions and the
material.
[i] It is not disputed that both the suit properties
were ancestral properties of the father of the
parties. Exh. 58 and one agreement which is
8 S.A. 15.2008 - [J]
not exhibited, but which is not disputed
show that the father Bayaji had sold S.No.
157 [to the extent of his share of 81 R.] to
Smt. Bijabai on 26/04/1989 for the
consideration of ` 18,000/-. The other
document shows that property bearing S.No.
59/2 [to the extent of 40 R.] given in
possession of Hausrao by Bayaji for the
consideration of ` 10,000/- [Rupees Ten
Thousand] on 30/11/1987. The sale deeds
ig of 1992 show that aforesaid properties
were sold by Smt. Bijabai and Hausrao
to Bayaji. The consideration of ` 22,000/-
was paid to Bijabai for the sale deed dated
29/05/1992 and consideration of
`15,000/- was paid to Hausrao. It
appears that in the recent sale deed, recent
number of the property which was with
Hausrao is mentioned.
[ii] The transaction made by Bayaji in the past
was shown as sale transaction but the parties
admit that they were mortgage transactions
and Bayaji had right to get back these
properties from Smt. Bijabai and Hausrao.
[iii] In both the sale deeds [Exhs. 56 and 57]
executed in favour of father of the plaintiff,
the vendors have mentioned that
consideration was already received by them
9 S.A. 15.2008 - [J]
in cash. Thus, both the vendors had
received consideration prior to 07/04/1992
and 29/05/1992.
9. In view of the pleadings in the plaint, it was
necessary for the plaintiff to prove that the consideration
passed from him and only due to the desire of his father,
he purchased the property in the name of his father. For
that plaintiff had made an attempt to prove that he had
made the payment of consideration by cheque.
10. One Pathare, bank employee, is examined by
the plaintiff to prove that he made the payment through
cheque. The evidence of this witness shows that in April
and May, 1992 some amount was credited in the bank of
this witness by the plaintiff and it was provident fund
amount of the plaintiff. The account proved is at Exh.
59. This shows that on 08/04/1992, amount of `
40,000/- was shown to be paid to Hausrao. This
document further shows that the amount of ` 22,000/-
was again paid to Hausrao on 30/05/1992. In this
extract it is shown that amount of ` 35,860/- was shown
to be paid to B.H.Wable, the vendor of other sale deed,
on 08/04/1992. Thus, the amount shown to be paid to
10 S.A. 15.2008 - [J]
the 2 vendors does not tally with the dates of the
transactions and also the contents of the sale deeds
executed in favour of the father of the plaintiff. The
amounts were different. Further, no evidence is given to
have counter cheque like the encashment of the cheques
by these 2 persons in their account. No explanation of
the aforesaid discrepancies are given by the plaintiff.
Further, these 2 vendors are not examined by the
plaintiff. When admittedly, the properties were with
these vendors by way of mortgage, such evidence was
necessary.
11. The circumstance that the sale deeds were
executed in the name of father is there and due to that
circumstance inference is not possible that the plaintiff
got executed the sale deed. On the contrary, inference is
there that the father purchased the properties in view of
the provisions of Sections 91 and 92 of the Indian
Evidence Act. No action was taken by the plaintiff during
life time of father and this circumstance also can not be
ignored.
12. The aforesaid discussion shows that the
11 S.A. 15.2008 - [J]
property was owned by the father of the parties. This
Court holds that the District Court has not committed
any error in giving the decision against the present
appellant. Further, the Suit was also not filed within 3
years from the date of transaction. No evidence like copy
of application allegedly given to the revenue authority by
the defendants is produced to show that cause of action
took place subsequently. No substantial question of law
as such is involved in the matter though the aforesaid
points were to be considered as substantial questions of
law.
13. In the result, Second Appeal stands
dismissed.
14. At this stage, learned counsel for the
appellant seeks continuation of interim relief for some
time. In view of the aforesaid observations, such prayer
is rejected.
[T.V.NALAWADE, J.]
KNP/S.A. 15.2008 - [J]
