Bombay High Court
Fakrichand Sheku Gitre And Others vs Shamrao Shivram Badoge on 7 July, 2016
Bench: T.V. Nalawade
1 S.A. 405...1998 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 405 OF 1998
1. Fakirchand Sheku Gitre
Age : 58 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur,
Dist. : Aurangabad.
2. igGangadhar S/o Fakira Gitre
Age : 38 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur,
Dist. : Aurangabad.
3. Eknath S/o Fakira Gitre
Age : 33 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur,
Dist. : Aurangabad.
4. Devidas S/o Fakira Gitre
Age : 30 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur,
Dist. : Aurangabad.
5. Rangubai W/o Fakira Gitre
Age : 56 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur,
Dist. : Aurangabad.
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6. Asarabai Kachru
Age : 38 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur, ..... APPELLANTS/
Dist. : Aurangabad. [ORI. DEFENDANTS]
V E R S U S
Shamrao S/o Shivram Badoge
Age : 58 Yrs., Occ. Agril.,
R/o : Raipur, Tq. Gangapur, .... RESPONDENT/
Dist. : Aurangabad. [ORI. PLAINTIFF]
ig .....
Mr. N.K.Kakade, Advocate for Appellants.
Mr. Rajendra Deshmukh, Advocate for Respondent
.....
WITH
CIVIL REVISION APPLICATION NO. 795 OF 2001
Fakirchand Sheku Gitre
Age : 61 Yrs., Occ. Agril.,
R/o : Raipur (Dongaon),
Tq. Gangapur, Dist. : ..... APPLICANT/
Aurangabad. [ORI. PLAINTIFF]
V E R S U S
1. Shamrao S/o Shivram Badoge
Age : 62 Yrs., Occ. Agril.,
R/o : Raipur (Dongaon),
Tq. Gangapur,Dist. : Aurangabad. RESPONDENT/
[ORI. PLAINTIFF]
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3 S.A. 405...1998 - [J]
2. Maharashtra State Electricity Board
Through its Assistant Engineer,
Sub Division, Gangapur, Taluka : RESPONDENT/
Gangapur, Dist. Aurangabad. [ORI. DEFT.NO.2]
3. Maharashtra State Electricity Board
Through its Sub Engineer,
Sub Division, Lasur Station,
Tq. Gangapur, District : RESPONDENT/
Aurangabad. [ORI. DEFT.NO.3]
ig .....
Mr. N.K.Kakade, Advocate for Applicant.
Mr. Rajendra Deshmukh, Advocate for R - 1.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 07/07/2016
JUDGMENT :
1. The Second Appeal is filed to challenge the
Judgment and Decree of R.C.A. No. 350/1993 which was
pending in the Court of the Additional District Judge,
Aurangabad. The Appeal was filed by the original
plaintiff to challenge the Judgment and Decree of R.C.S.
No. 340/1987 which was pending in the Court of the
Civil Judge [Jr. Division], Gangapur. The Suit was filed
4 S.A. 405...1998 - [J]
for relief of injunction and the trial Court had dismissed
the Suit. The first Appellate Court has set aside the said
decision and the Suit is decreed as prayed for. Heard
both sides.
2. The Suit was filed in respect of portion of 2
Acres 38 gunthas out of land G.No. 87 situated at village
Pimpalgaon Divsi, Tahsil Gangapur, District Aurangabad.
In the past, total area of this land was 22 Acres 24
gunthas. This land was divided amongst 3 issues of one
Sheku viz. Fakirchand, Bandu and Khandu. Each was
given around equal share and each was owner of 7 Acres
and few gunthas. They were enjoying their shares
separately. For percolation tank, the property of Khandu
was acquired in entirety and some portions of the shares
of Bandu and Fakira were acquired.
3. It is the case of the plaintiff, who is the
purchaser from the successor of Bandu viz. Vitthal, that
the land admeasuring 2 Acres 38 gunthas was with
Vitthal and he purchased this land for the consideration
of ` 10,000/- [Rupees Ten Thousand] under registered
sale deed dated 10/08/1987. It is contended that on the
5 S.A. 405...1998 - [J]
date of sale deed the plaintiff was put in possession of the
property by Vitthal. He has given the boundaries of the
portion purchased as per the sale deed. On northern
side of this land, there was land of defendant No. 1
Fakira.
4. It is the case of the plaintiff that on the
basis of the sale deed, his name is mutated in the revenue
record and he has been taking crops in his portion. He
has contended that immediately after the execution of
sale deed, defendant No. 1 and his family members
created dispute and they destroyed the standing crop of
Jawar from his land. It is contended that the defendants
had forcibly taken possession of his land and so the cause
of action took place for the Suit.
5. Defendant Nos. 1 to 6 filed joint Written
Statement. They admitted that the land was divided
amongst 3 successors of Sheku. They also admitted that
the plaintiff got executed the sale deed from Vitthal on
10/08/1987, but they denied that the consideration was
paid and possession was taken from Vithhal by the
plaintiff.
6 S.A. 405...1998 - [J]
6. It is the case of the defendants that entire
portion of Vitthal was acquired for percolation tank and
there was no land left with Vitthal in G.No. 87. It is
contended that as the record of acquisition was not
completed, there was the name of Vitthal in the 7/12
extract and this circumstance is mis-used by Vitthal and
the plaintiff. It is contended that in the past, R.C.S. No.
201/1985 was filed by defendant No. 1 against Vitthal
and in that Suit relief of permanent injunction is given by
the Civil Court and so no relief can be given in favour of
the plaintiff.
7. On the basis of the aforesaid pleadings,
issues were framed. Both sides gave evidence. The trial
Court had dismissed the Suit by holding that the sale of
the land in favour of the plaintiff is not proved. The
circumstance that relief of injunction was given in favour
of defendant No. 1 in R.C.S. No. 201/1985 was
considered against the plaintiff. It is observed that
Vitthal was not having 2 Acres 38 gunthas land after
acquisition. The first appellate Court has considered the
oral evidence and the documentary evidence viz. E-
Statement prepared by the Special Land Acquisition
7 S.A. 405...1998 - [J]
Officer. The first appellate Court has come to the
conclusion that there was an area of 2 Acres 38 gunthas
with Vitthal on the date of sale made in favour of the
plaintiff. The vital admission in the oral evidence given
by defendant No. 1 is considered which is in respect of
allotment of shares to 3 issues of Sheku. It is also
observed by the first appellate Court that the relief of
injunction if given in favour of the plaintiff in the present
matter, that will not overlap the decision given in favour
of defendant No. 1.
8. Civil Revision Application is also filed by the
appellant Fakira and it is against the decision of
M.A.R.J.I. No. 33/1999 which was pending in the Court
of the 3rd Additional District Judge, Aurangabad. This
application was filed for condonation of delay caused in
filing Appeal against the Judgment and Decree given by
the trial Court in R.C.S. No. 9/1990. The Suit was filed
by present plaintiff Shamrao and it was in respect of his
right to take water from common well situated in G.No.
87 and to have his own motor pump on this well. The
Suit was decided on 10/12/1992 and so the M.A.R.J.I.
was filed. Here, only it needs to be observed that the
8 S.A. 405...1998 - [J]
disposal of M.A.R.J.I. was as good as disposal of the First
Appeal and so Second Appeal ought to have been filed.
In any case, the decision of the other Appeal can decide
the rights of Shamrao claimed in the other Suit.
9. The Second Appeal was admitted by this
Court [other Hon'ble Judge] by Order dated 13/01/1999
by making following observation,
ig " The Court below are at variance of
factual aspect of possession of the suit
property and so 'admitted'. "
10. It can be said that no substantial question of
law as such was formulated by this Court. In view of the
rival contentions, following points needs to be decided in
the present matter as substantial questions of law.
[i] Whether the first appellate Court has
committed error in re-appreciating the oral
evidence and documentary evidence and to
set aside the decision given by the trial
Court that there was no property with Vitthal
and possession was not given by Vitthal ?
[ii] Whether the first appellate Court has
committed error in holding that the decision
9 S.A. 405...1998 - [J]
of the present matter can not overlap the
decision of previous Suit of injunction
decided in favour of defendant No. 1 ?
11. This Court has carefully gone through the
record like E-statement. This record of land acquisition
shows that for the irrigation project, 3 H. 16 R. portion of
Khandu was acquired, 1 H. 70 R. portion of Vitthal, son
of Bandu, was acquired and 50 R. portion of Fakira,
present defendant No. 1 was acquired. Thus, entire
portion of Khandu was acquired, but out of 7 Acres 22
gunthas portion of Vitthal, 1 H. 70 R. around 4 Acres 10
gunthas land was acquired and so Vitthal was having
remaining portion in land G.No. 87. Accordingly, after
the acquisition made in the year 1984-85, the revenue
record was prepared and the name of Vitthal was
continued for remaining portion. The 7/12 extracts of
this land at Exhs. 88 and 89 show that Vitthal was
cultivating his portion separately. Thus, Vitthal was
having the property shown to be sold to the plaintiff.
12. The plaintiff has examined Vitthal in support
of his case and Vitthal has admitted that he has sold the
10 S.A. 405...1998 - [J]
suit property in favour of the plaintiff. Mutation extract
in that regard is produced at Exh. 87. In view of this
circumstance and as defendant No. 1 had no locus standi
to challenge the sale deed made by Vitthal in favour of
the plaintiff, it was not proper on the part of the trial
Court to hold that the sale transaction between Vitthal
and the plaintiff was not proved. Due to mis-conception
about the necessity of production of original sale deed in
such a case, the trial Court committed error. The relevant
portion of pleadings from the Written Statement is
already quoted and it shows the execution of the sale
deed by Vitthal in favour of the plaintiff was not disputed
by the defendants.
13. Copy of sale deed is on record and in the sale
deed, the boundaries of the portion sold are mentioned.
The evidence of plaintiff is in accordance with the
pleadings in the plaint. Defendant No. 1 has specifically
admitted in his cross examination as follows.
[i] Partition had taken place about 40 - 50 years
prior to the date of deposition.
[ii] Each member was enjoying his share
11 S.A. 405...1998 - [J]
separately.
[iii] Eastern portion of his share was acquired for
irrigation project.
14. Fakira has tried to say that only 4 - 5 gunthas
of his land was acquired, when as per record 50 R.
portion of Fakira was acquired. The record shows that
western portion was allotted to Fakira, middle portion
was allotted to Khandu and extreme eastern portion was
allotted to the share of Vitthal. On the eastern side of
Fakira, there was land of Khandu and entire land of
Khandu was acquired and there was water of irrigation
project on this portion. Thus, there is no scope for Fakira
to say that beyond water his land is there. In spite of
these circumstances, he tried to contend that beyond
water, he has some portion. The evidence of Fakira is
also on existence of well which was there right from
beginning and about which there was dispute in the other
Suit. There is mention of this well in the mutation also.
15. On the basis of aforesaid circumstances, the
first appellate Court has set aside the decision of the trial
Court and has granted the decree of injunction in favour
of the plaintiff. This Court holds that it is not possible to
12 S.A. 405...1998 - [J]
interfere in the decision given by the first appellate Court
and also in the order made in M.A.R.J.I.
16. So, both the above points are answered
against the appellants and both the proceedings stand
dismissed. In view of dismissal of Second Appeal, C.A.
No. 1060 of 1999 stands disposed of.
ig
[T.V.NALAWADE, J.]
KNP/S.A. 405...1998 - [J]
