Bombay High Court
Yeshwant Bhivaji Bhojane Lrs.1 ... vs Bajirao Bhivaji Bhojane And ... on 8 July, 2016
Bench: T.V. Nalawade
SA No. 113/1992
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 113 OF 1992
WITH
CIVIL APPLICATION NO. 4389 OF 1996
1. Yeshwant s/o. Bhivaji Bhojane,
Age 35 years, Occu. Agri.,
2. Manik s/o. Yeshwant Bhojane,
Age 30 years, Occu. Agri.,
3. Babu s/o. Yeshwant Bhojane,
Age 25 years, Occu. Agri.,
4. Sakharam s/o. Yeshwant Bhojane,
Age 23 years, Occu. Agri.,
5. Salubai w/o. Manik Bhojane,
Age 25 years, Occu. Household,
6. Parwatibai Babu Bhojane,
Age 21 years, Occu. Household,
All R/o. Kingaon, Tal. Ambad,
District Jalna. ....Appellants.
Versus
1. Bajirao s/o. Bhivaji Bhojane,
Age 35 years, Occu. Agri.,
2. Gamaji Bhivaji Bhojane,
Age 30 years, Occu. Agri.,
Both R/o. Kingaon, Tal. Ambad,
District Jalna. ....Respondents.
Mr. S.S. Bora, Advocate for appellants.
Mr. V.B. Ghatge, Advocate for respondent Nos. 1 and 2.
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SA No. 113/1992
2
CORAM : T.V. NALAWADE, J.
DATED : 8th July, 2016.
JUDGMENT :
1) The appeal is filed against judgment and decree of
Regular Civil Suit No. 190/1981, which was pending in the Court
of Civil Judge, Junior Division, Ambad and also against the
judgment and decree of Regular Civil Appeal No. 185/1986,
which was pending in the District Court, Jalna. Heard both the
sides.
2) The suit was filed for relief of permanent injunction
and for declaration of ownership against the appellants. The suit
property involved is Gat No. 231 (Old Survey No. 67/1),
admeasuring 4 Acre 4 Gunta situated at village Kingaon. It is the
case of plaintiffs that the property was owned by mother of
plaintiffs by name Sonabai. Defendant No. 1 is real brother of the
two plaintiffs.
3) It is the case of plaintiffs that there was partition
amongst the brothers and the suit property had gone to the
share of Sonabai. It is their case that under the registered sale
deed dated 27.5.1981, she sold the property to plaintiffs, to her
sons and so, they have become absolute owners of the property.
SA No. 113/1992
It is their case that the defendant had got entered his name in
the record created during the implementation of consolidation
scheme. It is contended that the said entry was challenged and
the said entry made in favour of defendant No. 1 is cancelled as
he has no right in respect of suit property. It is contended that in
spite of these circumstances, on 30.9.1981 the defendants
obstructed possession of plaintiffs over the suit land and the
cause of action took place.
4) Defendants filed written statement and contested
the matter. They contended that the property had come to
Sonabai by succession, but she was not in possession. It is
contended that there was no need to Sonabai to sell the
property in favour of plaintiffs only and the transaction is not
binding on the defendants. It is contended that Sonabai had
given application to authority appointed for implementation of
consolidation scheme to enter the name of defendant No. 1 in
the revenue record as owner. It is contended that the land is
received by defendant No. 1 in partition and so, plaintiffs have
no concern with the land.
5) Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence.
SA No. 113/1992
6) The Courts below have considered the oral and
documentary evidence. Till the year 1962, there was the name
of father of plaintiffs viz. Bhivaji. After the death of Bhivaji, name
of Sonabai was entered as Karta of joint family as her sons were
minor. Then record is there to show that partition was effected
amongst the sons of Sonabai and each member was given
separate property. The record of mutation is considered and it
shows that it was almost equitable partition. The suit property
was not given to the share of plaintiffs and defendants as per
this record and the name of Sonabai was continued. This record
shows that the land was kept with Sonabai and this was
admeasuring 4 Acres 4 Gunta. Much more share was allotted to
plaintiffs and defendant No. 1. Thus, there is no record with
defendant No. 1 to show that the property had gone to his share
in the partition. The record has created clear probability that
property had gone to the share of Sonabai. As per the principles
of Hindu Law, Sonabai was absolute owner of the property and
her name was also there in the revenue record. In view of these
circumstances, she could have transferred the property as
provided under the Transfer of Property Act but not by giving
application to the authority appointed under the Bombay
Prevention of Fragmentation and Consolidation and Holdings Act.
SA No. 113/1992
Observations are made that the so called application given by
Sonabai to the authority is suspicious in nature. In any case, by
such application, the title could not have been transferred to
defendant No. 1 and the concern authority has rightly cancelled
the entry made in favour of defendant No. 1 in that regard.
There is sale deed executed in favour of plaintiffs by their
mother. Thus, the title passed to the plaintiffs. As per the record,
Sonabai was in possession of the land after the death of Bhivaji
and so, she could have handed over the possession to plaintiffs.
These circumstances are considered by the Courts below.
7) This Court (Other Hon'ble Judge) admitted the appeal
on 5.3.1992, but substantial questions of law were not
formulated. In view of these circumstances, both the sides were
asked to argue on following substantial questions of law :-
(i) Whether Sonabai was the absolute owner of the
suit property ?
(ii) Whether under sale deed executed by Sonabai in
favour of plaintiffs, title has passed to plaintiffs and
they are in possession ? and
(iii) Whether the Courts below have committed error
in not considering the material on record created
during consolidation of holdings ?
SA No. 113/1992
8) The aforesaid discussion shows that Courts below
have considered the entire record. The title could not have
passed to defendant No. 1, even if defendant No. 1 was in
position to prove that his mother had given an application to the
authority for entering the name of defendant No. 1. Thus, no
substantial question of law as such is involved in the matter. All
the points need to be answered against the appellants. In the
result, the appeal stands dismissed. Civil Application is disposed
of.
[ T.V. NALAWADE, J. ]
ssc/
