Bombay High Court
Gangaram Vishwanath Survase And ... vs Vishwanath Gangaram Survase And ... on 21 July, 2016
Bench: T.V. Nalawade
1 S.A. 502...2000 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 502 OF 2000
1. Gangaram s/o Vishwanath Survase
Age : 21 Yrs., Occ. Labour,
R/o : Belkund, now at Chiplun,
Dist.: Ratnagiri.
2. igKondiba s/o Vishwanath Survase
Age : 19 Yrs., Occ. Labour,
R/o : Belkund, now at Chiplun,
Dist.: Ratnagiri.
3. Laxmibai w/o Vishwanath Survase
Age : 21 Yrs., Occ. Household,
R/o : Belkund, Tq. Chiplun, ..... APPELLANTS/
Dist.: Ratnagiri. [ORI. PLAINTIFFS]
V E R S U S
1. Vishwanath s/o Gangaram Survase
Age : Major, Occ. Labour,
R/o : Belkund, Tq. Ausa,
now at Chiplun, Dist.: Ratnagiri.
2. Govind s/o Kondiba Survase
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
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Dist. Latur.
3. Narayan s/o Kondiba Shinde
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
4. Padmanathcharya s/o
Govindcharya
Age : Major, Occ. Religious
igwork, R/o : Belkund, Tq.
Ausa, Dist. Latur. [Abated]
5. Namdeo s/o Rahiba Kamble
Age : Major, Occ. Agril.,
R/o : Belkund, Tq.
Ausa, Dist. Latur. [Abated].
6. Imam s/o Ghudu Saheb
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
7. Mahmad Hamid Ghudu Saheb
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
8. Prayagbai w/o Kondiba Shinde
Age : Major, Occ. Agril.,
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3 S.A. 502...2000 - [J]
R/o : Belkund, Tq. Ausa, ...... RESPONDENTS/
Dist. Latur. [Abated]. [ORI. DEFENDANTS]
WITH
SECOND APPEAL NO. 368 OF 2001
1. Gangaram s/o Vishwanath Survase
Age : 21 Yrs., Occ. Labour,
R/o : Belkund, now at Chiplun,
Dist.: Ratnagiri.
2. Kondiba s/o Vishwanath Survase
Age : 19 Yrs., Occ. Labour,
R/o : Belkund, now at Chiplun,
Dist.: Ratnagiri.
3. Laxmibai w/o Vishwanath Survase
Age : 21 Yrs., Occ. Household,
R/o : Belkund, Tq. Chiplun, ..... APPELLANTS/
Dist.: Ratnagiri. [ORI. PLAINTIFFS]
V E R S U S
1. Vishwanath s/o Gangaram Survase
Age : Major, Occ. Labour,
R/o : Belkund, Tq. Ausa,
now at Chiplun, Dist.: Ratnagiri.
2. Govind s/o Kondiba Survase
Age : Major, Occ. Agril.,
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4 S.A. 502...2000 - [J]
R/o : Belkund, Tq. Ausa,
Dist. Latur.
3. Narayan s/o Kondiba Shinde
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
4. Padmanathcharya s/o
Govindcharya
igAge : Major, Occ. Religious
work, R/o : Belkund, Tq.
Ausa, Dist. Latur. [Abated]
5. Namdeo s/o Rahiba Kamble
Age : Major, Occ. Agril.,
R/o : Belkund, Tq.
Ausa, Dist. Latur. [Abated].
6. Imam s/o Ghudu Saheb
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
7. Mahmad Hamid Ghudu Saheb
Age : Major, Occ. Agril.,
R/o : Belkund, Tq. Ausa,
Dist. Latur.
8. Prayagbai w/o Kondiba Shinde
Age : Major, Occ. Agril.,
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5 S.A. 502...2000 - [J]
R/o : Belkund, Tq. Ausa, ...... RESPONDENTS/
Dist. Latur. [Abated]. [ORI. DEFENDANTS]
.....
Mr. S.V.Jadhav Patil, Advocate for Appellants.
Mr. S.N.Lale Yelwatkar, Advocate for R - 1.
Mr. B.N.Patil, Advocate for R - 2 & 3.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 21/07/2016
JUDGMENT :
1. Second Appeal No. 502 of 2000 is filed
against the Judgment and decree of R.C.A. No. 90/1994
which was pending in the Court of the District Judge,
Latur. Second Appeal No. 368 of 2001 is filed against
the Judgment and decree of R.C.A. No. 89/1994 which
was pending before the same learned Judge of the
District Court, Latur. Both the first Appeals were filed
against the Judgment and decree of R.C.S. No. 257/1985
which was pending in the Court of the Civil Judge [Jr.
Division], Ausa, district Latur. The Suit filed by the
present appellants was decreed in their favour, but the
6 S.A. 502...2000 - [J]
first appellate Court has set aside the decree given in
favour of the appellants in the aforesaid 2 Appeals filed
by the defendants of the Suit. Heard learned counsels
for both sides.
2. Plaintiff Nos. 1 and 2 are real brothers
interse and plaintiff No. 3 is their mother. In the Suit,
plaintiff No. 1 had given his age as 21 years and the age
of plaintiff No. 2 was given as 19 years. Defendant No. 1
Vishwanath is their father. Defendant Nos. 2 and 3
Govind and Narsing are real brothers of defendant No. 1.
It is the case of the plaintiffs that defendant No. 1 was
given in adoption to Gangaram Surwase, who was father
of Prayagbai, defendant No. 8. Defendant No. 8 is the
mother of defendant Nos. 1 to 3. One Krishnabai was
sister of defendant No. 8 and Rahibai was mother of
defendant No. 8.
3. It is the case of the plaintiffs that the suit
properties were owned by Gangaram, the adoptive father
of defendant No. 1 and after his death, Rahibai widow of
Gangaram adopted defendant No. 1 as he was a son of
daughter of Gangaram and Gangaram had not left behind
7 S.A. 502...2000 - [J]
son. It is contended that due to adoption, defendant No.
1 became absolute owner of the suit properties. It is
contended that one Suit was filed by Krishnabai, daughter
of Gangaram in the year 1952-53 against defendant No.
1, Prayagbai and Rahibai for partition of the properties
left behind by Gangaram. It is contended that natural
father of defendant No. 1 viz. Kondiba had acted as next
friend of defendant No. 1 in the said Suit and in the said
Vishwanath was adopted by Rahibai and so the Suit of
Krishnabai, a daughter of Rahibai was dismissed. It is
contended that the said decision has become final as the
Appeal against the said decision was also dismissed.
4. It is the case of the plaintiffs that in view of
the aforesaid circumstances, the suit properties are
ancestral properties of plaintiff Nos. 1 and 2 and these
plaintiffs together have 3/4th share in the suit properties.
It is contended that defendant No. 1 has given the
property to defendant Nos. 2 to 8 when there was no
legal necessity and so the Suit was required to be filed.
5. Defendant Nos. 2 and 3, brothers of
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defendant No. 1, filed Written Statement. Defendant No.
1 did not turn up to contest the matter. Defendant Nos. 2
and 3 contended that there is collusion between plaintiffs
and defendant No. 1. They contended that in the past,
Suit was filed in respect of the suit properties and as per
the decision of the said Suit, the property was partitioned
and since then defendant Nos. 2 and 3 are enjoying the
respective shares as absolute owners. They alternatively
contended that they have become owners by adverse
possession as they have been enjoying their shares
separately for more than 12 years.
6. Defendant Nos. 6 and 7, the purchasers of
some suit property contended that defendant No. 1 has
sold one of the suit properties under registered sale deed
dated 13/07/1976 to defendant No. 6 for lawful
consideration and for legal necessity of joint Hindu
family. It is contended that defendant No. 1 wanted to
pay loan taken from a co-operative society. It is
contended that false contentions are now made to harass
the defendants. They have contended that defendant No.
1 had never used the name of Gangaram as adoptive
father and on the basis of the record showing the
9 S.A. 502...2000 - [J]
ownership of defendant No. 1, the property was
purchased. It is contended that from the consideration
amount of ` 8,000/-, the amount of ` 5,000/- was paid to
the co-operative society.
7. On the basis of the aforesaid pleadings,
issues were framed. Trial Court had decreed the Suit and
had held that plaintiffs together were entitled to get 3/4 th
share. It was held that defendant No. 1 was adopted son
of Gangaram and the property had come from Gangaram
to defendant No. 1.
8. First appellate Court has held that defendant
No. 1 was adopted by Gangaram but after the decree of
R.C.S. No. 384/1970, defendant Nos. 2 and 3 had started
enjoying their respective shares shown in the decree
separately as owners and so they have become owners
due to adverse possession. It is also held by the first
appellate Court that some portion of S.No. 119 purchased
by defendant No. 6 was purchased for lawful
consideration and without notice and he is bonafide
purchaser. It is also held that the said transaction was for
legal necessity.
10 S.A. 502...2000 - [J]
9. This Court 'admitted' the Appeals by order
dated 28/07/2003 on following substantial questions of
law.
[i] Whether defendant Nos. 2 and 3 have
become owners due to adverse possession in
view of the decree given in civil Suit and
their possession over the portions in their
possession for more than 12 years prior to
ig the date of filing of Suit and whether such
defence could have been taken by them if
there was joint Hindu family ?
[ii] Whether there was sufficient material to hold
that the property sold to defendant No. 6 was
sold for legal necessity ?
10. Second substantial question of law was not
formulated by this Court [other Hon'ble Judge] at the
time of admission, but the said point needs to be
considered as 2 Appeals are filed to challenge the
decisions given by the District Court.
11. Learned counsel for appellants/plaintiffs
submitted that defendant Nos. 2 and 3 were members of
joint Hindu family and so they could not have taken
11 S.A. 502...2000 - [J]
defence of ownership due to adverse possession. This
proposition is not at all acceptable. In the previous Suit,
which was decided prior to 1955, natural father of
defendant Nos. 1 to 3 has acted as guardian of defendant
No. 1 and he had contended that defendant No. 1 was
given in adoption to Gangaram, the grand-father of
defendant No. 1 on maternal side. This contention was
accepted by the Civil Court and as he was treated as son
of Gangaram, no relief of partition was given to the
daughter of Gangaram. It appears that Rahibai, widow of
Gangaram, who had taken defendant No. 1 in adoption
was party to the said Suit and she had supported the case
of adoption. Defendant Nos. 2 and 3 had no locus standi
to challenge that contention as they were not to loose
anything in the said Suit and the interest of only the
successors of Gangaram would have been affected due to
the decision of the said Suit. In view of these
circumstances, both the Courts below have held that
defendant No. 1 was adopted by Rahibai, widow of
Gangaram, and so defendant No. 1 was entitled to
succeed to the properties left behind by Gangaram. In
view of these circumstances, it further needs to be held
that defendant No. 1 had left the family of his natural
12 S.A. 502...2000 - [J]
father Kondiba and since the date of adoption, he was not
the member of joint family of Kondiba and defendant
Nos. 2 and 3. Thus, against defendant Nos. 2 and 3 also,
it can not be contended that they were members of joint
family of defendant No. 1 and other successors of
Gangaram.
12. It can be said that in the Suit filed by
defendant Nos. 2 and 3 against defendant No. 1 in the
year 1970, no partition could have been effected as
apparently the property was of absolute ownership of
defendant No. 1, if the other successors of his adoptive
father were not claiming any share in the property. It
needs to be kept in mind that as successors of Gangaram,
in the year 1970, Prayagbai - natural mother of
defendant No. 1 and Krishnabai, if she was alive as other
daughter of Gangaram, were entitled to get some share, if
Rahibai who could have claimed ownership over the
property was not there. Thus, at least some property
Prayagbai. In any case, defendant Nos. 2 and 3 could
not have claimed share in the property left behind by
Gangaram in view of the aforesaid facts and
13 S.A. 502...2000 - [J]
circumstances and the position of Hindu Law. However,
the decree was made and there is finding of the Courts
below that since the year 1969-70, defendant Nos. 2 and
3 have been in separate possession of the shares which
are shown to be given to defendant Nos. 2 and 3 in the
said decision. Thus, defendant Nos. 2 and 3 came in
possession of some suit property and since then they have
been in continuous possession of the said property. The
revenue record is to that effect and that circumstance is
not disputed.
13. The evidence on record shows that plaintiff
Nos. 1 and 2 were not born in the year 1971, when the
decree was prepared in R.C.S. No. 384/1970. The
evidence of plaintiff No. 1 shows that he was born in the
year 1972. At one place, trial Court has observed that
ages of plaintiff Nos. 1 and 2 were shown as 17 years and
15 years respectively. The Suit was filed in the year
1985, the previous suit was filed in the year 1970 and the
decree was prepared on 27/07/1971. The submission
was made by the learned counsel for the
plaintiffs/appellants that probably plaintiff No. 1 was in
the womb of mother and his right needs to be protected
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in respect of ancestral property. There is no such
pleading. On the contrary, there is admission of plaintiff
No. 1 that he was born in the year 1972. Thus, rightly or
wrongly the disposition of property made by defendant
No. 1 was done prior to the birth of plaintiff Nos. 1 and 2.
Whether the title really passed to defendant Nos. 2 and 3
is a different question. Defendant Nos. 2 and 3 are
claiming ownership due to adverse possession and so only
the date of starting of adverse possession can be
considered on the basis of this record. As the present Suit
was filed in the year 1985, the first appellate Court has
held that defendant Nos. 2 and 3 have become owners
due to adverse possession. The first appellate Court
placed reliance on the observations made by this Court in
the case reported as A.I.R. (32) 1945 Bombay - 63
[ Rachappal Totappa and another Vs. Madivalawa
Rachappa], which read as under.
" In case where it is clear that, the
person entering into possession was
under no duty to the minor and
entered into possession for his/her
own benefit and in assertion of his/her
title hostile to that of the minor,
limitation would begin to turn from
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the date when she took possession
............................ By the express
terms of Section of the Limitation Act,
the extended period of 3 years after
majority can be claimed only by a
person entitled to institute a Suit at
the time from which the period of
limitation to be reckoned. The person
who was not in existence at the time
does not come within that description
ig and, therefore, he is not entitled to the
years extension."
14. In the above case, this Court has discussed
the provisions of Section 6 of the Limitation Act and it is
held that only if the person having disability like minority
is in existence on the date of disputed transaction or
incident, the benefit of provisions of Section 6 can be
claimed. There can not be any dispute over this
proposition. The things can be looked from other angle
also. If the property was sold by defendant No. 1 or he
had parted with the property in any way prior to the birth
of plaintiff Nos. 1 and 2, he had right to do so as he was
the sole co-parcener, as successor of Gangaram. In view
of these circumstances, there was no right to plaintiff
Nos. 1 and 2 to challenge the disposition of property
16 S.A. 502...2000 - [J]
made by defendant No. 1. In that view of the matter, the
decree of possession in respect of the property given by
the trial Court could not have been given.
15. So far as the property sold to defendant No.
6 is concerned, it can be said that the evidence is given to
prove that there was legal necessity. Admittedly, there
was loan of ` 5,000/- taken from the co-operative society
and the evidence is given to show that the said loan was
paid after selling the property to defendant No. 6. This
finding is on question of fact. There is evidence of one
Manohar, employee of a co-operative society. Account
extract was produced of the loan account of defendant
No. 1. There is one circumstance that the sale deed was
executed in the year 1976 and the account extract shows
that till the year 1973, the loan was repaid. The evidence
of witness No. 2 of defendant shows that some record
was produced at Exh. 65 regarding repayment of loan
and it was the certificate issued by Vivid Sahakari Society,
Belkund. It shows that on 16/06/1976 the amount of `
5,000/- was deposited towards repayment of loan with
the society. It needs to be kept in mind that defendant
No. 1 did not turn up to contest the Suit and it is clear
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that he wants to get back the properties from defendant
Nos. 2 and 3. The plaintiff has admitted in his cross
examination that there was severe drought in the year
1976-77 and they had shifted to Chiplun for doing the
labour work. He has shown ignorance that from the sale
proceeds, loan of the society was paid.
16. In view of the aforesaid material, this Court
holds that there is no possibility of interfering the
findings given and they are on the question of facts. The
reasoning given by the trial Court was not convincing.
17. Learned counsel for the appellants placed
reliance on some cases reported as AIR 1963 Madhya
Pradesh - 100 (V 50 C 33) [ Sardar Vijaysingh Rao
Chorpade Vs. Jeewan Lal Ram Das Jaiswal], AIR
1984 Gujarat - 32 (1) [ Patel Meghji Dayal (deceased
by L.Rs.) & Ors. Vs. Patel Jivraj Pragji & Ors.] and
AIR 1966 Bombay - 64 (Vol. 53, C.12) [ Smt. Indubai
w/o Pandhari Naik Vs. Vyankati Vithoba Sawadha &
Ors.].
18. On the basis of the observations made,
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learned counsel for the appellants submitted that the
Court below could not have held that defendant Nos. 2
and 3 have become owners due to adverse possession.
This point is already discussed and it is already discussed
that defendant Nos. 2 and 3 were not the members of
joint Hindu family of defendant No. 1. Other cases are in
respect of the period of limitation when during minority
of plaintiff, alienation is made by father. This point is
also discussed. Thus, there are no merits in the Appeals.
Both the points are accordingly answered against the
appellants.
19. In the result, both Second Appeals stand
dismissed. In view of dismissal of the Second Appeals,
all Civil Applications and Cross Objection stand disposed
of.
[T.V.NALAWADE, J.]
KNP/S.A. 502....2000 - [J]
