Bombay High Court
Mohan S/O Bhagwan Solanke And ... vs Chandresh S/O Rameshchandra @ ... on 8 June, 2016
Bench: Ravi K. Deshpande
sa116.13.J.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.116 OF 2013
1] Mohan s/o Bhagwan Solanke
Aged about 32 years
Occ: Agriculturist.
2] Mirabai w/o Bhagwan Solanke
Aged about 53 years,
Occ: Household.
3] Kusum d/o Bhagwan Solanke
Aged about 31 years
(Now Sau. Kusum w/o Rajendra Jadhao)
All R/o Buldana, Tq. & Dist. Buldana. ....... APPELLANTS
...V E R S U S...
1] Chandresh s/o Rameshchandra @ Babulal
Sharma, Aged about 38 years,
Occ: Business.
2] Yogesh s/o Rameshchandra @ Babulal
Sharma, Aged about 35 years,
Occ: Business.
Both R/o Chikhali, Tq. Chikhali,
Dist. Buldhana.
(LRs of original 3] Smt. Janabai wd/o Tukaram Kusalkar
defendant No.1 on Aged about 63 years,
RA joined as
Respondent no.4 R/o Sawargaon Dukre,
originally in RCA Tq. Chikhali, Dist. Buldana.
No.65/06)
(LRs of original 4] Anil s/o Tukaram Kusalkar
defendant No.1 on Aged about 35 years,
RA joined as
Respondent no.4 Occ: Service,
originally in RCA R/o Sawargaon Dukre,
No.65/06)
Tq. Chikhali, Dist. Buldana.
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5] Bhagwan s/o Sampat Solanke
Aged about 61 years,
Occ: Agriculturist
R/o Jay Sthambh Chok, Buldana,
Tq. & Dist. Buldana. ....... RESPONDENTS
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Shri R.L. Khapre, Advocate for Appellants.
Shri Akshay Naik, Advocate for Respondent Nos.1 and 2.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 8
ORAL JUDGMENT
1] Heard the learned counsels appearing for the parties.
The only contention raised by Shri Akshay Naik, the learned counsel
appearing for the respondent No.1 is that the lower Appellate Court was
right in reversing the finding of the trial Court on the aspect of
possession. He submits that the lower Appellate Court has appreciated
the evidence on record to hold that the plaintiff has failed to establish
the possession of the suit property pursuant to the possession receipt
executed on 18-07-1989 in response to the proceedings of Regular
Darkhast No.30 of 1989. Hence, the only substantial question of law
which arises for consideration is as under:
Whether the lower Appellate Court was justified in
reversing the finding of fact recorded by the trial Court on
the aspect of possession ?
sa116.13.J.odt 3/6
2] Admit.
3] Heard finally by consent of the learned counsels appearing
for the parties.
4] It is not in dispute that Regular Civil Suit No.53 of 1987 was
filed by the plaintiff challenging the alienation made by the father
on 15-01-1986 in favour of the defendant No.1 in the present case.
The alienation was set aside on 28-09-1988 and the decree for
possession was passed in favour of the plaintiff. The claim of the plaintiff
is that he secured possession of the property on 18-07-1989 through
Court in execution proceedings i.e. Regular Darkhast No.30 of 1989.
There is no dispute that the said suit also pertained to the Survey
No.34/4 which is also the subject-matter of the present suit, admeasuring
1.0 HR of land. The decree passed by the trial Court in Regular Civil Suit
No.53 of 1987 was never challenged by the defendant No.1.
5] In the light of the aforesaid undisputed factual position, the
Regular Civil Suit No.20 of 2002 was decreed for grant of perpetual
injunction restraining the defendant from disturbing the possession of
the plaintiff over the suit property and further alienating it. The lower
Appellate Court has reversed this decree in Regular Civil Appeal No.65 of
2006 decided on 23-01-2013.
sa116.13.J.odt 4/6
6] On the aspect of the findings in respect of the substantial
question of law framed by this Court, the trial Court has observed in para
17 of its judgment as under:
17. It is admittedly record of rights i.e. 7/12 extracts etc.
the name of defendant No.1 shown and it was argued that the
same has not been challenged since along. Plaintiffs have also
not disputed this fact that in record of rights, possession of
defendant No.1 was shown till it was sold out to defendants
No.2 and 3 and thereafter, the possession shown of defendant
No.2 and 3. But, plaintiffs proved the fact that it recovered the
possession of suit property in a execution proceeding No.30/89
on 18.07.1989 and thus these entries in record of rights
proved to be wrong. Defendant No.1 himself admitted this
fact, in a suit filed one R.C.S.No.2/98 for declaration and
setting aside the decree passed in R.C.S. No.53/87 and
claimed for recovery of possession of suit field from plaintiffs.
In the said suit which was filed in the year 1998, defendant
No.1 had also claimed for mesne profits and for an enquiry
U/o. 20 Rule 12 of C.P.C. from the date of its dispossession
since the month of July 1989 in the said execution proceeding
No.30/89. Thus, this admission is binding upon defendant
No.1 about parting of possession of suit property infavour of
plaintiffs and claimed for its recovery of possession. Its copy of
said suit R.C.S.No.2/98 filed by defendant No.1 Ex.93 is
placed on record. It is seen that as per order dated
06.08.2002, this suit was withdrawn by defendant No.1. But,
this admission of defendant No.1 is the best evidence. Said
admission is very specific clear and therefore, binding upon
defendant No.1. Thus, it is clear that as per admission by
defendant No.1 in the said suit R.C.S. No.2/98 which is
binding upon him as per Section 17 of Indian Evidence Act.
Defendant No.1 was not in actual possession of suit property
since the dated 18.07.1989 i.e. since date the possession was
handed over in execution proceeding No.30/89 in favour of
plaintiffs. It is seen that thereafter, this defendant No.1 was
never in possession of suit property and possession of plaintiffs
was continued over the suit property till today. Sale-deed
dated 15.01.1986 infavour of defendant No.1 declared as null
and void and not binding upon plaintiffs by judgment in
sa116.13.J.odt 5/6
R.C.S. No.53/87. This decree is not set aside and as per
decree, plaintiffs obtained possession of suit property from
defendant No.1. Therefore, it is proved that this defendant
No.1 had remained no any right, title or interest in the suit
property. In the execution proceeding, actual possession was
delivered infavour of plaintiffs and since the month of July
1989 these plaintiffs are in actual possession of suit property.
They are lawful owner having right, title and interest in the
suit property and their possession which they obtained in
execution proceeding, is lawful possession. Entries in the
record of rights appearing on the name of defendant No.1 and
thereafter, on the name of defendant Nos.2 and 3 after it was
sold out as per alleged sale-deeds are proved to be wrong
entries and will not make or unmake any title in its favour.
The lower Appellate Court though considered the aspect in para 15 of its
judgment, ignored the admission of the defendant No.1 considered by
the trial Court in terms of Section 17 of the Evidence Act. The lower
Appellate Court holds that the possession receipt shows Survey No.38/4
instead of 34/4. The lower Appellate Court has ignored the other aspects
taken into consideration by the trial Court namely (i) that the defendant
No.1 himself had filed Regular Civil Suit No.2 of 1998 claiming a
declaration that the decree passed in Regular Civil Suit No.53 of 1987
was collusive and not binding upon him and that suit was withdrawn
(ii) that M.J.C. No.19 of 1989 was filed by the defendant No.1 through -
Shri Vasantrao Naik Magasvargiya Gruh Nirman Sahakari Sanstha for
restoration of possession was dismissed and the appeal against it was
withdrawn and (iii) the other aspects which are apparent in the findings
recorded by the trial Court. In view of this, the finding recorded by the
sa116.13.J.odt 6/6
lower Appellate Court on the aspect of possession cannot be sustained
being perverse.
7] In the result, the second appeal is allowed. The judgment
and order dated 23-01-2013 passed by the learned Principal District
Judge, Buldhana in Regular Civil Appeal No.65 of 2006, is hereby
quashed and set aside and the judgment and decree passed by the trial
Court in Regular Civil Suit No.20 of 2002 is restored. No order as to
costs.
JUDGE
NSN
