Bombay High Court
Bhagwan Ganpat Ambate & Others vs Ranu Manikrao Ambate & Another on 24 June, 2016
Bench: T.V. Nalawade
1 S.A. 456.1991 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 456 OF 1991
WITH
CIVIL APPLICATION NO. 5081 OF 2015
1. Bhagwan s/o Ganpat Ambte
Age : 35 Yrs., Occ. Agricultural,
R/o : Khande Pargaon,
igTaluka & Dist. : Beed.
2. Mohan s/o Udhavrao Amte
[deceased Thr. L.Rs.]
2-A. Vimalbai w/o Mohan Amte
Age : 54 Yrs., Occ. Service,
R/o : Shahu Nagar, Beed,
Dist. : Beed.
2-B. Sandeep s/o Mohan Amte
Age : 28 Yrs., Occ. Service,
R/o : Shahu Nagar, Beed,
Dist. : Beed.
2-C. Sachin s/o Mohan Amte
Age : 25 Yrs., Occ. Service,
R/o : Shahu Nagar, Beed,
Dist. : Beed.
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2 S.A. 456.1991 - [J]
3. Rajaram s/o Ganpati Amte
Age : 40 Yrs., Occ. Agricultural,
R/o : Khande Pargaon, ..... APPELLANTS/
Taluka & Dist. : Beed. [ORI. DEFT.NOS. 1 TO 3]
V E R S U S
1. Ranu s/o Manikrao Amte
[deceased Thr. L.Rs.]
1-A. Gumphabai w/o Ranu Amte
Age : 70 Yrs., Occ. Household,
R/o : Khande Pargaon,
Taluka & Dist. : Beed.
1-B. Ramkisan s/o Ranu Amte
Age : 45 Yrs., Occ. Agril.,
R/o : Khande Pargaon,
Taluka & Dist. : Beed.
2. Ramnarayan s/o Manikrao Amte
Age : 30 Yrs., Occ. Agril.,
R/o : Khande Pargaon,
Taluka & Dist. : Beed.
[Abated as per Addl. ..... RESPONDENTS/
Registrar's Order dated [ ORI. PLTFF. AND
08/04/1992]. ORI.DEFT.NO.4]
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3 S.A. 456.1991 - [J]
.....
Mr. G.K.Naik-Thigale, Advocate for Appellants.
Mr. K.R.Doke, Advocate for Resp. No. 1.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 24/06/2016
JUDGMENT :
ig The Appeal is filed against the Judgment
and Decree of R.C.A. No. 174/1986 which was pending in
the District Court, Beed. The Appeal was filed in the
District Court by the plaintiff of R.C.S. No. 290/1984
which was pending in the Court of the Civil Judge
[Sr.Division], Beed. The relief of permanent injunction
was claimed by the plaintiff, but the trial Court had
refused the said relief. The first appellate Court has
granted such relief. Original defendant Nos. 1 to 3 have
challenged the decision of the District Court. Civil
Application is filed by the appellants for permission to
produce documents viz. receipt allegedly executed by
defendant No. 4 and plaintiff in respect of handing over
of possession to the present appellants. Heard both
4 S.A. 456.1991 - [J]
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 agricultural
admeasuring 51 R., G.No. 165 admeasuring 1 H. 5 R.
The lands are situated at Khande Pargaon, Tahsil and
district Beed. Defendant No. 4 is real brother of plaintiff.
Defendant Nos. 1 to 3 contended that they have
purchased share of defendant No. 4 from the aforesaid
lands.
3. It is the case of the plaintiff that the suit
properties are ancestral properties of plaintiff and
defendant No. 4. It is contended that plaintiff is karta of
the joint family of the plaintiff and defendant No. 4 and is
cultivating the land for the joint family. It is contended
that as no partition has taken place between defendant
No. 4 and the plaintiff, defendant No. 4 was not in a
position to hand over separate and actual possession of ½
share to anybody. It is contended that as defendant Nos.
1 to 3 obstructed the possession of the plaintiff over the
5 S.A. 456.1991 - [J]
suit property, cause of action took place for the Suit.
4. Defendant Nos. 1 to 3 filed joint Written
statement and contested the Suit. They contended that
defendant No. 4 was the owner of ½ portion of aforesaid
suit lands and he was in actual possession of his share in
the suit lands. It is contended that defendant No. 4 had
sold his share to one Shaukat Ali under registered sale
deed. It is contended that Shaukat Ali sold this property
to one Abdul and from Abdul defendant Nos. 1 to 3 have
purchased it under the sale deed on 08/07/1992. The
boundaries of the share purchased by defendant Nos. 1 to
3 are mentioned in the Written Statement. It is
contended that as defendants are in separate possession
of this portion, injunction can not be given against them
in respect of that portion.
5. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. The trial Court had
dismissed the Suit by holding that plaintiff and defendant
No. 4 were initially jointly owning the property and there
was joint possession and so defendant Nos. 1 to 3, as
purchasers of share of defendant No. 4, are entitled to
6 S.A. 456.1991 - [J]
enjoy joint possession along with the plaintiff. The trial
Court relied on the recital of the sale deed executed in
favour of defendant Nos. 1 to 3 by the last owner Abdul.
The first appellate Court referred the principles of Hindu
Law and has held that as no partition has taken place
between the plaintiff and defendant No. 4, defendant No.
4 was not in a position to hand over joint possession of
the property to Shaukat Ali, the first purchaser.
6. This Court [other Hon'ble Judge] admitted
Appeal on 28/10/1991 by holding that substantial
questions of law need to be formulated as mentioned in
Appeal memo in grounds Nos. (II) to (IV), (VII),(X),(XIII)
and (XVI). The grounds are as under.
(II) The Courts below have not properly
appreciated the provisions of Section 38 of
the Specific Relief Act.
(III) The lower appellate Court ought to have
considered that the defendant No. 1 is
predecessor-in-title of defendant Nos. 1 to 3,
had half share in the suit property and in
pursuance to the sale deed he handed over
possession to the extent of his share to the
7 S.A. 456.1991 - [J]
purchasers and as such no injunction can be
granted against the purchasers.
(IV) It ought to have been seen that the
defendant No. 4 had executed first sale deed
in the year 1981 thereafter the second sale
transaction was of 1982 and the present
appellants are the purchasers of the third
rank, who are put in possession in pursuant
to the sale deed effected by the defendant
ig No. 4 who had admittedly joint share in the
suit property and as such in such
circumstances, no injunction can be granted
against the person who has admittedly has
share in the property.
(VII) The Court below has erred in holding that
the property has not been specifically
described in the sale instances of the
predecessor-in-title of the plaintiff, this can
not be the ground for issuing injunction
against the defendants and setting aside the
decree passed by the trial court.
(X) The Court below has misread the principles
noted in Hindu Law by Mulla 1986 Edition,
Page 349.
(XIII) The Court below has not taken into
consideration the primary principles that no
8 S.A. 456.1991 - [J]
injunction can be issued either when the
property is joint or when the alienation
effected by a co-parcner in the joint family
and has put the purchaser in possession in
pursuant to the said alienation.
(XVI) It ought to have been seen that Mir Shaukat
Ali being predecessor -in-title of the
defendant Nos. 1 to 3 and the plaintiff being
signatory to the possession receipt executed
ig by him, he is estopped from contending that
no possession has been parted in favour of
the purchasers.
7. From the aforesaid contentions and the
principles of Hindu Law, it can be said that most of the
aforesaid points are irrelevant and they are not at all
involved in the Second Appeal. The main points which
involve substantial questions of law can be as follows.
[i] Whether defendant Nos. 1 to 3 have proved
that there was partition between plaintiff and
defendant No. 4 and defendant No. 4 was
enjoying the share separately when he
executed sale deed in favour of Shaukat
Ali ?
9 S.A. 456.1991 - [J]
[ii] Whether defendant Nos. 1 to 3 have right to
claim joint possession with the plaintiff in
view of the principles of Hindu Law and in
view of the submission made first time in this
Appeal ?
8. In a case governed by Hindu Law, the burden
to prove partition is always on the party who contends
that partition has taken place. The first sale deed was
executed on 25/08/1981 by defendant No. 4 in favour of
Shaukat Ali. It was necessary for defendant Nos. 1 to 3 to
prove that on the date of sale deed, on 25/08/1981,
defendant No. 4 was in possession of his separate share
or subsequent to that he got share separated and handed
it over to defendant Nos. 1 to 3.
9. Defendants have not come with specific case
on the date of partition. The 7/12 extracts at Exhs. 5 to 7
and 27 to 29 are for the years 1982-83 to 1984-85. They
show that plaintiff and defendant No. 4 had equal share
in the suit lands but in possession column, no separate
possession of these 2 brothers was shown. Exh. 36 is the
extract prepared during implementation of consolidation
scheme and it also shows that these 2 brothers were
10 S.A. 456.1991 - [J]
cultivating the land jointly in the year 1972-73.
10. Admittedly, in the revenue record no
partition was shown to be effected either before the
aforesaid date of sale or after it. It appears that
defendant No. 4 also did not support the case of
defendant Nos. 1 to 3 during trial. Exh. 63 is the sale
deed executed in favour of Shaukat Ali by defendant No.
4 and in this document it was not mentioned that
defendant No. 4 was in separate possession of his share.
The contents of this sale deed show that defendant No. 4
had sold his ½ share in the aforesaid agricultural lands.
This sale deed was not signed even as a witness by the
plaintiff.
11. Shaukat Ali, the purchaser of Exh. 63, is
examined as witness by defendant Nos. 1 to 3. In the
evidence also, he has stated that in Exh. 63 he had
purchased ½ share of defendant No. 4. He tried to
improve the version that on the second date of sale deed,
defendant No. 4 and the plaintiff partitioned the land and
separate possession was given to him. Such was not the
case in the pleadings and no such record was produced.
11 S.A. 456.1991 - [J]
Here it needs to be mentioned that Civil Application
which is under consideration is filed for permission to
produce one so called possession receipt prepared on the
date of sale deed executed in favour of Shaukat Ali.
Shaukat Ali did not mention about such document. There
are many other circumstances creating doubt about the
conduct of defendant Nos. 1 to 3. Some 7/12 extracts
were tried to be shown to this Court, on which attempt
was made by defendant Nos. 1 to 3 to show that
subsequently separate possession was shown but this
record was not produced in the Court and the nature of
entries was also highly suspicious. It can be said that to
avoid criminal action, such record was not produced. It
can be said that defendants are trying to protract the
things and they are trying to create complications. In
view of these circumstances, this Court holds that no
permission can be granted to produce the document on
which there is thumb impression allegedly put by the
plaintiff.
12. In the cross examination, Shaukat Ali has
admitted that he had filed complaint that plaintiff had
taken away crops. In that case, plaintiff was acquitted.
12 S.A. 456.1991 - [J]
In cross examination, he tried to say that there was one
agreement of sale in which separate possession was
shown of defendant No. 4 but that document was also not
produced on record. He tried to say in the cross
examination that partition had taken place between
plaintiff and defendant No. 4 but he has no independent
witness. He stated that he is not from that village. All
these circumstances create probability in favour of the
plaintiff that defendant No. 4 had not handed over
possession to Shaukat Ali as there was no partition
between the plaintiff and defendant No. 4.
13. The Courts below have not believed the
evidence of the defendants and their witness Shaukat Ali.
There is word against word. Both the Courts below have
held that there was no partition. The finding given by the
trial Court on this point was not challenged by defendant
Nos. 1 to 3 and this single circumstance is sufficient for
dismissal of the present Appeal.
14. It appears that in the sale deed executed by
Abdul at Exh. 48 and 49, first time the boundaries were
shown. But in the sale deed executed by Shaukat Ali in
13 S.A. 456.1991 - [J]
favour Abdul, there are no such boundaries. On the basis
of the sale deed, mutations were made and the names
were entered in the ownership column, but the names of
defendants and Shaukat Ali were never entered in crop
cultivation column. Under the provisions of Maharashtra
Land Revenue Code, every year crop enquiry is held and
the names of the persons are entered in the crop
cultivation column. At the relevant time, there was
practice of entering the names but the names of the
defendants were never entered. Thus, it can not be
believed that defendants/appellants were cultivating any
portion of the suit land.
15. The first appellate Court has rightly relied on
the principles of Hindu Law from Edition 1986 quoted in
para Nos. 3,4 and 9 to hold that purchaser from co-
parcener can not claim joint possession. Thus, it was
necessary for defendant Nos. 1 to 3 to file Suit for
partition and get their share separated. Learned counsel
for defendant Nos. 1 to 3 placed reliance on 2 cases
reported as (2013) 5 Supreme Court Cases - 218
[Nasib Kaur and Ors. Vs. Dulari Singh and Ors.] and
(2002) 9 Supreme Court Cases - 608 [Sakhahari
14 S.A. 456.1991 - [J]
Parwatrao Karahale and Anr. Vs. Bhimashankar
Parwatrao Karahale]. In the first case, the facts were
different. The property was not ancestral, it was not of
joint family of Hindu. In the second case, it is held that
all co-sharers are entitled to joint possession when the
property belongs to joint family. This proposition can
not be used in favour of defendant Nos. 1 to 3 as they are
stranger purchasers.
16. In the result, Second Appeal stands
dismissed. In view of dismissal of Second Appeal, C.A.
No. 5081 of 2015 does not survive and stands disposed
of.
17. At this stage, learned counsel for the
appellants requested for continuation of interim relief. It
is rejected.
[T.V.NALAWADE, J.]
KNP/S.A. 456.1991 - [J]
