Bombay High Court
Ramesh Tukaram Sable And Ors vs Totaram Natthu Sable And Ors on 29 June, 2016
Bench: T.V. Nalawade
1 S.A. 113.2010 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 113 OF 2010
1. Ramesh S/o Tukaram Sable
Age : 47 Yrs., Occ. Agril.,
R/o : Village Shelud, Tq.
Bhokardan, Dist. : Jalna,
At present R/o : H.No. 217,
igGalli no. 1, Nyayanagar,
Aurangabad.
2. Ananda S/o Natthu Sable
Age : 65 Yrs., Occ. Agril.,
R/o : Village Shelud, Tq.
Bhokardan, Dist. : Jalna,
3. Smt. Kausabai W/o Natthu Sable
Age : 65 Yrs., Occ. Household,
R/o : Village Shelud, Tq.
Bhokardan, Dist. : Jalna,
4. Smt. Gayabai W/o Ananda Sable
Age : 60 Yrs., Occ. Agril.,
R/o : Village Shelud, Tq. ..... APPELLANTS/
Bhokardan, Dist. : Jalna, [ORI. DEFENDANTS]
V E R S U S
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2 S.A. 113.2010 - [J]
1. Totaram S/o Natthu Sable
Age : 80 Yrs., Occ. Agril.,
R/o : Village Shelud, Tq. ..... RESPONDENT/
Bhokardan, Dist. : Jalna, [ORI. PLAINTIFF]
2. Suwarna W/o Shriram Dhanraj
Age : 33 Yrs., Occ. Household,
R/o : Khatuwadli Shaikh Wada,
Jogeshwari Zopadpatti, Tq.
Gangapur, Dist. : Aurangabad/
3.
igShobha W/o Ramesh More
Age : 29 Yrs., Occ. Household,
R/o : Gummi, Tq. & Dist. :
Buldhana.
4. Sheela W/o Sunil Hiwale
Age : 29 Yrs., Occ. Household,
R/o : Kasgaon, Tq.
Jafrabad, Dist. : Jalna,
[Deleted as per Court's
Order dated 26/06/2009].
5. Mathura W/o Sanjay Jadhav
Age : 27 Yrs., Occ. Household,
R/o : C/o Gaikwada Wada,
Bhimnagar, Bhausingpura,
Aurangabad.
6. Bibi W/o Shriram Jadhav
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3 S.A. 113.2010 - [J]
Age : 22 Yrs., Occ. Household,
R/o : C/o Ramesh Bhalerao
Wada, Galli No. 11, Sanjaynagar,
Mukundwadi, Aurangabad.
7. Amrapali D/o Tukaram Sable
Age : 20 Yrs., Occ. Household,
R/o : Shelud, Tq. Bhokardan, .... RESPONDENTS/
Dist. : Jalna, [ORI. DEFENDANTS]
ig .....
Mr. Milind Joshi, Advocate for Appellants.
Mr. S.B.Ghute, Advocate for R - 2 & 5.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 29/06/2016
JUDGMENT :
1. The Appeal is filed against the Order of
R.C.A. No. 41/1994 which was pending in the Court of
the II Ad-hoc District Judge, Jalna. The Appeal was filed
by the present respondent/plaintiff of R.C.S. No.
121/1988 which was pending in the Court of the Civil
Judge [Jr.Division], Bhokardan, District Jalna. The Suit
filed for relief of permanent injunction was dismissed by
4 S.A. 113.2010 - [J]
the trial Court and that decision is set aside by the first
appellate Court by granting the relief in favour of the
respondents. Heard both sides.
2. The Suit was filed in respect of the portion of
8 Acres 9 gunthas from land G.No. 72 [old S.No. 18/1]
situated at village Shelud, Tahsil Bhokardan, District
Jalna. It is the case of the plaintiff that he has purchased
the suit property from its owner Sitabai under registered
sale deed dated 04/07/1968 for the consideration of
` 15,000/-. It is contended that he was put in possession
of the suit property and since the date of the sale deed,
he has been in possession as owner.
3. Defendant Nos. 1 and 2 are real brothers of
the plaintiff. It is the case of the plaintiff that the
defendants have purchased some portion which is
western portion of aforesaid land from Sitabai. It is
contended that the defendants have no concern with the
suit property, which belongs to the plaintiff, but they are
creating obstruction in the possession of the plaintiff over
the suit property. It is the case of the plaintiff that cause
of action for the Suit took place on 02/06/1988.
5 S.A. 113.2010 - [J]
4. The defendants contested the Suit by filing
Written Statement. It is their case that the plaintiff,
defendant Nos. 1 and 2 and their father were tenants of
Sitabai in S.No. 18/1. It is contended that since the life
time of the father, plaintiff was 'karta' of joint Hindu
family, as their father was simpleton person. It is
contended that due to these circumstances, the property
was entered in the name of the plaintiff in the revenue
record as owner but he is in possession as 'karta' over the
suit property. It is contended that the property was
purchased in the name of the plaintiff but it belongs to
plaintiff and defendants, so relief of injunction can not be
given against them. It is their case that R.C.S. No.
40/1978 was filed by the plaintiff against the defendants
and Sitabai but the Suit was dismissed and so the present
Suit is not tenable. It is, therefore, contended that to
deprive the plaintiffs, false Suit is filed.
5. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. Trial Court held
that the sale deed executed in favour of the plaintiff was
not proved and plaintiff further failed to prove that he is
in lawful possession of the suit property. The first
6 S.A. 113.2010 - [J]
appellate Court has held that the defendants have not
disputed the fact that the sale deed was executed in the
name of the plaintiff and so the contents of the sale deed
can be read. It is also held that as it was registered sale
deed, there was no need of examination of attesting
witnesses to prove the contents. The District Court has
considered the revenue record showing the possession of
the plaintiff and on that basis permanent injunction is
given in favour of the present respondents.
6. This Court has gone through the reasonings
given by the Courts below and also the record. The
evidence of the plaintiff is in accordance with the
aforesaid pleadings in the plaint. He examined one
Sonawane, the owner of the adjacent land, in support of
his case. The evidence is given that the plaintiff is in
possession of the suit property. The tenor of cross
examination of this witness for the defendants show that
there is no dispute that this witness has personal
knowledge about everything.
7. Defendant No. 2, brother of plaintiff, has
given evidence which is in accordance with the pleadings
7 S.A. 113.2010 - [J]
in the Written Statement. He has deposed that initially
the entire area of aforesaid survey number was with joint
Hindu family of the plaintiff, defendants and their father
for cultivation on 'thoka' basis. He has deposed that
subsequently the suit property was purchased under sale
deed in the name of the plaintiff, but it was purchased by
the joint Hindu family. The defendant has given evidence
that after selling one ancestral land, the consideration
was collected and from that amount the suit property was
purchased by the joint Hindu family. The evidence of this
witness shows that he has tried to say that since the year
1988 till the order of temporary injunction which was
made in favour of the plaintiff, they were in joint
possession. Thus, incorrectly he has admitted that after
the year 1988, on the date of the Suit, they were not in
possession. In the evidence, defendant No. 2 has
produced some letters at Exh. 56 to 60 to show that they
were leaving in joint family. On the basis of this record,
submissions were made that the brothers were sending
money to each other and they were also cultivating the
land jointly. However, there is further admission that
they started leaving separate since 1977.
8 S.A. 113.2010 - [J]
has stated that the ancestral land was sold for the
consideration of ` 300/- to one witness examined by the
defendants. No copy of the sale deed is produced. As
the property was sold to the plaintiff under registered
sale deed and there is no record to show that there was
ancestral or joint family property with the plaintiff and
the defendants at the relevant time, burden was heavy on
the defendants to prove that there was nucleus yielding
sufficient income or there was already some money with
the family from which the suit property could have been
purchased. There is no such documentary evidence.
Shamrao Manjaji is examined to show that he has
purchased 1 Acre 25 gunthas from the plaintiff for the
consideration of ` 300/-. It is already observed that the
said sale deed is not produced. Further, in the Written
Statement, defendants had come with the case that the
property was sold by their father and not by the plaintiff.
In view of the nature of the defence taken by the
defendants, it was necessary to establish that at or the
relevant time the property was sold by the joint family
and from the sale proceeds the suit property was
purchased. Another witness Govind has given evidence
9 S.A. 113.2010 - [J]
which is similar to the evidence of defendant No. 2.
9. Witness kisan examined by the defendants
has given evidence that the plaintiff and the defendants
were living separate since last 10 - 15 years. He has
deposed that the property was purchased for joint Hindu
family.
ig The revenue record shows that only the
plaintiff is shown as owner of the suit property and his
name is entered in the crop cultivation column also. Copy
of the order made by the revenue authority is produced at
Exh. 69 to show that the proceeding was started by the
plaintiff against Sitabai. This proceeding was dropped
and the observations are made by the revenue authority
that the possession of the plaintiff was there and it was
not disputed by Sitabai. The revenue record shows that
initially the names of the plaintiff and also one defendant
Ananda were entered in the revenue record that they
were owners, but the entries were separate and they were
not showing that they were members of joint Hindu
family or any of them was 'karta'. Then the record of Gut
number was created and revenue record of G.No. 18/1
10 S.A. 113.2010 - [J]
shows that this property belongs to the plaintiff and he is
in possession of the property. If the family was joint and
the properties were purchased for joint Hindu family,
both the properties would have been purchased in the
name of the plaintiff, but that did not happen. The
remaining property from the same land was purchased by
the defendants and their names are entered separately in
the revenue record.
11. Learned counsel for the appellants placed
reliance on two cases reported as AIR 1961 Supreme
Court - 1268 [ Mallesappa Bandeppa Desai and
another Vs. Desai Mallappa @ Mallesappa and
another] and AIR 1983 Allahabad - 348 [ Patram
Singh (deceased by L.Rs.) Vs. Bahadur Singh].
12. The facts of the reported cases were different
and there was the record in support of the cases of joint
Hindu family. In the present case, father was alive and so
it was not possible to infer that the plaintiff was 'karta'.
Further, there is no evidence to prove the existence of
nucleus or income of joint Hindu family. In view of the
facts of the present case, this Court holds that the
11 S.A. 113.2010 - [J]
observations made in the reported cases are of no help to
the appellants/defendants. This Court holds that the
District Court has not committed any error in giving the
relief of permanent injunction. No substantial question of
law as such is involved in the matter.
13. In the result, Second Appeal stands
dismissed. In view of dismissal of the Second Appeal,
C.A. No. 7057 of 2016 stands disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 113.2010 - [J]
