Bombay High Court
Champat Narayan Kawale & 5 Ors vs Madhukarrao Jaikrushna Bansod on 30 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.400 OF 2002
1] Champat s/o Narayan Kawale,
Aged about 74 years, Labourer,
R/o Talegaon (Dashasar),
Tq. Chandur Rly. Dist. Amravati.
2] Venkat s/o Narayan Kawale (dead)
through L.Rs.
I]
Leeabai wd/o Venkatrao Kawale.
II] Ramesh s/o Venakatrao Kawale.
III] Ganesh s/o Venakatrao Kawale.
IV] Gopal s/o Venakatrao Kawale.
V] Tai w/o Rameshrao Vairagade.
VI] Maya w/o Madhukarrao Vaijapurkar.
All Major & C/o Resp. No.2 II,
Plot No.22, Vishram Nagar, Nagpur. ....... APPELLANTS
...V E R S U S...
1] Madhukarrao s/o Jaikrushna Bansod,
Aged about 75 years, Agriculturist and
business, R/o Talegaon (Dashasar),
Tq. Chandur Rly. Dist. Amravati.
Since dead through proposed L.Rs.
1-A Smt. Ambika @ Vasanti wd/o Madhukarrao
Bansod, Age Major, Occ: House Hold.
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1-B Smt. Ujawala wd/o Jaywant Bansod,
Age Major, Occ: House Hold.
1-C Ku. Sonu @ Amruta d/o Jaywant Bansod,
Age Major, Occ: Nil.
1-D Ku. Annu @ Anupama d/o Jaywant Bansod,
Age Major, Occ: Nil.
1-E Sunil Madhukarrao Bansod,
Age Major, Occ: Business.
All R/o Talegaon [Dashasar],
Tq. Chandur Railway,
Dist. Amravati.
ig ....... RESPONDENTS
SECOND APPEAL NO.412 OF 2002
1] Champat s/o Narayan Kawale,
Aged about 74 years, Labourer,
R/o Talegaon (Dashasar),
Tq. Chandur Rly. Dist. Amravati.
2] Venkat s/o Narayan Kawale (dead)
through L.Rs.
I] Leeabai wd/o Venkatrao Kawale.
II] Ramesh s/o Venakatrao Kawale.
III] Ganesh s/o Venakatrao Kawale.
IV] Gopal s/o Venakatrao Kawale.
V] Tai w/o Rameshrao Vairagade.
VI] Maya w/o Madhukarrao Vaijapurkar.
All Major & C/o Resp. No.2 II,
Plot No.22, Vishram Nagar, Nagpur. ....... APPELLANTS
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...V E R S U S...
1] Madhukarrao s/o Jaikrushna Bansod,
Aged about 75 years, Agriculturist and
business, R/o Talegaon (Dashasar),
Tq. Chandur Rly. Dist. Amravati.
Since dead through proposed L.Rs.
1-A Smt. Ambika @ Vasanti wd/o Madhukarrao
Bansod, Age Major, Occ: House Hold.
1-B Smt. Ujawala wd/o Jaywant Bansod,
Age Major, Occ: House Hold.
1-C Ku. Sonu @ Amruta d/o Jaywant Bansod,
Age Major, Occ: Nil.
1-D Ku. Annu @ Anupama d/o Jaywant Bansod,
Age Major, Occ: Nil.
1-E Sunil Madhukarrao Bansod,
Age Major, Occ: Business.
All R/o Talegaon [Dashasar],
Tq. Chandur Railway,
Dist. Amravati. ....... RESPONDENTS
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Ms. Prajakta Hande, Advocate h/f Shri Abhay Sambre, Advocate
for Appellants.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 30
COMMON JUDGMENT
1] Regular Civil Suit No.497 of 1989 for declaration of title and
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possession of the suit property upon termination of the licence of the
defendants and the Regular Civil Suit No.200 of 1990 for removal of
encroachment, were decided together by the trial Court by common
judgment and order dated 28.04.1997. Both the suits were decreed, the
plaintiff was held entitled to recover the possession of the suit house and
a room standing on it from the defendants. The plaintiff is permitted to
recover Rs.395 from the defendants towards illegal occupation charges.
Similarly, the plaintiffs were held entitled to recover the possession of
the encroached area of 15 x 10 feet and 10 x 10 feet from the
defendants. The defendants are permanently restrained from
encroaching upon any portion of the suit property belonging to the
plaintiff. Regular Civil Appeal Nos.141 of 1997 and 143 of 1997
preferred by the defendants were dismissed by common judgment and
order of the lower Appellate Court delivered on 16.07.2002, hence, the
original defendants are before this Court in this second appeal.
2] On 17.03.2009 this Court passed an order admitting the
second appeal on the following substantial questions of law.
"(1) Whether the learned Courts below are
justified in Law in relying on the document of Gram
Panchayat Tax receipts, specifically when those are not
conclusive proof of evidence and are the fiscal entries made
for the purpose for collecting the tax only.
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(2) That the learned Courts below further failed
to appreciate that in view of the fact that the trial Court
has held that no document of source of title is produce by
the plaintiff i.e. Respondent, still have decreed the suit on
the basis of tax receipt. That the court below further failed
to appreciate that admittedly the plaintiff was office bearer
of Gram Panchayat from 1957 to 1962 and the name
appears on Gram Panchayat record since 1961, this itself
shows that the plaintiff has manipulated the Gram
Panchayat record. Under such circumstances, the learned
Courts below ought not to have passed the impugned
judgment and decree."
3] As to question of law Nos.1 and 2: The plaintiffs are held
to be the owners of the suit property by the Courts below on the basis of
the documents at Exhibit 98, 99, 102 and 103 placed on the record of
Regular Civil Suit No.200 of 1990, and the documents at Exhibit 65 to
70 and 72 and 73 placed on the record of Regular Civil Suit No.497 of
1989. All these documents include the assessment list and the tax
receipts. There is no document of title produced by the plaintiff on
record in respect of the suit property. These documents are from Gram
Panchayat and the plaintiff was for some period the member of the Gram
Panchayat. The plaintiff admits the possession of the defendants from the
month of January, 1980. The case of the plaintiff is that the defendants
were inducted as gratuitous licensee. There is no evidence available on
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record to show that the defendants were inducted as licensee. The tax
receipts and the assessment list produced on record cannot be a
document of conclusive proof of the ownership of the plaintiff over the
suit property, so as to get a decree of possession of the suit property from
the defendants. No doubt, the defendants have failed to establish
ownership over the suit property. They are claiming to be in possession
of the suit property from the year 1952-1953. In the absence of evidence
regarding creation of licence in favour of the defendants and their
induction in the premises as licensee, no decree for eviction and
possession could have been passed by the trial Court, particularly when
there is also no case of trespass or encroachment. The lower Appellate
Court has committed an error in maintaining the decree. The substantial
questions of law are answered accordingly.
4] In the result, the second appeals are allowed. The judgment
and decree passed by the trial Court in Regular Civil Suit Nos.497 of
1989 and 200 of 1990 by common judgment and order dated
28.04.1997, are hereby quashed and set aside along with the judgment
and order passed by the lower Appellate Court on 16.07.2002 in Regular
Civil Appeal Nos.141 of 1997 and 143 of 1997, both the suits filed by the
defendants are dismissed. No order as to costs.
JUDGE
NSN
