Shaikh Samad S/O Sk. Rahim vs Sheikh Dullah S/O Sk.Karim And ...
2016 Latest Caselaw 308 Bom

                                                                                                                  sa.414.02
                                                                 1




                                                                                                                   
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT NAGPUR, NAGPUR.




                                                                                     
                                                                ...

SECOND APPEAL NO. 414 /2002

Shaikh Samad s/o Sk. Rahim Aged about 40 years occu: Agriculturist Reside ot Kamunja Tq. & Dist. Amrvati. ... APPELLANT

v e r s u s

1) Sheikh Dullah s/o Sk. Karim (Died)

1(a) Sk.Ibrahim Sk.Dullah Aged 60 years (son)

1(b) Sk.Yakub Sk.Dullah Aged 58 years (son)

1(c) Sk.Salam Sk.dullah

Aged 52 years (son)

1(d) Sabnoor Bee Sk.Kayum Aged 54 years (daughter)

All R/o Kamunja Tq. & Dist. Amaravati.

    2)        Sk.Kadar s/o Dullah
              Aged about 45 years, 
              R/o  Kamunja 





              Tq. & Dist. Amravati.                                                      ....       RESPONDENTS

...........................................................................................................................

Mr. S.G.Loney, Advocate for the appellant None for respondent Respondents ............................................................................................................................

CORAM: A.B.CHAUDHARI, J .

                                                         DATED :     3rd March,  2016





                                                                                                 sa.414.02





                                                                                                
    ORAL  JUDGMENT:

    1.              Being   aggrieved   by   the   judgment   and   decree     dated 




                                                                      

2.8.2002 in Regular Civil Appeal No.221/1998 passed by the learned

Joint District Judge, Amravati, arising out of the judgment and decree

dated 11.9.1998 passed by 7th Joint Civil Judge, Junior Division,

Amravati in Regular Civil Suit No. 378/1997, the present Second Appeal

was preferred by the unsuccessful original plaintiff.

2.

I re-frame the following substantial questions of law :-

1) Whether the lower Appellate Court committed an error in law in perversely reversing the finding of fact recorded by the trial Judge, that too on the admitted premise

that the original allottee from the Government Sk.Rahim, the father of the present appellant/plaintiff was the owner

of the entire suit plot and the appellant, his brother and sister is succeeded to the said estate, in the absence of alleged surrender by brother and sister in favour of the appellant the

ownership could be derived, in favour of the appellant ?

..Yes.

2) Whether the unregistered sale deed document of sale deeds(Exhs. 48 and 49) for value of Rs. 800/- and 900/- respectively relied upon by the defendants 1 and 2, as the conveyance, could at all be considered by the lower Appellate Court as legal and valid transfer ?.. ..No

What order ? .. Second Appeal is allowed.

sa.414.02

3. As to question No.1 : It is significant to note that the both

the Courts below have concurrently recorded a finding of fact that the father

of the appellant was the original allottee from the Government of the suit plot

and consequently the owner of the same. It is further a finding of fact that

Sk. Rahim left behind one brother and his sister but the suit was filed for

removal of encroachment only by the appellant and the other brother was

examined as plaintiff's witness, who stated in his evidence that the suit plot

was given to the appellant alone. It is an admitted position that neither sister

nor other brother had any dispute with the appellant in the matter of

ownership of the suit plot and, therefore, the respondents who had no right in

the suit plot as successor to Sk.Rahim did not deny the ownership in that

sense. The lower Appellate Court, however, held that since the brother and

sister did not produce any surrender deed on record, he refused to accept the

the appellant as sole owner of the property though accepted that Sk.Rahim

was the original allottee who is the father of the appellant/plaintiff; while

adjudicating the dispute between the two parties and in the wake of the fact

that the respondent /defendant did not have any semblance of right as to the

ownership as successor of Sk.Rahim. The learned lower Appellate Court could

not have reversed the finding of fact recorded by the trial Judge that the

appellant was the successor of Sk.Rahim, who was the allottee from the

Government. There is no other reason given by the lower Appellate Court for

holding that the appellant failed to prove his title over the suit plot. In my

sa.414.02

opinion, finding of lower Appellate Court about ownership is perverse and

will have to be set aside. Consequently, I answer the question No.1 in the

affirmative.

4. Taking up the Question No.2, I find that the respondent's

defence was that the encroached portion about which the grievance was

made, both the respondents/defendants said to have purchased the suit

plot from Sk.Rahim by two respective sale deeds i.e. Exh. 48 and 49 for

consideration of Rs. 800/- and 900/- respectively. They placed on record the

sale deed Exhs. 48 and 49 as instrument of conveyance to the area of the

plot in encroachment therefore they became the lawful owner and

consequently could not be evicted there from. These two documents Exhs. 48

and 49 are the documents of conveyance by passing title in favour of

defendants 1 and 2. Admittedly, both these documents Exhs. 48 and 49 are

unregistered sale deeds and the value thereof being above Rs. 100/-, those

sale deeds were not sale deeds in the eye of law for want of registration of the

same. Strangely enough the lower Appellate Court has relied on both these

documents Exhs. 48 and 49 as the instrument of conveying the suit property

encroached portion in favour of respondents 1 and 2. In my opinion, the

valuation of the property purchased by the defendant nos.1 and 2 being

above Rs. 100/-, the sale deeds definitely required registration and in the

absence of which, both the documents Exhs. 48 and 49 were waste papers and

sa.414.02

no title could be derived from such documents. The learned lower Appellate

Court had completely misled itself in holding the ownership of defendant nos.

1 and 2 on the basis of such type of documents-Exhs. 48 and 49. The finding

is obviously perverse and contrary to law and will have to be set aside. The

question no.2 therefore will have to be answered in the negative.

5. There is no other reason why the learned lower Appellate Court

has dismissed the suit by reversing the decree of the trial Court, except for

the above two reasons. In the result, I find that the present Second Appeal

must succeed. Hence the following order :

ORDER:

    1)       Second appeal No.414/2002 is allowed. 

    2)       The judgment and decree dated 2.8.2002    in Regular Civil Appeal No. 
    

221/1998 passed by learned Joint District Judge, Amravati, is set aside.

3) The judgment and decree dated 11.09.1998 in Regular Civil Suit No.

378 /1997 passed by learned 7th Joint Civil Judge, Junior Division,

Amravati, is restored.

    4)       No order  as to costs.



                                                            JUDGE

    sahare