Govindrao Ramaji Hazare vs Wamanrao Ambadas Kadam
2016 Latest Caselaw 474 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                            Second Appeal No. 396 of 2002




                                                   
     Govindrao son of Ramaji Hazare,
     aged about 67 years,
     occupation - Agriculturist,
     resident of Anjangaon Bari,




                                       
     Distt. Amravati.                                  .....           Appellant.
                              ig                                     Org. Plff.


                                       Versus
                            
     Wamanrao son of Ambadas Kadam,
     aged about 72 years,
     occupation Agriculturist,
     resident of Anjangaon Bari,
      

     Distt. Amravati.               .....                         Respondent.
                                                                  Org. Deft.
   



                                 *****
     Mr. Shriniwas Deshpande, Adv. [appointed] for the appellant.





     None for the respondent, though served.

                                        *****





                                    CORAM :         A.B. CHAUDHARI, J.

                                     Date       :   09th March, 2016


     ORAL JUDGMENT :





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01. This Second Appeal was filed by the unsuccessful plaintiff,

Govindrao, against the defendant, Wamanrao, against the Judgment

and Decree dated 20th June, 2002 passed by learned District Judge,

Amravati, in Regular Civil Appeal No. 227 of 1998 and the Judgment

and Decree dated 28th August, 1998, passed by learned Ninth Joint

Civil Judge [Junior Division], Amravati, in Regular Civil Suit No. 495 of

1996.

02. In supersession of the Substantial Question of Law framed

on 17th June, 2003, upon hearing Mr. Deshpande, the learned counsel

[appointed] for the appellant, I re-frame the following Substantial

Questions of Law:-

[a] Whether the courts below committed a serious error in law in marking the sale-deed dated 20th

January, 1971 as "Article-A" when the evidence of Govindrao was recorded on 3rd July, 1998 and there is an endorsement on Art. A that the photo copy of the sale-deed was verified from the

original, and there is a signature, perhaps, of the Presiding Officer and below that, there is a date, and should have been admitted in evidence, particularly when Govindrao deposed about that sale-deed in extenso?

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[b] Whether the courts below were justified in ignoring the Judgment at Exh.27 in Regular Civil Suit No. 415 of 1993 between the appellant and

the State of Maharashtra, which had claimed ownership on the suit property and it was declared that the appellant, plaintiff, was the owner and in possession of the suit property

pursuant to the sale-deed dated 20th January,

2971, on the ground that the defendant was not a party to that suit, particularly when the defendant did not plead or prove any document of title in his

favour, but merely chose to rely on revenue entries [Exhs. 35 to 38]?

[c] Whether the courts below committed an error in law in not giving the benefit of superior title as

against the defendant to the appellant, plaintiff?

[d] What order? .... Second Appeal is partly allowed.

Regular Civil Suit No.495/96 is remanded to the Trial Judge for fresh hearing and disposal in accordance with law.

03. With the assistance of Mr. Deshpande, learned counsel for

the appellant [appointed] through High Court Legal Services Sub-

Committee, Nagpur, I have gone through the entire record, so also the

Judgments and reasons recorded by the courts below. At the outset, I

find that the courts below have not dealt with the matter in the correct

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perspective, which has led to the miscarriage of justice for the

appellant, plaintiff. Plaintiff, Govindrao, examined himself and

categorically stated that he obtained a sale-deed dated 20th January,

1971 and purchased the suit property, but produced a photo copy of

the sale-deed on record and also stated in his evidence that it took

time to have original sale-deed, as it had not been received from the

Pune office. I have carefully perused Art. A that was given to the said

sale-deed and I find that there is an endorsement, perhaps under the

signature and date put by the learned Judge that it was verified from

the original. It is difficult to fathom as to why the Trial Court did not

mark exhibit on the sale-deed if it was verified from the original and

Govindrao had deposed about it in the substantive evidence before the

Court. But then it is not possible for me to draw any concrete

conclusion. Then there is a copy of Judgment in Regular Civil Suit No.

415 of 1993, which is again a photo copy of the certified copy and in

that judgment which I have read, the appellant, plaintiff, was

categorically declared as owner of the suit property and Govt., was

restrained from disturbing his possession. The courts below have not

chosen to rely on the findings in that judgment, only on the ground

that the respondent, defendant, was not a party to that suit. They may

be right in saying so in accordance with law. But then, the defendant

also did not produce any concrete proof of his ownership on the suit

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property, as against which the appellant did have a strong and

concrete evidence about his ownership through the sale-deed as well

as the Judgment of the competent Civil Court against the State Govt.

The issue of ownership has been answered against the appellant on

the ground that he did not produce the original sale-deed, when, as

earlier stated, there is an endorsement on Art. A that a photo copy of

the sale-deed was verified from the original sale-deed.

below, however, chose to rely on the revenue records showing the The courts

name of the defendant, to confer ownership on the defendant and his

possession. It is not possible to agree with this view because the

revenue entries would not confer title on the defendant in the first

place, and secondly, in the dispute between the Govt., and the

appellant about the Govt. claiming ownership as against the appellant,

plaintiff, there is a Judgment against the Govt. and in favour of the

appellant by a competent Civil Court and, therefore, The revenue

entries relied on by the courts below obviously seem to be not of a

probative value and were required to be scanned and scrutinized in

juxtaposition with the evidence discussed by me above. Those

revenue entries could not have been read in isolation in the light of the

weighty evidence which is brought on record which I have discussed

above. All these questions are, therefore, answered accordingly.

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04. In the wake of above discussion, I think, it is not possible for

me to adjudicate on the merits of this appeal and, therefore, the

proper course would be to remand the Civil Suit to the Trial Judge for

fresh hearing and disposal by taking into consideration the documents,

the admissibility of evidence, oral as well as documentary etc., with

appropriate care. Hence I make the following order:-

                              ig        ORDER
                            
     [a]            Second Appeal No. 396 of 2002 is partly allowed.
      


     [b]            The impugned Judgment and Decree dated 20th
   

June, 2002 passed by learned District Judge, Amravati, in Regular Civil Appeal No. 227 of 1998 and the Judgment and Decree dated 28th August,

1998, passed by learned Ninth Joint Civil Judge [Junior Division], Amravati, in Regular Civil Suit No. 495 of 1996 are set aside.

[c] The proceedings of Regular Civil Suit No. 495 of 1996 are sent back to the Trial Judge for fresh hearing and disposal in accordance with law.

[d] The Trial Judge shall issue notice to both the parties for appearing before him, and shall allow

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the parties to amend their pleadings and produce additional evidence, if they so desire.

[e] The Trial Judge shall expedite the suit and complete the hearing within one year from the date of appearance of the parties.

[f] Fees payable to learned Adv. [appointed] Mr.

Shriniwas Deshpande for the appellant are quantified in the sum of Rs.5,000-00 [rupees five

thousand only].

Judge

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