Bombay High Court
Tukaram S/O. Shiva Bahekar & 3 ... vs Smt.Dwarkabai W/O. Govind ... on 9 March, 2016
Bench: A.B. Chaudhari
1 sa233.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.233/2001
1. Tukaram s/o Shiva Bahekar,
aged about 51 years, Occ. Agriculturist,
2. Tikaram s/o Shiva Bahekar,
aged about 46 years, Occ. Agriculturist,
3. Shriram s/o Shiva Bahekar,
aged about 40 years, Occ. Agriculturist.
4. Smt. Tulsabai wd/o Shiva Bahekar,
(Died on 19.12.1998)
All r/o Dongargaon, Tq. Saleksa,
Dist. Bhandara at present Gondia. ...APPELLANT
...V E R S U S...
1. Smt. Dwarkabai w/o Govind Muneshwar,
aged about 31 years, Occ. Household.
2. Smt. Janabai w/o Yashwantrao Gaidhane,
aged about 37 years, Occ. Household.
3. Govind s/o Sitaram Muneshwar,
aged about 40 years, Occ. Cultivator.
All r/o Dongargaon, Tq. Saleksa,
Dist. Bhandara at present Gondia. ...RESPONDENTS
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Mr. P. N. Sanjidwar, Advocate for appellant.
None for the respondents.
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2 sa233.01.odt
CORAM:- A. B. CHAUDHARI, J.
DATED :- 09.03.2016
J U D G M E N T
1. Being aggrieved by judgment and decree dated
16.01.2001 in Regular Civil Appeal No.36/1994 passed by
Additional District Judge, Gondia by which the learned lower
appellate Court reversed the judgment and decree dated
02.04.1994 in Regular Civil Suit No.44/1994 passed by Civil
Judge Junior Division, Amgaon and dismissed the suit filed by the
plaintiffs, the present appeal was filed by the unsuccessful
plaintiffs.
FACTS:
2. In support of the appeal, learned counsel for the
appellant submitted that the lower appellate Court committed
error on facts as well as in law in reversing the well reasoned
finding of fact recorded by the trial Judge that the suit property
was allotted to the share of the deceased Shiva in partition and
Dharma was occupying the same as a licensee and, therefore, the
question of holding adverse possession did not arise. He then
submitted that the respondents, on the contrary took the defence
3 sa233.01.odt
that under Exh.-49, they purchased the property by unregistered
sale deed for Rs.1,000/-. The sale deed was not admissible in
evidence and was liable to be rejected outright in the light of
Section 49 of the Registration Act. But the lower appellate Court
utilised the same for collateral purposes. The affirmation or
possession could only be collateral purpose and, therefore, the
lower appellate Court committed error in law in dismissing the
suit filed by the appellants-plaintiffs.
3. None appeared for the respondents. In supersession of
the substantial questions of law framed at the time of admission, I
frame the following substantial questions of law after hearing
learned counsel for the parties.
(i) Whether the lower appellate Court committed
perversity while reversing the finding of fact recorded by
the learned trial Judge that Shiva got the suit property in
partition for which there was voluminous evidence on
record? ...Yes
(ii) Whether the unregistered sale deed Exh.-64
could be utilised by the lower appellate Court for the
alleged collateral purpose for legalizing unlawful
possession of the respondents on the suit property and
whether Exh.-64 was admissible in evidence? ...No.
4 sa233.01.odt
(iii) Whether the finding recorded by the lower
appellate Court that the respondents proved adverse
possession is clearly perverse? ...Yes.
(iv) What order? ...As per final order.
4. I have heard learned counsel for the appellant at
length. I have perused the entire record as well as evidence. I
have seen the reasons recorded by both the Courts below. None
appears for the respondents, though served.
CONSIDERATION:
5. The learned trial Judge discussed the threadbare
evidence regarding partition and on the basis of the oral as well as
documentary evidence on record, came to the correct conclusion
that Shiva got the property in partition in lieu of he sacrificing
more agricultural land in favour of his brother Bhiva. Instead of
discussing the facts and evidence, I quote paragraph 8, 10, 11 and
16 of the judgment of the lower appellate Court, which read thus:
"8. In this case the plaintiffs have examined four
witnesses and defendants have also examined four
witnesses, in support of their respective claim. According to
P.W.1 Tukaram Bahekar who is a son of Shiva, there was
partition in-between his father Shiva and uncle Bhiva, in
5 sa233.01.odt
the said partition Bhiva got 4 acres of land whereas Shiva
got 3.68 acres of land. It is his further evidence that since
Shiva got 0.32 acres of land more than Shiva in view of
which the total residential house was given into the share
of Shiva and at that time Bhiva constructed a new house
and started residing therein.
9. .....
10. It is true that partition was not reduced into
writing however it has taken place about 20 years back as
evident from the version of plaintiff and this witness. It is
surprising enough that the above evidence of plaintiff p.w.1
has not been challenged by the defendants at the time of
cross-examination of p.w.1. There is also no suggestion to
this witness that there was no partition or the whole house
was not given into the share of Shiva and in view of this
fact I have hesitation to accept the above version of p.w.1.
11. The version of p.w.1 has been supported by his
witness Ramkishor, Kabirdas and Sashrath Shivankar.
According to p.w.2 Ramkishor Agrawal that in the year
1966 there was a meeting in the Gram Panchayat in
respect of the suit house and the agricultural property. The
suit house was originally belongs to Shiva and Shiva, in
the meeting it was settled that since Bhiva got 31 decimals
of more land in his share the whole suit house would go to
the share of Shiva. And at that time Bhiva constructed his
own house and started residing therein. It is his further
evidence that after Bhiva left the said house he became a
tenant of the said Shiva by paying Rs.5/- p.m. as rent. He
6 sa233.01.odt
was a tenant of Shiva in the suit premises for about 2/3
years and thereafter the defendants being the relatives of
Shiva were residing therein. According to his witness
Panchayat Puranchandra Doye, Moghsham Doye and
Kabirdas Brahmankar were present. During search of his
cross-examination this witness emphasis that main talk in
the meeting was that since Bhiva had received 32 decimals
of land more in partition he should give entire house to
Shiva, when he (p.w.2) vacated the premises he delivered
possession of the suit premises to Shiva.
12. to 15. .....
16. The fact that the land admeasuring about 4
acres was fallen into the share of Bhiva and land
admeasuring 3.68 acres was fallen into the share of Shiva
is an admitted fact. The documents placed on record vide
exh-30 and 31 make this position clear. The argument
advanced by Mr.Patel that since about 32 decimals of more
land was given to Bhiva it can very well be inferred that
share of Bhiva in the house property must have been given
to Shiva and secondly, the circumstances which remained
unchallenged rather admitted that after partition Bhiva
constructed a new house and started residing therein,
clearly in for that Bhiva must have been relinquished his
right over the suit house and certainly it must have given
to Shiva. I find some force in the contention of Mr. Patel
for the reasons that his argument is coupled with the
evidence adduced by p.w.2 to 4."
7 sa233.01.odt
As against this, the findings recorded by the learned
lower appellate Court are cryptic and not in accordance with the
preponderance of probabilities. The finding recorded by the
learned lower appellate Court went on the presumption that there
cannot be a partition of agricultural land or house properties and
that whenever there is partition, it must be complete between both
the parties and properties. I think, in law, the view taken by the
lower appellate Court is wrong. There could be partial partition
from time to time and, therefore, the learned trial Court went by
oral evidence regarding partition, corroborated by documentary
evidence as discussed by him above in the aforesaid paragraphs. I,
therefore, hold that the lower appellate Court recorded a perverse
finding in that behalf and the discussion made by the trial Judge
on this point is based on evidence and the lower appellate Court
should not have interfered with the said finding of fact. Hence, I
answer the question no.1 in the affirmative.
6. Now, for deciding question no.2, it would be
convenient to reproduce the following observations from the
discussions made by the trial Judge in paragraphs 20, 21, 22 and
24 of the judgment.
8 sa233.01.odt
"20. ....A document dated 6.2.66 has been placed by
defendants, claiming to be a sale deed of the suit house
alleged to have executed by Parashram and Sitaram in
favour of Dharma vide exh.64. It is his further evidence
that Vithoba Bhandarkar, Satuji Humey and Vithoba
Shivankar were present at the time of writing transaction
was made for consideration of Rs.1,000/-.
21. The total evidence of p.w.2 Parashram has been
challenged by the plaintiffs he has denied the area of
Budha's house as 9 decimals. However, I find no substance
in his denial for the reasons that documentary proof at
Exh-32 of a mutation entry shows the total area of the
land wherein suit house and the portion in occupation of
Shiva i.e. plaintiffs is shown 9 decimals as well as the
document at exh-33 and 60 (7/12 extract) also shows the
area of total house property as 9 decimals.
22. He has admitted during cross-examination that
Bhiva had two sons and two daughters then Sakhubai and
Kakhubai they are still alive, First of all, it needs to be
pointed out that theso called sale deed at exh-64 there is no
signature of the legal heirs of Bhiva and it appears only to
have been executed only by sons of Bhiva. Secondly, the so-
called document at exh-64 is an unregistered document
and is writer only on one Rs. Stamp paper. The defendant
stand is totally based upon the said document which itself
hit by the provisions of sec.17 and 49 of the Registration
Act 1908 which requires its registration and thirdly, it is
9 sa233.01.odt
not executed by all the legal heirs of Bhiva even if, it is
presumed that Bhiva was exclusive owner of the said suit
house. Hence the contention of Mr. Patel that on
unregistered document title does not pass to Dharma has
got some merits. Apart from the above observations
according to p.w.2 Parashram he does not know whether
Budha was 7.69 acres of agricultural land. He does not
know how much land was fallen in share of father Bhiva,
partition had taken place between his father and Shiva but
not in his premises. He has admitted that after partition
his father Bhiva constructed another house and since
partition of agricultural land and house property they are
residing separate. It is also admitted by him that there
was Gram Panchayat office for about five years. Thus
above admission itself support the plaintiffs contention that
house property was fallen into the share of Shiva in lieu of
32 decimals of excess land fallen into the share of Bhiva.
24. .....Apart from the above facts the evidence
adduced by the defendants is itself contradictory one
because document at exh-64 on which the defendants are
claiming their title which itself is not legal one contradict
heir own evidence. First of all, the alleged document
appears to have been executed on 6.2.66 whereas signature
of vendor Parashram and Sitaram appears to be on 5.2.66.
The consideration is started to be of 1,000/- whereas in the
Ferfar Panji Exh-32 mutation entry on its minutely
perusing appears that it was purchased on 10.1.66 for
consideration of Rs.250/- I do not understand as to why
10 sa233.01.odt
the defendatns have not brought the evidence on which the
said entry was made in Ferfar Panji at exh-32, on record of
this case. It thus amounts to suppress of the fact and
certainly it can very well be inferred that the so called
document at exh-64 which appears to have been executed
after about a month of the earlier receipt got with an
ulterior motive."
7. From perusal of the above discussion and facts by the
trial Judge, it is clear that the sale deed Exh.-64 was not a
registered document and was, therefore, clearly not admissible in
evidence because its value was more than Rs.100/-. The sale
deed, therefore, required outright rejection from consideration as
evidence. The lower appellate Court, however, utilized it in the
name of collateral purpose but there cannot be any collateral
purpose conferring ownership on the respondents and legalize the
illegal possession. When the appellants-plaintiffs were the owners,
they inherited their father's property, they are required to be in
possession of the same and cannot be deprived of the property on
the basis of sale deed Exh.-64, which was an unregistered
document. That is all the more so because the document appears
to have been executed after about one month of the earlier receipt
got with an ulterior motive. The lower appellate Court clearly
11 sa233.01.odt
committed error in depriving the appellants of their property by
giving benefit of collateral purpose in favour of the respondents-
defendants which is wholly impermissible in law on the basis of
fake document Exh.-64. Hence, the question no.2 is answered in
the negative.
8. Now, turning to the question no.3, the respondents
claimed that they were the owners under Exh.-64 and never stated
that the appellants-plaintiffs were owners of the suit property and
they were in occupation of the property under any hostile
possession. In the present case by Exh.-64, the respondents
claimed ownership to themselves and they were occupying it as
permissive possession being the close relative and not by way of
adverse possession. I have checked up the pleadings and evidence
and I find that there is no even iota of pleadings and evidence for
claiming adverse possession anywhere. Merely having long
possession does not constitute adverse possession. Hence, this
question no.3 will have to be answered in the affirmative.
9. In the result, the appeal must succeed. Hence,
following order is passed.
12 sa233.01.odt
ORDER
(i) Second Appeal No.233/2001 is allowed.
(ii) Judgment and decree dated 16.01.2001 in
Regular Civil Appeal No.36/1994 passed by Additional
District Judge, Gondia is set aside.
(iii) Judgment and decree dated 02.04.1994 in
Regular Civil Suit No.44/1994 passed by Civil Judge
Junior Division, Amgaon is restored.
No order as to costs.
ig JUDGE
kahale
