Bombay High Court
Maroti S/O. Parashramji Satone vs Gulab S/O. Parashramji Satone on 15 March, 2016
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Misc. Civil Application Stamp No.154 of 2016
In
Second Appeal No.167 of 2008 (D)
Maroti Parashramji Satone,
Aged about 69 years,
Occupation - Agriculturist,
Resident of Rehati,
Taluka Seloo, District Wardha. ... Applicant/
Respondent in SA
ig Ori. Plaintiff
Versus
Gulab s/o Parashramji Satone,
Aged about 74 years,
Occupation - Agriculturist,
R/o Rehati, Tq. Seloo,
Distt. Wardha. ... Non-Applicant/
Appellant in SA
Ori. Defendant
Shri M.R. Johrapurkar, Advocate for Applicant/Respondent-Plaintiff.
Shri P.J. Wankhede, Advocate for Non-Applicant/Appellant-Defendant.
Coram : R.K. Deshpande, J.
Dated : 15 March, 2016
th
Oral Judgment :
1. Admit. Heard finally by consent of the learned counsels
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appearing for the parties.
2. The appellant and the respondent are the real brothers. The
respondent Maroti Parashramji Satone is the original plaintiff, who
had filed Regular Civil Suit No.202 of 1992 for a decree of partition
and separate possession in respect of his half share in the field Survey
No.37, area 2.31 HR, Jama Rs.10, Right Class II, situated at Mnouza
Rehaki (Khurd), Tahsil Seloo and District Wardha. He claimed that
this property was owned by Smt. Gayabai Satone, a mother of the
plaintiff and defendant, and the plaintiff has half share in it. A further
decree was also claimed for Rs.2,000/- towards half share in the
income of the property by the appellant/defendant. An enquiry under
Order XX, Rule 12 of the Civil Procedure Code was also claimed.
3. The appellant/defendant claimed that the properties Survey
Nos.13/1, 43, 44 and 37 are jointly owned by the plaintiff and the
defendant. He made a counter-claim for partition and separate
possession and, therefore, the Trial Court framed the issues at
Exhibit 14 on 30-9-2004. The said issues were re-cast on 1-9-1995.
The additional issue was also framed on 20-6-1997. The issues
framed, the issues re-cast, and the additional issue are reproduced
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below :
"ISSUES :
1) Does plaintiff is entitled to the partition and for separate
possession of the field S.No.37, if yes, what is his share?
2) Whether he is entitled to receive Rs.2000/- from the
defendant towards half share in the income?
3) Does defendant prove that the field Survey Nos.13/1, 43,
44 and 37 including house properties are ancestral properties?
If yes, up to what share he is entitled for partition and for
separate possession?
4) What order and relief?"
"RE-CAST ISSUES :
1) Whether the suit field was exclusively owned by mother of
the parties?
2) Whether the parties have equal shares in the suit property?
3) If issue no.2 in the affirmative, is the plaintiff entitled to
partition and separate possession of his share?
4) Is the plaintiff entitled to receive his share of the income of
the suit field for 3 years before this Suit? If yes, what
quantum?
5) What order and decree?"
"ADDITIONAL ISSUE :
(A) Whether deft. Is entitled for the counter claim?"
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4. The Trial Court decreed the suit on 21-7-2005 and the
respondent/plaintiff was held entitled for partition and separate
possession of his half share in the field Survey No.37, situated at
Rehaki (Khurd), Tahsil Seloo, District Wardha. The counter-claim of
the appellant/defendant was also partly allowed, and the
respondent/plaintiff was held entitled to half share in the field Survey
No.44, situated at Rehaki (Kala). The relief sought by the
respondent/plaintiff in respect of share of income and enquiry under
Order XX, Rule 12 of the Civil Procedure Code was rejected.
5. The lower Appellate Court has allowed the appeal and the
order passed by the Trial Court decreeing the counter-claim of the
appellant/defendant to the extent of half share in the field Survey
No.44 of Mouza Rehaki (Kala), has been set aside and the decree
passed by the Trial Court for partition and separate possession to the
extent of half share in the field Survey No.37 of Mouza Rehaki
(Khurd) has been maintained. The lower Appellate Court has further
directed an enquiry into mesne profit in respect of half share in the
field Survey No.37 of Mouza Rehaki (Khurd) from 6-7-1992 till its
actually delivery.
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6. On 12-6-2008, this Court (Shri A.P. Bhangale, J.) passed an
order framing the substantial questions of law and admitting the
second appeal, as under :
" Heard learned counsel for the parties.
It is the grievance of the appellant that facts pleaded
in the Written Statement were not fully considered by the lower
appellate court while passing order below exhibit 14 before he
allowed that application. Reference is made to latest ruling in
K.R. Mohan Reddy v. M/s Net Work Inc reported in
2007 (12) SCALE 587 with particular reference to observations
in paragraph 18. The Apex Court made reference to legal
position that Appellate Court was bound to consider the entire
evidence on record and come to an independent finding for
ariving at a just decision and adduction of additional evidence
is also necessary. On the other hand, learned counsel for
respondent has relied upon Wadi v. Amilal reported at
2002 DGLS 579 to contend that the appellate court can
consider the admission of additional evidence for pronouncing
an effective judgment.
Be that as it may, I am satisfied that arguable case is
made out and following substantial questions of law as framed
at sr.nos.(i) and (ii) in the memo of appeal arise for
determination:
(i) That, in absence of any explanation for
non-production of the Sale Deed in respect of Field Survey
No.44 by the plaintiff in the Trial Court, whether the
same could have been permitted to be produced by the
Lower Court by having recourse to the provisions of
Order 41, rule 27 of the Code of Civil Procedure in
absence of fulfilment of requirement therein especially
when non-production of the said Sale Deed had resulted in
rejection of the plaintiff's claim by the Trial Court?
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(ii) That considering the admitted position that insofar as
Field Survey No.44 was concerned, the motor pump and
electricity was standing in the name of the defendant and
when execution of the Sale Deed in respect of the said field
in the names of the minor sons of the plaintiffs, whether it
could be concluded that the said Field Survey No.44
exclusively belonged to the plaintiff?
Hence, ADMIT. Call for R & P. Mr. Johrapurkar, learned
counsel waives notice for respondent.
C.A. No.3437 of 2008 : Heard. It is evident that there was
no challenge to the decree passed by the Trial Court in respect
of field survey no.37. Therefore, there is no question of
granting interim stay, as prayed for. Application stands
rejected."
7. With the assistance of the learned counsel appearing for the
appellant/defendant, I have gone through the copy of the plaint from
the original record received from the Trial Court, and the copies of the
written statement and the counter-claim. The only claim in the plaint
was for half share of the respondent/plaintiff in field Survey
No.37, area 2.31 HR, situated at Mouza Rehaki (Khurd), Tahsil Seloo,
District Wardha. In the counter-claim, the appellant/defendant
claimed partition and separate possession of his half share in all the
fields and house properties, the schedule of which is given in the
written statement, as under :
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"SCHEDULE OF IMMOVABLE PROPERTY
(To the counter claim)
1) The field survey No.31/1 situated at Mouza Rehaki, Tah-Seloo,
Distt-Wardha.
Survey No. Area Jama Right
13/1 1.23 H.R. Rs.5/- Bhumiswami.
This field was in the name of the plaintiff No.1, but it was
purchased by Joint funds in the name of the plaintiff only. This field
was purchased from one Fating. At present the field has been sold
Survey No.
by the plaintiff. This field is known as Kamath.
2) Area Jama Right
43 (old No.25) 1.29 H.R. Rs.4.25/- Bhumidhari.
This field is the ancestral property of the plaintiff and the
defendant. After the death of Gayabai, the mother of the plaintiff
and the defendant with the help of Patwari the plaintiff removed the
name of the defendant and deceased Gayabai. The above said field
is situated at Mouza Rehaki (Kala), Tah - Seloo, Distt-Wardha.
3) Survey No.44 is situated at Mouza Rehaki (Kala), Tah-Seloo,
Distt-Wardha.
Survey No. Area Jama Right
44 1.47 H.R. Rs.5/- Bhumidhari.
The above field is in the name of Sharad and the Ravindra.
The plaintiff and the defendant had some relations with one Satpute
of Giving and taking money as Usanwar for cultivation. Some 20
years before this field was purchased from one Savarkar by the
plaintiff and the defendant but as money was due to be paid to
Satpute it was purchased in the name of Satpute alone by plaintiff
and the defendant. The plaintiff deceiving the defendant transferred
the ownership of this field which was in the name of Satpute, in the
name of his two sons.
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There is a well in the field. The motor pump even today stands
in the name of the defendants. There is also a Kotha in this field.
At present this field is in possession of the plaintiff.
4) Field survey No.37 is situated at Rehaki (Khurd), Tah-Seloo,
Distt-Wardha.
Survey No. Area Jama Right
37 2.31 H.R. Rs.10/- Bhumidhari.
In this field also there is a well and an electric motor pump.
This field is in possession of the defendant.
This field was jointly owned initially by the deceased Gayabai
and the defendant."
The decree passed by the Trial Court granting half share to the
respondent/plaintiff in the fields Survey Nos.37 and 44 was not
challenged by the appellant/defendant by filing a regular civil appeal.
It was an appeal preferred by the respondent/plaintiff only.
Obviously, the respondent/plaintiff was not aggrieved by a decree for
partition in respect of the field Survey No.37, but he was aggrieved by
a decree in respect of the field Survey No.44 only.
8. In respect of the field Survey No.44, the appellant/defendant
came forward with the case that the said land is in the names of
Sharad and Ravindra, the sons of the respondent/plaintiff, and about
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20 years back, this land was purchased from one Shri Sawarkar by the
appellant/defendant. It is the further stand taken that as the money
was due to be paid to one Shri Satpute, the field Survey No.44 was
purchased in his name alone by the appellant/defendant and the
respondent/plaintiff, and the respondent/plaintiff, by deceiving the
appellant/defendant, had transferred the said land in the name of his
two sons - Sharad and Ravindra.
9.
It was an undisputed position before the Courts below that
the sale-deed in respect of the field Survey No.44 stood in the names
of Sharad and Ravindra, the sons of the respondent/plaintiff. Hence,
there was no occasion for the respondent/plaintiff to produce a
registered sale-deed or a copy thereof to show that the said field stood
in the names of his two sons - Sharad and Ravindra. However, such
sale-deed was produced before the lower Appellate Court along with
the application at Exhibit 14 filed under Order XLI, Rule 27 of the
Code of Civil Procedure for production of document, since it was felt
by the lower Appellate Court that it would facilitate for proper
adjudication of the matter. Such application was allowed by the lower
Appellate Court by its order dated 28-3-2007 and the sale-deed was
taken on record. It was thus clearly established that the registered
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sale-deed in respect of the field Survey No.44 stood in the names of
Sharad and Ravindra, who were the owners of the said field.
10. The stand of the appellant/defendant in the counter-claim
was that the field Survey No.44 was purchased from the joint family
funds in the name of one Shri Satpute, who had some money lending
transaction with the respondent/plaintiff and the appellant/defendant.
It was the stand taken in the counter-claim by the appellant/defendant
that it was agreed that after refund of the borrowed amount of
Rs.15,000/- to the said Shri Satpute, the said field would be
transferred in the names of the appellant/defendant and the
respondent/plaintiff jointly. However, the respondent/plaintiff
fraudulently transferred the ownership from Shri Satpute to his sons -
Sharad and Ravindra by way of gift. In such a situation, it was for the
appellant/defendant to prove his case by leading evidence.
11. I have gone through the oral evidence of the
appellant/defendant, in which there is not even a whisper about the
field Survey No.44. In the absence of any evidence on record, the plea
raised by the appellant/defendant that the field Survey No.44 was
purchased from the joint family fund, is not substantiated, and this is
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what the findings recorded by the lower Appellate Court. I have gone
through the findings recorded by the lower Appellate Court in para 10
of its judgment, which are reproduced below :
"10] As to point No.(ii):- The defendant claimed survey
No.44 as a joint family property of him and plaintiff. As per
his contention is W.S. After repaying loan of Rs.15,000/- to
Satpute, this land was purchased by Joint family. But it got by
plaintiff in the name of his 2 sons Sharad and Ravindra by gift
deed. Surprisingly, he has not deposed as such before the
Court, in his evidence. On the contrary, in examination in
chief itself he stated that except one field which was an
ancestral, rest of the field property was purchased by both
brother independently. Admittedly, field survey No.44 is not
ancestral property. He is silent in respect of repayment of
alleged loan of Rs.15,000/- and executing sale deed by Satpute
in respect of field survey no.44. As against this, accordingly to
the plaintiff 14 years prior to his deposition dt.05.02.1999,
there was partition between him and defendant which has not
been challenged. If this is considered then the partition has
taken place around 1985. According to the plaintiff after
3 to 4 years of the partition, he purchased 4 acres of land i.e.
field survey No.44 in the name of his sons. Admittedly despite
disclosure in the reply to the counter claim by the plaintiff as
such, the defendant has not joined plaintiff's both the sons
namely Ravindra and Sharad to the counter claim which itself
affects the counter claim."
In view of the aforesaid findings, the fact that the motor pump and
electricity were standing in the name of the appellant-defendant,
would not make any difference. The findings recorded by the lower
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Appellate Court, therefore, do not call for any interference.
12. While deciding the second appeal on
13th and 16th February, 2015, the finding recorded by this Court in
para 9 that the burden was upon the respondent-plaintiff, who should
have produced the document of title in respect of the field Survey
No.44 and that the lower Appellate Court has committed an error in
holding that the field Survey No.44 was the self-acquired property of
the respondent-plaintiff, suffers from an error apparent on the face of
the record. Hence, the said decision is required to be reviewed by
dismissing Second Appeal No.167 of 2008.
13. In the result, the misc. civil application for review of the
judgment dated 13th and 16th February, 2015 passed by this Court in
Second Appeal No.167 of 2008, is allowed, and Second Appeal
No.167 of 2008 is dismissed.
14. The misc. civil application is disposed of accordingly. No
order as to costs.
JUDGE.
Lanjewar, PS
