Bombay High Court
Goroba Ravan Gawali. & Others vs Nana Gana Gawali & Others on 16 March, 2016
Bench: T.V. Nalawade
1 SA 73 of 1988
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 73 of 1988
1) Goroba Ravan Gavli.
2) Daji Ravan Gavli. .. Appellants.
Versus
1) Nana Gana Gavli
Since died through legal
representatives
1A) Bhamabai w/o Nana Gavali,
Age 70 years,
Occupation : Household,
R/o Post Gangapur,
Chincholirao,
Taluka & District Latur.
1B) Parwati d/o Nana Gavli
Since married
Parwati w/o Amrat Waydande
Age 40 years,
Occupation : Household,
R/o Niwli, Post Niwli,
Taluka & District Latur.
1C) Ujjawalabai d/o Nana Gavli,
Since married
Ujjawalabai w/o Bali Rasal,
Age 38 years,
Occupation : Household,
R/o At Post Gangapur,
Taluka & District Latur.
1D) Madhubai d/o Nana Gavli,
Since married :
Madhubai w/o Garoba Rasal,
Age 44 years,
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2 SA 73 of 1988
Occupation : Household,
R/o At Tatborgaon, Post Apegaon
Taluka Ambajogai,
District Beed.
1E) Chayabai d/o Nana Gavli,
Since married:
Chayabai w/o Namdev Ghodke
Age 42 years,
Occupation: Household,
R/o At Post Utti, Taluka Ausa,
District Latur.
1F) Laxmibai d/o Nana Gavli,
Since married
Laxmibai w/o Nandu Ghodke,
Age 40 years,
Occupation: Household,
R/o At Tawasi, Post Belkund,
Taluka Ausa, District Latur.
1G) Parmeshwar s/o Nana Gavli,
Age 37 years,
Occupation: Agriculture,
R/o At Chincholi-rao,
Post Gangapur,
Taluka & District Latur.
1H) Vimal d/o Nana Gavli,
Since married
Vimal w/o Bapu Jogdand,
Age 35 years,
Occupation: Household,
R/o At Post Bardapur,
Taluka Ambajogai,
District Beed.
2) Annasaheb Janakrao Darekar.
3) Mohanrao Santram Darekar. .. Respondents.
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3 SA 73 of 1988
Shri. N.P. Patil Jamalpurkar, Advocate, for appellant No.1.
Appeal abated as against appellant No.2.
Shri. B.B. Dahiphale, Advocate for respondents 1A to 1H.
Shri. V.D. Salunke, Advocate, for respondent No.2.
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CORAM: T.V. NALAWADE, J.
DATE : 16th MARCH 2016
JUDGMENT:
1) The appeal is filed to challenge the judgment
and decree of Regular Civil Appeal No.58/1983 which was
pending in District Court Latur. The appeal filed by the
present respondent Annasaheb Darekar is allowed by the
first appellate Court and the decision given by the Civil
Judge, Junior Division, Latur in Regular Civil Suit No.522
of 1977 by which the relief of injunction was given in
favour of the present appellant is set aside and the suit is
dismissed. Both the sides are heard.
2) The suit was filed in respect of agricultural land
bearing Survey No.185/A situated at village Chincholi-
Rao, Tahsil Latur. It is the case of the plaintiffs Goroba
4 SA 73 of 1988
and Daji that their father Ravan was protected tenant and
he was in possession of this land and so as per provisions
of the Hyderabad Tenancy and Agricultural Lands Act
declaration was made in his favour under section 32-E and
order was made to issue certificate of ownership in favour
of Ravan. It is their case that they had paid the charges
for getting certificate and accordingly certificate was
issued.
3) The suit was filed in respect of area of 8 acres
33 gunthas from land Survey No.185/A and the
boundaries of this portion were given. It is the case of the
plaintiffs that, the name of their father was entered in the
revenue record of the land as owner and defendant No.1,
Nana, uncle of the plaintiffs, real brother of Ravan had no
concern whatsoever with the suit property. It is contended
that during implementation of the consolidation scheme
some false record was created by defendant No.1 by
joining hands with the officer and then name of defendant
No.1 was entered for some portion of this land as the
owner. It is contended that defendant No.1 has probably
alienated some portion under sale deed to defendant No.2.
5 SA 73 of 1988
Relief of declaration was claimed that the plaintiffs are
owners of 8 acres 33 gunthas of Survey No.185/A and
relief of injunction was claimed in respect of that portion.
4) Defendant No.1 did not appear in the suit and
ex parte order was made against him. Defendant Nos.2
and 3 filed joint written statement. They contended that
defendant No.1 had share in the land Survey No.185/A
and accordingly his name was entered as owner and the
person in possession of the said portion. It is contended
that Survey No.185/A was divided into two pieces and
Block No.334 which was formed during implementation of
consolidation scheme was allotted to defendant No.1. It is
contended that the defendants were already having some
portion in Survey No.185/A and to their portion different
block number was given like Block No.332. It is contended
that Block No.334 was sold by defendant No.1 for lawful
consideration to the defendants under registered sale
deed and they got possession also of this property from
defendant No.1. It is contended that prior to making the
sale deed, defendant No.1 had taken permission of the
Collector to transfer the property as in the past the
6 SA 73 of 1988
property was given under the provisions of the Tenancy
Act. They had prayed for dismissal of the suit.
5) On the basis of the aforesaid pleadings issues
were framed. Both the sides gave evidence. The trial
Court gave relief only of injunction as against defendant
Nos.1 to 3. Cost was not imposed on defendant No.3 as
defendant No.3 compromised the dispute with the plaintiff
and he admitted the claim of the plaintiffs.
6) In the appeal filed by defendant No.2, the first
appellate Court has set aside the decision of the trial
Court and the suit is dismissed. The first appellate Court
has considered the record of consolidation and other
revenue record and has held that this record was created
after considering the actual possession and after making
inquiry and the property Block No.334 was owned by
defendant No.1.
7) Both sides have given oral evidence but there is
sufficient record of consolidation and revenue record and
so that record needs to be given more importance. There
7 SA 73 of 1988
is 7/12 extract in respect of Survey No.185/A at Exhibit 4
showing that Ravan, father of the plaintiff was having 8
acres 33 gunthas portion and certificate was issued in his
favour under section 50-B of the Hyderabad Tenancy Act.
In favour of the defendants also entry was made to show
that they were having the remaining area in this survey
number. There is some record prepared during
implementation of consolidation scheme and it shows that
in the name of Mohan Darekar there were two portions
like Survey Nos.185/2 and 185/3. The record shows that
Survey No.185/1 was standing in the names of both the
plaintiffs and defendant No.1 and their portions were
divided into Survey No.185/1B (portion of plaintiff) and
Survey No.185/1A (portion of defendant No.1). The record
shows that Ravan, father of the plaintiff had not paid
purchase price under Tenancy Act. It is not disputed that
the total area of 13 acres 10 gunthas which was initially
shown as Survey No.185/A in the revenue record was
divided into three blocks like Block Nos.332, 333 and 334.
The record of consolidation shows that Block No.333 was
entered in the names of the plaintiffs, Block No.332 was
entered in the name of defendant No.2 and Block No.334
8 SA 73 of 1988
was entered in the name of defendant No.1 (Exhibit 23).
Exhibit 23 further shows that defendant No1 Nana was in
possession of Block No.334 admeasuring 1 hectare 20 R
and he had taken crops in entire portion.
8) The revenue record shows that firstly name of
only Ravan was entered for the portion of 8 acres 33
gunthas but subsequently names of his sons and the name
of defendant No.1 were also entered in the revenue record
and different blocks were allotted to the plaintiffs and
defendant No.1. In view of the revenue entries and the
mutations it needs to be presumed that when the
consolidation scheme was implemented, the parties were
in possession of the portions shown in the new block
numbers and prior to that also they were in separate
possession of their respective shares. Ravan was elder to
defendant No.1 and the parties are Hindus. In view of
these facts and as there is no explanation and as the
entries were not challenged by the plaintiffs probability is
created that Ravan and his brother, defendant No.1, were
jointly having 8 acres 33 gunthas, but as the elder
brother, Ravan got entered his name in the revenue
9 SA 73 of 1988
record. The portion was then divided and the names of
defendant No.1 and the heirs of Ravan were entered in
the revenue record. Admittedly, the record created during
implementation of the consolidation scheme and also the
aforesaid revenue record was never challenged by the
plaintiffs.
9)
It is not disputed that defendant No.1 entered
into an agreement with defendant No.2 and he sold the
portion like Block No.334 under registered sale deed
dated 4-12-1976 to defendant No.2. The name of
defendant No.2 was entered in the revenue record
(Exhibit 76) on the basis of sale deed and his name was
entered in the crop cultivation column also. Exhibit 76
shows that in the year 1981 defendant No.2 was
cultivating the portion purchased from defendant No.1. It
is already observed that in the year 1975-76 Nana,
defendant No.1 was in possession of Block No.334 and so
inference is easy that he handed over possession to
defendant No.2 under the sale deed.
10 SA 73 of 1988
10) The record of the trial Court does not show that
plaintiffs made attempt to produce revenue record to
show that they were in possession of Block No.334 on the
date of the suit. The suit was filed in the year 1977 and
there is aforesaid record to show that on the relevant date
and also subsequent to the relevant date defendant Nos.2
and 3 were in possession of Block No.334. This block was
created from a part of Survey No.185/A. In view of this
circumstance, the Court could not have given relief of
injunction in favour of the plaintiffs. The trial Court gave
much importance to the record created under the
Hyderabad Tenancy Act and ignored the position of Hindu
law and the aforesaid circumstances. The first appellate
Court has rightly corrected that error by considering the
record and also oral evidence. At the time of admission of
the appeal this Court had expressed that substantial
questions of law will be formulated on the basis of Ground
Nos.2,7 and 12 of the appeal memo. So, following sub
substantial questions of law are required to be considered
in the present matter :-
11 SA 73 of 1988
(I) whether the first appellate Court has committed
error in giving importance to the record of
implementation of consolidation scheme and giving
finding that on the basis of that record as defendant No.1
was owner of Survey No.185/1A ?
(II) whether the first appellate Court has committed
error in holding that defendant No.1 had become owner
even when Ravan, brother of defendant No.1, was
declared as owner under the provision of section 32-E of
the Hyderabad Tenancy Act ?
(III) whether the first appellate Court has committed
error in holding that defendant No.1 was in possession in
view of the record created during implementation of the
consolidation scheme and in further holding that this
portion had come to his share during partition between
him and successors of Ravan ?
11) The aforesaid discussion shows that the first
appellate Court has correctly appreciated the facts and
the law. Even if the certificate of ownership was issued in
favour of Ravan under the Tenancy Act, he was elder in
the family and it needs to be presumed that he had taken
the certificate for himself and for defendant No.1. The
subsequent development like entering of name of
12 SA 73 of 1988
defendant No.1 in the revenue record and the
circumstance that the authority which implemented the
consolidation scheme found the defendant No.1 in
possession of Survey No.185/1A are sufficient to infer
that property was of joint ownership of Ravan and
defendant No1 and that is why Survey No.185/1A was
found in possession of defendant No.1. As the parties
were Hindu there was no question of transfer of any title
by giving certificate in favour of defendant No.1 by the
authority under the aforesaid Act and there was pre-
existing right of defendant No.1, this Court holds that in
view of the aforesaid material and position of law, the first
appellate Court has not committed error in setting aside
the decision of the trial Court and refusing the relief of
even injunction in favour of the plaintiffs.
12) One more point was argued by the learned
counsel for the respondent original defendant No.2. He
submitted that during pendency of the present appeal,
appellant No.2 died and his appeal was abated. He
submitted that due to abatement of the appeal filed by
appellant No.2, the entire proceeding needs to be treated
13 SA 73 of 1988
as abated. This submission is not at all acceptable. The
cause of action continues. For the branch of Ravan, two
plaintiffs had filed the suit and the remaining appellants
had right to continue the proceeding. His interests were
not conflicting with the interests of the deceased
appellant No.2.
13) Learned counsel for the appellant has placed
reliance on the following reported cases :
(1) 1994(1) Bom.C.R. 368 (Prabhakar Kushaba Hagwane
v. Yashwant Bhau Hagwane);
(2) 2011 (6) Bom.C.R. 614 (Namdeo Bhau Chavan v.
Shantabai Kundlika Chavan);
(3) 2008 (4) Bom.C.R. 669 (Hemdas Premdas
Ranbakuda v. Surajbai Dhansao Sahu)
(4) AIR 1973 SC 2451 (Gorakh Nath Dube v. Hari
Naraian Singh);
(5) AIR 1963 SC 507 (State of Punjab v. Suraj Prakash
Kapur);
(6) AIR 1959 Punjab 206 (Kundan v. Sardara Hamji Lal)
(7) AIR 1975 SC 371 (Charan Singh v. Darshan Singh);
(8) 2007 (2) Mh.L.J. 344 (Baba Hari Mohite v. Dinkar
Ramchandra Sapkal);
(9) AIR 2003 SC 2588 (S Amarjit Singh Kalra v. Smt.
Pramod Gupta);
(10) 2011 (5) Mh.L.J. 727 (Shankar v. Ananda).
14 SA 73 of 1988
14) Similarly learned counsel for respondent No.2
placed reliance on the following reported cases :-
(1) 2007(3) ALL MR 371 (SC) (Ramji Rai v. Jagdish
Mallah);
(2) 2007(2) Mh.L.J. 296 (Chandrashekar Shankarrao
Kulkarni v. Rahul Shikshan Prasarak Mandal);
(3) (2004) 13 SCC 480 (Nagappan v. Ammasai);
(4) AIR 2002 HP 141 (Dummu Ram v. Madan Lal);
(5) 2007 (4) Mh.L.J. 43 (Kisan v. Kausalyabai);
(6) AIR 1963 SC 1901 (Rameshwar Prasad v.
Shambehari Lal Jagannath);
(7) AIR 1966 SC 1427 (Sri Chand v. M/s Jagdish
Pershad Kishan Chand);
(8) AIR 1999 SC 1077 (Badni v. Siri Chand);
(9) AIR 1973 SC 204 (B.S. Singh v. R.D. Singh);
(10) 1999 (1) Mah LR 75 (Mahendra v. Shrimati P. Shah);
(11) (2004) 13 SCC 480 (Nagappan v. Ammasai);
(12) 2007(4) Bom.C.R. 219 (Kaushalyabai B. Pateriya v.
Hiralal B. Gupta);
(13) AIR 1962 SC 89 (State of Punjab v. Nathu Ram);
(14) AIR 1963 SC 553 (Ram Sarup v. Munshi);
(15) AIR 1959 Orissa 148 (Raghu Sutar v. Nrusingha);
(16) 2001 (2) Mh.L.J. 576 (Yeshwant v. Shankar);
(17) 1991 Mh.L.J. 669 (Gunda Tuka v. Pandharinath);
15 SA 73 of 1988
(18) 2015 (6) Mh.L.J. 450 (Laxman vs. Raghunath);
(19) 1998(3) Mh.L.J. 834 (Shevantabai v. Ramu
Rakhamaji).
15) This Court has carefully gone through the
observations of the Apex Court, this Court and also the
other High Courts in the cases cited supra. They are on
the point of the effect of the record created during
implementation of consolidation scheme. Some cases are
on the point of abatement of matter due to death of one of
the appellants and its effect on the remaining matter.
Facts and circumstances of each and every case are
always different. While coming to the conclusion, this
Court had kept in mind the observations made by the Apex
Court, this High Court and also the other High Courts in
the cases cited supra. So, the points are answered in
negative. As no interference is possible in the decision
given by the first appellate Court following order is
passed:-
16) The appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
