Bombay High Court
Madhav Reddy Govinda Navalgire vs Madhukar Eknath Katampalle & Ors on 6 May, 2016
Bench: T.V. Nalawade
1 SA 441 of 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 441 of 2002
* Madhav Reddy s/o Govinda Navalgire,
Age 60 years,
Occupation : Agriculture,
R/o Ambegaon, Taluka Udgir,
District Latur
Through his General Power of
Attorney Holder
Venkatrao Madhav Reddy,
Age 40 years,
Occupation: Agriculture. .. Appellant.
Versus
1) Madhukar s/o Eknath Katampalle,
Age 32 years,
Occupation : Agriculture,
R/o Ambegaon, Taluka Udgir,
District Latur.
2) Eknath s/o Gangaram Katampalle,
Age 60 years,
Occupation : Agriculture,
R/o Ambegaon, Taluka Udgir,
District Latur.
3) Bhanudas s/o Eknath Katampalle,
Age 35 years,
Occupation : Agriculture,
R/o Ambegaon, Taluka Udgir,
District Latur.
4) Hirabai w/o Eknath Katampalle,
Age 50 years,
Occupation : Agriculture,
R/o Ambegaon, Taluka Udgir,
District Latur. .. Respondents.
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2 SA 441 of 2002
Shri. A.N. Sabnis, Advocate, holding for Shri. A.P. Shah,
Advocate, for appellant.
Shri. K.D. Bade Patil, Advocate, for respondent No.1.
Appeal is abated as against respondent Nos.2 and 4.
Respondent No.3 - served-absent.
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CORAM: T.V. NALAWADE, J.
DATE : 6th MAY 2016
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.195/1980 which was
pending in the Court of the Civil Judge, Junior Division,
Udgir, District Latur and also against the judgment and
decree of Regular Civil Appeal No.21/2000 which was
pending in the Court of the Additional District Judge,
Udgir. Heard both the sides.
2) Respondent No.1 - Madhukar had filed the
aforesaid suit for recovery of possession of agricultural
land Survey No.21/Kha admeasuring 3 hectares 89 R
situated at Ambegaon, Tahsil Udgir. It is the case of
Madhukar that the suit property is his ancestral property
3 SA 441 of 2002
and the property has come to his share in partition which
took place amongst the plaintiff, his father and real
brother. Defendant No.2 is father of the plaintiff and
defendant No.3 is the real brother of the plaintiff.
Defendant No.4 is wife of defendant No.2. It is contended
that defendant No.1 is real brother of defendant No.4 and
so he is maternal uncle of the plaintiff.
3) It is the case of Madhukar that after the death
of his grandfather, defendant No.2 married with defendant
No.4. It is contended that after the marriage, defendant
No.1 came to village Ambegaon with defendant No.4 and
he started living with the family of defendant No.2. It is
contended that defendant No.2 is a simpleton person and
defendant No.1 started managing the properties of
defendant No.2. It is contended that behind the back of
the plaintiff and defendant No.2, defendant No.1 entered
his name in the revenue record of the suit land as the
owner. It is contended that after the year 1979 when the
plaintiff tried to do agricultural operations in the suit land,
defendant No.1 obstructed the plaintiff. It is contended
that the plaintiff then made search of the revenue record
4 SA 441 of 2002
and he realized that defendant No.1 had created some
false revenue record. It is contended that the defendant
No.1 was cultivating the land in the past to help the family
of defendant No.2 as he was brother of the defendant
No.4. It is contended that defendant No.1 has misused
the circumstance that defendant No.2 is a simpleton
person and his son, defendant No.3 was minor at the
relevant time. By making the aforesaid contentions the
possession is claimed from defendant No.1.
4) Only defendant No.1 contested the suit by filing
written statement. Defendant No.1 admitted his
relationship with the plaintiff and other defendants. He
admitted that his native place is different and he had
come to Ambegaon. However, he has denied that he had
come to Ambegaon to help the family of the defendant
No.2. It is his case that about 35 years prior to the date of
the suit, partition had taken place amongst the sons of
father of the defendant No.2 and the suit land was allotted
to the share of defendant No.2. It is contended that
defendant No.1 and his parents shifted to Ambegaon when
he was aged about 5 years. He has denied that he was
5 SA 441 of 2002
asked to cultivate the land by defendant No.2 or
defendant No.4 to help them. He has denied that there
was partition in the year 1979 and in the partition the suit
land went to the share of the plaintiff. It is the case of the
defendant No.1 that in the past the suit land was
mortgaged by defendant No.2 to one Sangappa Yedwe for
three years like 1951, 1952 and 1953. It is contended that
the mortgage was redeemed by defendant No.2 by using
the money given by defendant No.1. It is contended that
the defendant No.2 then sold the suit property to
defendant No.1 for the consideration of Rs.1000/- and due
to the said transaction, defendant No.1 came in
possession of the suit property. It is contended that the
transaction took place at the time of Gudi Padwa of the
year 1953 and though no document of sale was executed,
mutation was made in favour of defendant No.1 and since
then he is enjoying the property as owner.
5) Defendant No.1 took alternate defence that he
has become owner by adverse possession as he has been
in possession since the year 1953.
6 SA 441 of 2002
6) Issues were framed by the trial Court on the
basis of the aforesaid pleadings. Both the sides gave
evidence. Both the Courts have held that defendant No.1
failed to prove that he has become owner due to adverse
possession. This Court admitted the appeal on 25-6-2007
on the following substantial question of law :-
"Whether in the facts and circumstances of the
present case, the suit is barred by limitation and that
the adverse possession of the appellant is transformed
into title by prescription and, therefore, the impugned
decree for eviction and delivery of possession is bad
in law and the finding of the first appellate Court in
this behalf is perverse?"
7) The plaintiff has examined many witnesses to
prove that defendant No.1 was helping the defendant No.2
and also to prove that the defendant No.2 is simpleton
person. These witnesses have given evidence that
possession of the defendant No.1 is permissive in nature.
One witness PW 6 Maroti Telang, aged about 80 years,
resident of Ambegaon, has given such evidence. Though
the plaintiff tried to prove that he got possession after the
partition in the year 1979, the evidence of his witnesses
7 SA 441 of 2002
and the record do not support the said case. The revenue
record shows that defendant No.1 was in possession right
from the year 1953-54 (Exhibit 45).
8) Exhibit 45 is the Khasra Pahani Patrak and it
shows that in the year 1953-54 one Rama Machrandi,
probably predecessor of defendant No.2, was shown as
Pattedar/Inamdar. Then this record shows that defendant
No.1 was cultivating the suit land in the year 1953-54.
Exhibit 47 shows that from the years 1955 to 1961 also
the defendant No.1 was cultivating the suit land but entry
of the name of the defendant No.1 came to be made in
ownership column also. Exhibit 47 shows that no mutation
was made to show as to how defendant No.1 became the
owner and this document shows that defendant No.1 was
already in possession and so he had become the owner.
9) One witness Yenka Reddy, brother of Sangappa,
whose name is mentioned in the written statement is
examined by defendant No.1. This witness has given
evidence that in his presence amount of Rs.1000 was
given by defendant No.1 and this amount was distributed
8 SA 441 of 2002
between Sangappa and defendant No.2 and amount of
Rs.500 was given to Sangappa. Further he has tried to say
that the land was mortgaged for the consideration of
Rs.1000 by defendant No.2. Thus he has tried to say that
the defendant No.1 purchased the land from defendant
No.2 for the consideration of Rs.1000/-. His evidence does
not appear to be probable and convincing as Sangappa
would not have accepted Rs.500/- for returning back the
land if he had given Rs.1000 to defendant No.2. Further it
does not look probable that if the land was mortgaged for
Rs.1000 the defendant No.2 would have sold the land for
Rs.1000 to the defendant No.1. There is no such specific
pleading in the written statement. No exact amount of
mortgage money is mentioned in the written statement.
The case stated by the witnesses in the evidence is also
not mentioned in the written statement. Further there is
no record like entry in the revenue record of such
mortgage made in favour of Sangappa.
10) The suit was filed in the year 1980. On the date
of the suit, age of defendant No.3 was shown as 30 years
and so he was born prior to the year 1952. It can be said
9 SA 441 of 2002
that plaintiff was not born at the relevant time as he gave
his age as 22 years on the date of the suit. Due to these
undisputed circumstances it can be said that defendant
No.2 had married with defendant No.4 prior to the year
1952. The case of the defendant No.1 that he purchased
the property from defendant No.2 is not believable. His
age was hardly 22 years. There is no record to show that
the defendant No.1 had any independent source of
income. There is no such pleading though in the evidence
he has tried to say that his family had agricultural land at
other place and said land was sold at the relevant time.
These circumstances have created doubt about entire
defence taken by defendant No.1 in the written statement.
As there was no document like sale deed or any other
document made in favour of the defendant No.1 by
defendant No.2, it was necessary for the defendant No.1
to explain the aforesaid circumstances. It does not look
probable that after making payment of Rs.1000 defendant
No.1 did not obtain anything in writing from defendant
No.2. Due to all these circumstances the case of the
plaintiff appears to be more probable in nature. Thus the
possession of the defendant No.1 over the suit property
10 SA 441 of 2002
was only permissive possession and that was due to
relationship between him and the defendant No.1. The
findings recorded by the Courts below are concurrent on
this point.
11) The learned counsel for the appellant placed
reliance on a case reported as (2008) 4 SCC 594
(Anathula Sudhakar v. P. Buchi Reddy) . The Apex Court
has discussed the provisions of Sections 5,6,37 and 38 of
the Specific Relief Act, 1963 and also the provisions of the
Transfer of Property Act. The facts of the reported cases
are totally different. Two other cases reported as (1)
(2000) 7 SCC 215 (Santosh Singh v. Mahant Iqbal Singh) ;
and,(2) (2006) 7 SCC 570 (T. Anjanappa v. Somalingappa)
were also cited. The third case is on the concept of
adverse possession. The facts of these reported cases
were also different. Only due to some entry made in the
revenue record, no title has passed in favour of defendant
No.1. It can be said that when he was already in
possession from prior to making the entry in his name in
ownership column he cannot say that he got the
possession under the so called oral sale transaction. Due
11 SA 441 of 2002
to all these circumstances there was no other alternative
before the Courts below than to hold that possession is
permissive and the plaintiff is entitled to get the decree.
In the result, the point is answered in negative.
12) The appeal is dismissed. Learned counsel for
the appellant sought further continuation of the interim
relief. It is refused. The amount of mense profit if any
deposited in the Court is to be given to the plaintiff.
Sd/-
(T.V. NALAWADE, J. )
rsl
