Taibai W/O Nagorao Tolmare vs Shantabai Ramrao Khanderao & ...
2017 Latest Caselaw 5568 Bom

              SA208.00.odt                                                                               1/17

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.

                                             SECOND APPEAL NO.208 OF 2000

               APPELLANTS:                                        Taibai W/o Nagorao Tolmare, 
               Defendant                                          Aged about 45 years, 
                                                                  Occupation:household, 
                                                      R/o Akot, District - Akola.
                                                                  
                                                        -VERSUS-

               RESPONDENTS: 1.                                    Smt.   Shantabai   W/o   Ramrao
                                                                  Khanderao, Aged 55 years,
                                                     2.           Shri Nilkanth Ramrao Khanderao, aged
                                                                  25 years,
                                                     3.           Sau.   Vanmala   w/o   Shankarrao
                                                                  Waghmare, aged about 30 years,
                                                     4.           Bharat   Ramrao   Khanderao,   Aged   28
                                                                  years,
                                                     5.           Sau. Kanhopatra Shalikrao Dhokne, age
                                                                  26 years,
                                                     6.           Sau.   Mangala   Ramesh   Jayale,   aged   24
                                                                  yrs.,
                                                     7.           Wasudeo   Ramrao   Khanderao,   Aged   2
                                                                  years,
                                                     8.           Ambadas   Ramrao   Khanderao,   Aged   21
                                                                  years,
                                                     9.           Ravindra   Ramrao   Khanderao,   Aged   19
                                                                  yrs.,
                                                     10.          Ku.  Vandana Ramrao   Khanderao,  Aged
                                                                  18 yrs.,




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                                                                  Nos.1,2,4,7,8,9 & 10 R/o Chandikapur,
                                                                  No.3   R/o   Ruikhed,   No.5   R/o
                                                      Gavandgaon & No.6 R/o Bochara.
                                                                                                                       

              Shri A. M. Ghare, Advocate for the appellant.
              Shri B. N. Mohta, Advocate for respondent nos.1 to 10


              CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 27-07-2017. DATE ON WHICH JUDGMENT IS PRONOUNCED: 04-08-2017.

ORAL JUDGMENT :

1. This appeal under Section 100 of the Code of Civil

Procedure, 1908 has been preferred by the original defendant who

is aggrieved by the judgment of the appellate Court decreeing the

suit for possession in favour of the original plaintiff.

2. The facts in brief are that field Survey No.98 was the

subject matter of the proceedings before the tenancy authorities.

On 5-8-1968, in those proceedings, a purchase certificate for the

entire Survey number admeasuring 29 acres 26 gunthas came to

be issued in the name of Ramrao and his three brothers namely

Shamrao, Bhauro and Babarao. Thereafter each brother equally

received 7 acres 17 gunthas land each. According to Ramrao, the

husband of the daughter of Babarao - Taibai was a Patwari and at

his intervention said Taibai had started claiming right in 97R land

from Survey No.98/2 which was allotted to Ramrao. According to

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him, there were proceedings under Section 145 of the Code of

Criminal Procedure, 1973 between them on account of disputes

with regard to possession. Said Taibai had also initiated revenue

proceedings under the Mamaltdar's Courts Act, 1908. Ramrao

accordingly on 22-7-1987 filed suit initially for a declaration that

Taibai had no legal right to disturb his possession. By amending

the suit, possession of 97R land was also sought from the

defendant.

3. In the written statement filed by the defendant it was

not disputed that each of the four brothers had received 7 acres 17

gunthas land from Survey No.98. According to her, the plaintiff

Ramrao in the year 1980 proposed an arrangement whereby he

offered the defendant land admeasuring 2 acres 16 gunthas from

Survey No.98/2 along with cash amount of Rs.5000/- and in

exchange, the plaintiff was given 36 gunthas of land from Survey

No.125/1 which was fertile land. The parties were accordingly put

in possession of the respective properties. As the defendant

apprehended disturbance to her possession, she had initiated the

revenue proceedings. According to her, the plaintiff accepted this

arrangement and having accepted the amount of Rs.5000/- had

acted upon the mutual exchange. It was, therefore, prayed that

the parties were in possession as per oral arrangement/exchange

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and hence, the suit was liable to be dismissed.

4. After the parties led evidence, the trial Court recorded

a finding that in the year 1980, there was an oral arrangement

between the parties and pursuant thereto they were cultivating

their lands as agreed. The trial Court, therefore, dismissed the suit.

The appellate Court held that the plaintiff being the recorded

owner of the suit property, he was entitled to possession. The

theory of oral exchange was disbelieved. After allowing the appeal

suit came to be decreed.

5. While admitting the appeal, the following substantial

questions of law came to be formulated:

(1) Whether the learned Judges below erred in law in not framing a vital and important issue, which goes to the root of the matter i.e. "whether the plaintiff proved that the so called partition of F.S. No.98 of the mouza Chandikapur admeasuring 24 acres and 26 gunthas between him and his brothers was invalid as said partition was hit by the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act ?

(2) Whether the learned Lower Appellate Court committed a serious error in law in rejecting the contention of the appellant that the respondent/plff cannot claim exclusive

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ownership or title over suit field, as the alleged partition is invalid as the same is contrary to provisions of Section 57 of the Bombay Tenancy & Agricultural Lands Act, on the ground that the word "Partition" has been deleted in the year 1982 from the Section 57 of the said Act, without appreciating the evidence and without giving any finding as to whether the alleged partition has taken place prior to 1982 or after 1982 and giving a perverse finding that suit is filed after July, 1987 since would be governed by amended provisions?

(3) Whether the learned Lower Appellate Judge erred in law in completely overlooking and not considering the vital unrebutted evidence from the deposition of the power of attorney holder of the applicant i.e. Shri Nagorao Dholmare?

6. After hearing the learned Counsel for the parties, an

additional substantial question of law was framed which reads

thus:

(4) "Whether the plaintiffs are estopped from seeking the relief of declaration of title and possession in view of the mutual exchange of lands with the defendant which exchange was acted upon?"

The learned Counsel for the parties were thereafter

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heard on all the substantial questions of law. With their assistance

I have also perused the records of the case.

7. Shri A. M. Ghare, learned Counsel for the appellant

submitted that the partition between the plaintiff and his brothers

was invalid in view of provisions of Section 57 of the Maharashtra

Tenancy and Agricultural Lands Act, 1958 (for short, the said Act).

According to him, in absence of any prior consent of the Collector

such partition was invalid in law and it gave no right to the

plaintiffs to seek possession. He submitted that the appellate

Court erred in holding that as the suit was filed after July, 1987,

the matter would be governed by the amended provisions of

Section 57 of the said Act. It was then submitted that the plaintiff

having accepted the oral arrangement/exchange of his field with

that of the defendant's field, he was estopped from seeking

possession of the suit property. It was necessary that such

exchange ought to have been reduced to writing and the oral

arrangement/exchange by itself did not give any right to the

plaintiffs to seek possession.

In the alternate and without prejudice to his above

submissions, it was urged that the plaintiff was estopped from

going behind the oral exchange of lands. He referred to the

evidence on record to urge that the same indicated that both the

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parties had acted upon this mutual arrangement and, therefore,

the plaintiff was now precluded from going back on the same. The

plaintiff could not take advantage of the absence of any written

document. According to him, the doctrine of "pari delicto" would

apply to the facts of the case inasmuch as both the parties were

responsible for not having the mutual arrangement reduced into

writing and, therefore, in such situation, the Court would not assist

either of the parties. In that regard he placed reliance on the

decisions in V. S. Rahi vs. Ram Chambeli (1984) 1 SCC 612, Mohd.

Salimuddin vs. Misri Lal (1986) 2 SCC 378 and Virender Singh v.

Laxmi Narain and another 2007 Cr.L.J. 2262. It was then

submitted that on the doctrine of equitable estoppel, the plaintiffs

were not entitled for possession. For said purpose, he referred to

the decision of the Hon'ble Supreme Court in M/s Motilal

Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and others

(1979) 2 SCC 409. It was, therefore, submitted that the suit was

liable to be dismissed.

8. Shri B. N. Mohta, learned Counsel for the respondents

supported the impugned judgment. According to him, by virtue of

amendment to the provisions of Section 57 of the said Act, the

partition between the parties was legal and valid as it had been

carried out prior to the amendment. Such partition was not barred

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by provisions of Section 57 of the said Act. It was then submitted

that the plaintiff had filed the suit for possession on the basis of

title. The stand that there was an oral arrangement between the

parties for exchange of the lands could not be accepted in view of

the provisions of Section 118 of the Transfer of Property Act, 1882.

According to him, such exchange in absence of any writing could

not be acted upon. Even the evidence on record did not support

the defence as sought to be raised by the defendant that the oral

exchange was acted upon. The husband of the defendant was a

Patwari and at his instance, the defendant had initiated

proceedings before the revenue authorities. According to him there

could not be any estoppel against statute and the plaintiff having

title to the suit property was entitled to his land. In that regard he

placed reliance on the decisions in State of U.P. vs. M/s Manchar

and Co. Bareilly AIR 1971 SC 2131, Ram Naresh and anr. Vs.

Ganesh Mistr AIR 1952 All 680 and R. S. Maddanappa vs.

Chandramma AIR 1965 SC 1812. He, therefore, submitted that the

appellate Court rightly found that the plaintiff was entitled for

possession on the basis of his title. The learned Counsel also placed

reliance on the decisions in Parma Nand v. Champa S. Lal and

others AIR 1956 Allahabad 225, Ramkripal Sheoprasad and others

v. Municipal Committee, Bilaspur, AIR 1963 MP 240 and urged that

SA208.00.odt 9/17

the appeal was liable to be dismissed.

9. The plaintiff examined the son of Ramrao - Wasudeo

at Exhibit-96. He deposed that after partition amongst the four

brothers, his father got his share of land admeasuring 7 acres 17

gunthas. He deposed that till the month of July 1986-87, his

father had cultivated the field after which the defendant took

forcible possession of 97 gunthas land from the southern side. He

referred to the revenue records to indicate possession from 1980

onwards till 1986-87. He denied that 36R land from Survey

No.125(1) was given in exchange to his father. The defendant was

in possession of 36 R land from Survey No.125/1. In his cross-

examination he admitted that the revenue records of field Survey

No.125/1 indicated the name of his father - Ramrao for the year

1986-1987 till 1990-91. After the death of his father, the name of

his brother Nilkanth and others was shown. He could not give any

reason as to how the name of his father and his brother was shown

in the revenue records of field Survey No.125/1. Another witness

examined was Uttam Wankhede at Exhibit-115.

The defendant examined her husband Nagorao at

Exhibit-147. He stated that the field Survey No.98/2 had come to

the share of the defendant in the mutual exchange. 36 gunthas

land from Survey No.125 and Rs.5000/- were paid to Ramrao in

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exchange of land admesuring 2 acres 16 gunthas from Survey

no.98/2. An amount of Rs.5000/- was given as Ramrao's

daughter was to get married. He referred to the revenue extracts

at Exhibit-151 to 158 with regard to Survey No.125 to show the

possession of Ramrao and his sons. He stated that land admesuring

36 R was in possession of Ramrao and his sons. In his cross-

examination he admitted that the revenue entries from 1980 to

1985 in respect of field Survey no.125/1 were in the name of the

defendant. The exchange was not registered. The defendant also

examined other witnesses including DW-4 at Exhibit-178 who had

witnessed acceptance of Rs.5000/- by Ramrao.

As to substantial question nos.1 and 2.

10. In so far as provisions of Section 57 of the said Act are

concerned, they place a restriction on the transfer of land which is

purchased by a tenant under provisions of that Act. Initially

transfer by way of sale, gift, exchange, mortgage, lease,

assignment or partition without the previous sanction of the

Collector was not permissible. However, by Maharashtra Act No.5

of 1982 the words "or partition" were deemed always to have been

deleted. The effect of this amendment is that since inception

transfer of land purchased by a tenant by way of partition was not

barred. In the light of this legal position, the learned counsel for

SA208.00.odt 11/17

the appellant rightly did not further urge substantial question of

law at Sr. Nos.1 & 2 as framed. In that view of the matter, the

partition between four brothers of Survey No.98 was, therefore,

not illegal. It is, thus, not necessary to further consider aforesaid

substantial questions of law.

As to substantial question nos. 3 and 4.

11. According to the defendant, there was mutual

exchange of lands between the plaintiff and herself. This

arrangement however was not documented. While considering

this aspect of mutual exchange of lands, it would be necessary to

refer to the law laid down as regards family settlement between

family members. In Kale and others vs. Dy. Director of

Consolidation and others AIR 1976 SC 807, the Hon'ble

Supreme Court in para 44 has held as under:

"44..................................................................

.................The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could not be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under

SA208.00.odt 12/17

the settlement keep their mouths shut for full seven years and later try to resile from the settlement....................................................... ............"

It was observed that even if a family settlement was

not registered, it would operate as a complete estoppel against the

parties who have acted upon the same. A party who has taken

advantage under the family arrangement is precluded from

challenging the same.

12. Since the defendant seeks to rely upon the oral

exchange of her land with the plaintiff, it is necessary to consider

the evidence on record in respect of exchange of lands. The

defendant examined her husband at Exhibit-147. He deposed that

the defendant had succeeded to field Survey No.125 with regard to

36 gunthas land. As per the oral exchange, this piece of land and

Rs.5000/- were given to Ramrao and in exchange he handed over

possession of 2 acres 16 gunthas land from Survey No.98/2. No

permission in that regard was taken from any revenue authority

nor were the terms of exchange got written down. Amount of

Rs.5000/- was given to the plaintiff in 1987. This amount was

given in the presence of one Atmaram Lawad who has been

examined below Exhibit 178. To demonstrate that Ramrao and his

sons were cultivating 36 gunthas land from Survey No.125, the

7/12 extracts at Exhibit 151 to 158 were placed on record. To

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show the defendant's possession of 2 acres 16 gunthas land from

Survey No.98/2, the 7/12 extracts at Exh50 and 160 were placed

on record. The said witness referred to the proceedings before the

Tahsil Office as well as in the Mamalatdar Court. He, therefore,

deposed that both parties had acted on the oral exchange and they

were in possession of the exchanged lands. After the death of

Ramrao his legal heirs were in possession of Survey No.125/1. In

his cross examination, he denied various suggestions made and

admitted that he did not seek correction of the revenue records

from 1980 to 1985. Other witnesses examined by the defendants

were to show the possession of the defendant of field Survey

No.98/2.

13. The plaintiffs' witness was his son and according to

him, the defendant had taken forcible possession of 2 acres 16

gunthas land. In his cross examination he admitted that from the

year 1986-87 till 1990-91, the crop statement of field Survey

No.125/1 was in the name of his father Ramrao and after the

death of Ramrao, the names of his sons were entered. He could

not give any reason as to why the names of Ramrao and his sons

were shown in the crop statement of field Survey No.125/1.

14. The evidence on record thus indicates that after the

alleged oral exchange, the parties thereto came in possession of

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the exchanged lands. If the defendant had succeeded to Survey

No.125/1 in her own right, there was no reason for the names of

Ramrao and after his death the names of his sons being reflected

as being in possession thereof and no explanation in that regard

could be furnished by the plaintiff. Similarly, the defendant could

show her possession in respect of the exchanged portion of land

from Survey No.98/2. She also initiated proceedings before the

revenue authorities to protect her possession. It is on the

appreciation of this evidence that the trial Court disbelieved the

case of the plaintiff and dismissed the suit. The stand of the

defendant with regard to the oral exchange was accepted. The

first appellate Court, however, disbelieved this evidence on the

ground that the exchange was not supported by any document. It

was held to be not permissible under Section 118 of the said Act.

15. In the revenue proceedings initiated by the defendant,

the Circle Inspector after inspection on 5-4-1986 reported that the

defendant was in possession of 2 acres 16 gunthas land from

Survey Nos.97 and 98/2. This is clear from the order dated

31-10-1986 (Exhibit-161) passed by the Tahsildar, Akot. The

proceedings were concluded prior to the filing of the suit as the

suit was filed on 23-7-1987. Similarly, on 17-7-1987 the Tahsildar,

Akot injuncted the plaintiff from obstructing the possession of the

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defendant in respect of the suit land as she was found in

possession thereof (Exhibit-165). These proceedings clearly

indicate the defendant's possession over the suit land even prior to

filing of the suit and substantiate her defence that this oral

exchange had been acted upon as she was put in possession of

Survey No.98/2 on that basis.

It is also necessary to refer to the order dated

30-9-1988 (Exhibit-163) passed by the Mamlatdar in proceedings

initiated by the defendant prior to filing of the present suit. The

Mamlatdar after referring to the oral statement of Ramrao dated

3-6-1986 in proceedings before the Magistrate that there was a

mutual exchange of lands in the year 1980 restrained the present

plaintiff from disturbing the defendant's possession of the suit

property under Section 5 of the Mamlatdar Courts Act, 1904. Even

in proceedings under Section 145 of the Code of Criminal

Procedure, 1973 that were initiated before filing of the suit, the

Sub - Divisional Magistrate, Akot on 9-6-1988 (Exhibit-162)

recorded the defendant's possession of the suit property. Hence,

there is sufficient material on record to indicate that the parties

were put in possession of the exchanged lands and that it was the

plaintiff who was seeking to resile from this oral exchange.

16. I find that the observations of the Hon'ble Supreme

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Court in Kale and others (supra) apply to the facts of the present

case. An oral family arrangement between family members is

recognized. Such family arrangement has been held to be binding

on the parties and would operate as an estoppel by preventing the

parties after having taken advantage under such arrangement to

resile from the same and attempt to revoke it. This is exactly the

situation that has arisen in the case in hand. The plaintiff having

been put possession of 36 gunthas of land from Survey No.125/1

is now seeking possession of land admeasuring 2 acres 16 gunthas

from Survey No.98/2 that was exchanged and given to the

defendant. In the light of this factual position on record and the

law as laid down in Kale and others (supra), the decisions relied

upon by the learned Counsel for the respondents cannot be made

applicable to the facts of the present case. Though there cannot be

estoppel against law, the position with regard to family

arrangements stand on a different pedestal. Courts lean in favour

of such family arrangements that are acted upon and are slow in

unsettling the same merely on the ground of absence of

documentation and subsequent registration. I find that the

plaintiff is, therefore, estopped from seeking possession of the

exchanged land having accepted the oral arrangement. The

provisions of Section 118 of the Transfer of Property Act, 1882

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would, therefore, not preclude the defendant from continuing in

possession of the exchanged land. The appellate Court committed

an error while decreeing the suit after setting aside the judgment

of the trial Court. The relevant material indicating acceptance of

the family arrangement prior to filing of the suit has been

unnecessarily discarded. The effect of the decree passed by the

appellate Court if maintained would be that the plaintiff would be

entitled not only to continue with possession of 36 gunthas land

from Survey No.125/1 but would also get possession of the

exchanged land from Survey No.98/2.

17. Accordingly, substantial question nos. 3 and 4 are

answered by holding that the plaintiffs are estopped from seeking

the relief of declaration of title and possession in view of the

mutual exchange of lands that was acted upon. As a result, the

judgment dated 11-7-2000 in Regular Civil Appeal No.119/1995 is

quashed and set aside and judgment of the trial Court in Regular

Civil Suit No.239/2017 dated 29-4-1995 stands restored. The

second appeal is accordingly allowed with no order as to costs.

JUDGE

/MULEY/