Bombay High Court
Nandu Bhagwan Pardeshi vs Hirkanbai Adhar Patil And Others on 15 December, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.61 OF 2017
WITH
CIVIL APPLICATION NO.2895 OF 2017
Nandu s/o Bhagwan Pardeshi,
Age : 45 years, Occupation : Agriculture,
R/o village Jamdi, Taluka Chalisgaon,
District Jalgaon.
...PETITIONER
(Original Defendant)
-versus-
1 Smt.Hirkanbai wd/o Adhar Patil,
Age : 69 years,
Occupation : Agriculture.
2 Shri Deepak s/o Adhar Patil,
Age : 35 years,
Occupation : Agriculture.
3 Sambhaji s/o Adhar Patil,
Age : 30 years,
Occupation : Agriculture.
All R/o village Talonde Digar,
Taluka Chalisgaon,
District Jalgaon.
...RESPONDENTS
(Original Plaintiffs)
...
Shri G.R.Syed, Advocate h/f Shri M.S.Deshmukh, Advocate for the
Appellant.
Shri P.R.Patil and Shri S.R.Patil, Advocates for the Respondents.
...
CORAM: RAVINDRA V. GHUGE, J.
Reserved on 08th December, 2017.
Pronounced on 15th December, 2017.
::: Uploaded on - 18/12/2017 ::: Downloaded on - 19/12/2017 01:46:09 :::
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JUDGMENT:
1 By this Second Appeal, the Appellant/ original Defendant
seeks to challenge the judgment and decree dated 07.08.2013 delivered
by the Trial Court in Regular Civil Suit No.118/2005, as well as the
judgment dated 07.10.2016 delivered by the First Appellate Court, by
which Regular Civil Appeal No.272/2013 filed by the Defendant was
dismissed.
2 I have considered the strenuous submissions of the learned
Advocates for the respective sides.
3 The contention of the Appellant is that the mother of the
original Plaintiffs (Yashodabai) had entered into an agreement to sale on
16.12.1968 with the father of the Appellant (Bhagwan) and the
Appellant's father was put in possession of the land admeasuring 13 H 87
R (Potkharaba 17 H 87 R) in Gat No.3 and the land admeasuring 8 H 62 R
(Potkharaba 1 H 32 R) in Gat No.112. Since then, his father and
thereafter, the Appellant is in peaceful possession of the said land.
4 The original Plaintiffs have preferred Regular Civil Suit
No.118/2005 on 12.08.2005 alleging that they have been illegally
dispossessed after Adhar Dodhu Patil, who had inherited the land from the
mother of the Plaintiffs (Yashodabai Nathu Patil), died on 01.02.2002.
5 The Appellant contended that Yashodabai got married to
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Dodha Patil. As it became difficult for her to cultivate the land after
marriage, she had entered into an agreement to sale on 16.12.1968. She
received Rs.6000/- and she prepared the "Sauda Pavati" in favour of the
father of the Appellant (Bhagwan Rupchand Pardeshi).
6 It is contended that the issue of limitation was raised by the
Appellant/Defendant. The Trial Court has erroneously concluded that the
Plaintiffs were dispossessed of the land after 01.02.2002. The suit was
barred by limitation and the Plaintiffs could not claim recovery of
possession. Twenty two grounds have been set out in the memo of the
Second Appeal and it is contended that they are substantial questions of
law to be considered in this appeal.
7 The learned counsel for the Appellant has relied upon the
judgment delivered by this Court in the matter of Chetan Navnitlal Shah
vs. Fizza Navnitlal Shah w/o Navnitlal Ratanji Shah and others, 2017 (3)
BOM.C.R. 182.
8 The learned counsel for the Respondents/Plaintiffs along with
the learned counsel for the Appellant, have taken me through the
impugned judgment delivered by the Trial Court dated 07.08.2013 and
the judgment of the First Appellate Court dated 07.10.2016.
9 The learned counsel for the Respondents also points out that
the revenue records right upto 2002 indicate that the Respondents/
Plaintiffs were in possession. He has placed reliance upon the following
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judgments:-
(a) Gurudev Kaur and others vs. Kaki and others, (2007) 1 SCC
(b) Bhura Mogiya and others vs. Satish Pagariya and others,
(2001) 9 SCC 385.
10 The record suggests that Yashodabai had agreed to sale the
suit field to Bhagwan Rupchand Pardeshi, father of the Appellant/original
Defendant, for a total consideration of Rs.16,875/-. She received an
amount of Rs.6000/- and executed the sale deed, which was registered
before the Sub Registrar. The Appellant/ original Defendant claims that
the possession of the suit land was handed over to his father, who is the
true owner. He developed the land and even sunk a well in the said land.
The Defendant also took a plea of adverse possession.
11 While considering the evidence, the Trial Court came to a
conclusion, on the basis of the record, that 7/12 extract at Exhibit-19
indicated the names of the Plaintiffs in the occupation column and in the
cultivation column for the years 1996 to 2002. The endorsement in the
7/12 extract is "Khudda" meaning that the Plaintiffs cultivate the land.
Earlier and later possession of the Plaintiffs is also proved on the basis of
the cultivation entries in the 7/12 extracts. There was no explanation
forthcoming from the Defendant about these crop cultivation entries
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recorded in the names of the Plaintiffs for about seven years.
12 The column of crop cultivation entries for the years 1982 to
1995 indicates "GU Pramane" which means as per the earlier entries. The
crop cultivation entries from 1996 till 2001 contain the remark "Khudda".
As such, even if the Appellant/ Defendant claims to have been put in
possession on the basis of the agreement to sale, such possession can be
termed to be permissive possession and which cannot be converted into a
title by way of adverse possession. An adverse possession is only to be
used as a shield and not as a sword, is the settled position of law. So also,
if the Appellant was said to be dispossessed in 1996, he has not taken any
steps either to restore his possession or to correct the entries in the 7/12
extracts.
13 Both the lower Courts have concurrently concluded that the
Plaintiffs appear to have been forcefully dispossessed after 01.02.2002
and hence, the suit for recovery of possession, was within limitation under
Section 5 and Article 64 of the Limitation Act. Both the Courts have
considered the "Sauda Pavati" and the notices dated 29.09.1972,
20.11.1972, 01.06.1973 and 09.01.1975, which indicate that the
Defendant was not in the peaceful possession of the suit property. The
revenue records from 1982 onwards indicate that the Appellant was
shown to be the owner of the suit land. Even otherwise, if the agreement
to sale was presumed to be fully implemented and a sale deed would have
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been registered, the Defendant would have surely moved the appropriate
Revenue Authorities for seeking change in the mutation entries so as to
indicate that he was in legal possession of the suit property and had
acquired ownership of the same. The Sauda Pavati required the
Defendant/ Appellant to obtain permission under the Bombay Prevention
of Fragmentation and Consolidation of Holdings Act, 1947, which was not
taken.
14 It also cannot be ignored that once the agreement to sale was
signed, the contention of adverse possession falls to the ground and the
said contention would not survive. On the one hand, the Defendant claims
that he was put in possession on the basis of the agreement to sale and on
the other hand, he contended that he has acquired the ownership and title
over the suit land by adverse possession.
15 Considering the above and the submissions of the learned
Advocates for the respective sides, I have gone through the grounds
formulated by the Appellant. I do not find that a substantial question of
law emerges from the facts and circumstances of the case.
16 The Second Appeal being devoid of merit is, therefore,
dismissed. No costs.
17 The pending Civil Application does not survive and stands
disposed of.
kps (RAVINDRA V. GHUGE, J.)
