Bombay High Court
Radhabai Pundlik Makone And 3 ... vs Girjabai Rajaram Lahudkar And 2 ... on 10 July, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.471 OF 2003
APPELLANTS: 1. Radhabai W/o Pundlik Makone,
(Orig. Defendant Aged about 71 yrs., Occ. Household,
Nos.1 to 4 On R.A.)
R/o Chaitnyua Wadi, Behind Hanuman
Mandir, Old Buldana, Buldana, Distt.
Buldana.
2. Tulsabai W/o Prabhakar Makone,
Aged about 51 yrs., Occ. Household,
R/o Chaitnya Wadi, Circular Road,
Buldana, Distt. Buldana.
3. Rukhmaabai W/o Dattu Ingle,
Aged about 61 yrs., Occ.Household,
R/o Dighi, Tq. Nandura
Distt. Buldana.
4. Usha W/o Gopal Lahudkar
Aged about 61 yrs., Occ. Household,
R/o Jalva Bazar, Tq. Nandura,
Distt. Buldana.
-VERSUS-
RESPONDENTS: 1. Girjabai w/o Rajaram Lahudkar,
(Orig. Plaintiffs and Aged about 66 yrs., Occ. Agriculturist,
defendant Nos.5
and 6 on RA) R/o Jalva Bazar, Tq. Nandura,
Distt. Buldana.
2. Kamlabai W/o Pitambar Hiwarkar,
Aged about 51 yrs., Occ. Agriculturist
R/o Savda, Tq. River,
Distt. Jalgaon Khandesh.
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3. Chandrabhagabai W/o Rambhau
Khande,
Aged about 61 yrs.,
Occ. Agriculturist,
R/o Mendhali, Tq. Nandura,
Distt. Buldana.
Shri R. L. Khapre, Advocate for the appellants.
Shri P.B. Patil, Advocate for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 10
th JULY, 2017.
ORAL JUDGMENT :
1. This appeal under Section 100 of the Code of Civil
Procedure, 1908 has been preferred by the original defendant
Nos.1 to 4 who are aggrieved by the decree passed by the
appellate Court holding respondent nos.1 to 3 - the original
plaintiff and the defendant nos.5 & 6 to be entitled for half share
in field Gut No.122 admeasuring 1 Hectare 66 R.
2. It is the case of the original plaintiff that her husband
Rajaram and the father of defendant Nos.1 to 3 Kisan were real
brothers. Kisan and his wife expired more than thirty years ago
while Rajaram expired in the year 1984. The plaintiff and her
daughters defendant Nos.5 & 6 had half undivided share in the
suit property. The defendant nos.1 to 3, however, on 14-6-1994
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sold the suit property in favour of the defendant no.4. Hence,
aforesaid suit for partition and separate possession of their share
came to be filed.
3. The defendant nos.1 to 4 filed their written statement
at Exhibit-20. Denying the suit claim it was pleaded that initially
both the brothers Kisan and Rajaram were joint owners of field
Survey Nos.3 and 2/2. These fields admeasured 4 acres 29
Gunthas. In consolidation proceedings this field was numbered as
Gut No.122. Pursuant to the partition that took place between the
brothers in 1957, about 5 acres of land in Survey No.2/2 which fell
to the share of Rajaram had been sold by him to one Pundlik Patil
on 24-12-1957. The remaining 50 R land was in possession of
Rajaram and thereafter his legal heirs. It was then pleaded that
the defendant nos.1 to 3 had sold their share of the suit property
to the defendant no.4 and hence the plaintiff was not entitled for
any relief whatsoever.
4. The parties led their evidence. The trial Court after
considering the said evidence held that the plaintiff had failed to
prove that Rajaram and Kisan formed joint Hindu family. It was
held that the sale by Rajaram of his share of the suit field on 24-
12-1957 in favour of Pundlik Patil had been duly proved.
Accordingly, by holding that the sale deed executed by the
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defendant nos.1 to 3 in favour of defendant no.4 was in respect of
their own land, the suit was dismissed.
The appellate Court on a reconsideration of the
evidence on record held that no partition took place prior to 1957
between Rajaram and Kisan. The suit property was held to be
ancestral property and discarding the sale effected by Rajaram, the
suit came to be decreed. Hence, the present appeal by defendant
nos.1 to 4.
5. The second appeal was admitted on the following
substantial question of law:
Did a presumption under Section 114 of
Evidence Act arise as regarding partition
due to consistent revenue record showing
exclusive possession ?
6. Shri R. L. Khapre, learned Counsel for the appellants
submitted that the suit property which was sold by defendant
nos.1 to 3 in favour of defendant no.4 was exclusively owned by
the defendant nos. 1 to 3. Field Survey Nos. 3 & 2/2 were
consolidated and they became Gut No.122 admeasuring 1 Hectare
66 R. These lands were recorded in joint names of the brothers.
Rajaram had received his share of the property in the partition that
took place between the brothers in the year 1957. According to
him, the oral partition of 1957 between the brothers had been
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acted upon and the same was reflected in the revenue entries. The
plaintiff had not explained as to how 50R land came in her
possession and this aspect supported the stand of the defendants
with regard to the partition. The plaintiff sought to take advantage
of the consolidation proceedings to claim a share in the properties.
It was pleaded that the plaintiff was not entitled for any relief.
According to him, there was a valid presumption on account of
long standing entries in the revenue records in favour of defendant
nos.1 to 3 and the same was not rebutted by the plaintiff. In that
regard, he placed reliance upon the decisions in Sri Bhimseshwara
Swami Varu Temple v. Pedapudi Krishna Murthi and others AIR
1973 SC 1299, Karewwa and others v. Hussensab Khansaheb
Wajantri and others AIR 2002 SC 504, Maruthi Jaiwant Nakadi v.
Eknath G. Navarekar and Ors. 2010 AIR SCW 12 and Kuppala Obul
Reddy v. Bonala Venkataq Narayana Reddy AIR 1984 SC 1171.
The appellants had filed Civil Application No.7078 of
2003 for permission to produce certain documents on record. In
the application it is stated that these documents pertain to records
of the revenue proceedings with regard to consolidation of field
Survey Nos.3 & 2/2. It is stated that these documents were
obtained during pendency of the appeal with a view to enable the
Court to effectively decide the appeal. It is therefore prayed that
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these documents be permitted to be taken on record and relied on.
7. On the other hand Shri P.B. Patil, learned Counsel for
respondent Nos.1 to 3 supported the impugned judgment.
According to him, there was no evidence of any oral partition in
the year 1957. Mere mutation entries would not give any right to
the defendant nos.1 to 3 to sell the suit property to the defendant
no.4. The sale deed dated 24-12-1957 had not been proved by the
defendants and hence, the same could not be taken into
consideration. It was urged that the defendants were seeking
relief merely on the basis of mutation entries and this was not
permissible as they are maintained only for fiscal purposes. In that
regard, he placed reliance upon the judgment in Madhu Appa
Wanjole v. Laxman Virappa Wanjole and others 2008(5) Mh.L.J.
680. It was then submitted that the appellate Court rightly
discarded the sale deed at Exhibit-47 and no presumption under
Section 90 of the Evidence Act was available. He referred to the
judgment in Kashibai Martand v. Vinayak "Ganesh and others AIR
1956 Bom 65 in that regard. He, therefore, submitted that the
appeal was liable to be dismissed.
8. I have given due consideration to the respective
submissions and I have also perused the material on record. In so
far as the Civil Application No.7078 of 2003 is concerned, the
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documents sought to be produced are extracts of mutation entries
dated 22-4-1952, a map prepared by the Consolidation Authority,
the records of the consolidation proceedings and 7/12 extracts of
Gut No.122. These documents relate to the suit field and the same
indicate the manner in which both the brothers had initially
purchased Survey No.3 on 22-4-1952. Survey Nos. 3 and 2/2 came
to be consolidated into Gut No.122. The record of the
consolidation of proceedings and the 7/12 extracts thereof relate
to the suit field and refer to the names of the predecessors of both
the parties. These documents have been obtained during pendency
of the appeal. On consideration of these documents alongwith
other material on record, I find that production of these
documents would facilitate the Court in pronouncing the judgment
in an effective manner. All these documents are copies of the
records maintained by the revenue authorities and refer to the
predecessors of the parties. Same are inter-parties. Though this
application was filed on 17-11-2003 and was directed to be heard
alongwith the appeal, the respondents have not come up with any
other documents so as to take away the legal effect of the
documents sought to be produced. Since the dispute pertains to
partition and the documents relate to the suit property itself, its
production is permitted under provisions of Order XLI Rule 27(b)
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of the Code of Civil Procedure, 1908 so as to facilitate rendering of
the complete judgment. Hence, the application stands allowed.
9. The document nos.1 & 2 are the extracts from the
register of rights indicating joint purchase of survey No.2 by Kisan
and Rajaram on 22-4-1952. Similarly, in so far as Survey No.3 is
concerned, it is shown to be inherited by Kisan and Rajaram jointly
from their father after his death. Thus, in the year 1952 both the
brothers were in possession of Survey Nos.3 & 2/2 which was
converted into Gut No.122 standing in the name of both the
brothers. After the sale of half portion of Survey No.2/2 by
Rajaram in favour of Pundlik Patil as per Exhibit-47, validity of
which will be considered subsequently, these documents refer to
share received by Rajaram in partition being sold by him. As per
document at Exhibit-34 which is a 7/12 extract, the plaintiff was in
possession of 50R land from Gut No.122 while the widow of
Pundlik was in possession of 1 Hectare 41R land. Exhibit-46 is
another document with regard to the consolidation proceedings
showing Gut No.122 to be admeasuring 1.91R.
From these documents, the manner in which the joint
property was initially held by Kisan and Rajaram is seen. After the
partition of 1957, half portion to the share of Rajaram was sold
and the plaintiff continued in possession of remaining 50R land.
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10. The sale deed at Exhibit-47 was brought on record in
the deposition of DW-1 Prabhakar Makone. It was a certified copy
of transaction dated 24-12-1957 and it was exhibited after
referring to the objection raised by the plaintiffs in that regard.
The trial Court while deciding the suit observed that it was a
certified copy of a public document which was more than thirty
years old and, therefore, was liable to be exhibited. The appellate
Court held that this sale deed was not duly proved and could not
be read in evidence.
The objection raised by the plaintiff to the exhibition of
sale deed dated 24-12-1957 was with regard to the mode of proof.
This document was thirty years old thus giving rise to presumption
under Section 90 of the Evidence Act. Further execution of this
sale deed has not been challenged by the plaintiff in her
deposition. As observed in Smt. Dayamathi Bai (supra), a certified
copy of the sale deed which was more than thirty years old could
be admitted in the evidence by invoking provisions of Section 90 of
the Evidence Act. I, therefore, find that the appellate Court erred
in holding that the sale deed was not duly proved. Exhibit 47
deserves to be taken into consideration.
11. From the material on record, it can thus be seen that
two fields were jointly owned by Kisan and Rajaram pursuant to
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the partition in the year 1957. Rajaram thereafter executed a sale
deed of his share from Survey No.2/2 in favour of Pundlik Patil
(Exhibit-47). Exhibit-34 thereafter indicates the plaintiff in
possession of remaining portion of 50R land from Survey No.2/2
and the successors of Pundlik Patil in possession of the remaining
portion. The manner in which the plaintiff came in possession of
this 50R land has not been explained by her. As held in Sri
Bhimeshwara Swami Varu Temple (supra), there is a presumption
that arises on account of various entries in the revenue records and
this presumption is not rebutted by mere stray entries in favour of
the other party. Similarly, as observed in Karewwa and others
(supra), a mere statement of fact made in the written statement
cannot rebut such presumption. The decision in Madhu Appa
Wanjole (supra) that was relied upon by the learned Counsel for
the respondents is distinguishable in the facts of the present case
as there is other evidence in the form of consolidation proceedings
as well as the sale deed at Exhibit-47 which indicates partition.
12. It can thus be seen that the plaintiff had failed to prove
that the suit property was ancestral property and hence, she along
with her daughters was entitled for share therein by having it
partitioned. The defendant nos.1 to 3 have proved that the suit
property fell to the share of Kisan and therefore, the sale deed
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dated 14-6-1994 executed by them in favour of defendant no.4
was valid. The trial Court correctly appreciated the evidence on
record and dismissed the suit. The appellate Court erroneously
excluded consideration of the sale deed at Exhibit-47 and
proceeded to decree the suit. For reasons aforestated, the
judgment of the appellate Court is liable to be set aside. The
substantial question of law is answered by holding that the
presumption raised under Section 114 of the Evidence Act
regarding partition on account of exclusive possession of the
defendants has not been rebutted by the plaintiff.
13. In view of aforesaid, the judgment dated 24-7-2003 in
Regular Civil Appeal No.66/1999 is quashed and set aside.The
judgment of the trial Court in Regular Civil Suit No.219/1997
dated 12-4-1999 stands restored.
14. The second appeal is allowed in aforesaid terms with
no order as to costs.
JUDGE
/MULEY/
