Bombay High Court
Akot vs Fahimuddin Inamdar Son Of on 20 July, 2017
Bench: A.S. Chandurkar
sas341.03&343.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.341 of 2003
AND
Second Appeal No.343 of 2003
A. Second Appeal No.341 of 2003 :
Mohammad Sadiq son of Mohammad
Harun [since deceased, through
legal representatives] :-
1[a] Zakirbai widow of Mohd. Sadique,
[transposed as respondent no.1
as per Court's order dated
4th October, 2005].
1[b] Mohd. Arif Mohd Haroon,
aged 65 years,
Naikwadipura,
Tq. Akot, Distt. Akola.
1[c] Raziya Parveen widow of
Abdul Rashid
[transposed as respondent no.2
as per Court's order dated
4th October, 2005].
1[d] Mumtaz Parveen widow of
Syed. Daud,
aged 69 years,
resident of Khatibpura,
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Akot, Distt. Akola.
1[e] Rukhsana Parveen wife of
Nasir Iqbal,
[transposed as respondent no.4
as per Court's order dated
4th October, 2005]. ..... Appellants.
Plaintiff.
Versus
1. Fahimuddin Inamdar son of
Mohd. Gulam Mohiddin,
aged about 40 years,
occupation - business,
resident of Kidwai Ground,
Lashkari Bagh,
Nagpur, Tq. & Distt. Nagpur.
....Org. Defendant.
2. Zakirbai widow of Mohd. Sadique,
aged about 55 years,
C/o Ashfaque Ali Mohd. Ali,
Khatibpura, Akot,
Tq. Akot, Distt. Akola
[on transposition].
3. Raziya Parveen widow of Abdul
Rashid,
aged about 62 years,
Bakarpura, near Khatibpura,
Akot, Distt. Akola
[on transposition].
.
4. Rukhsana Parveen wife of Nasir
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Iqbal,
aged about 58 years,
resident of Lashkari Bagh,
Nagpur
[on transposition]. ..... Respondents.
*****
Mr. A. M. Ghare, Adv., for the appellants.
Mr. Pruthiviraj S. Chawhan, Adv., for respondent no.1.
Mr. R. S. Kalangiwale, Adv., for respondent nos. 2,3 and 4.
*****
B. Second Appeal No.343 of 2003 :
Mohammad Sadiq son of Mohammad
Harun [since deceased, through
legal representatives] :-
1[a] Zakirbai widow of Mohd. Sadique,
[transposed as respondent no.1
as per Court's order dated
4th October, 2005].
1[b] Mohd. Arif Mohd Haroon,
aged 65 years,
Naikwadipura,
Tq. Akot, Distt. Akola.
1[c] Raziya Parveen widow of
Abdul Rashid
[transposed as respondent no.2
as per Court's order dated
4th October, 2005].
1[d] Mumtaz Parveen widow of
Syed. Daud,
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aged 69 years,
resident of Khatibpura,
Akot, Distt. Akola.
1[e] Rukhsana Parveen wife of
Nasir Iqbal,
[transposed as respondent no.4
as per Court's order dated
4th October, 2005]. ..... Appellants.
Plaintiff.
Versus
1. Fahimuddin Inamdar son of
Mohd. Gulam Mohiddin,
aged about 40 years,
occupation - business,
resident of Kidwai Ground,
Lashkari Bagh,
Nagpur, Tq. & Distt. Nagpur.
....Org. Defendant.
2. Zakirbai widow of Mohd. Sadique,
aged about 55 years,
C/o Ashfaque Ali Mohd. Ali,
Khatibpura, Akot,
Tq. Akot, Distt. Akola
[on transposition].
.
3. Raziya Parveen widow of Abdul
Rashid,
aged about 62 years,
Bakarpura, near Khatibpura,
Akot, Distt. Akola
[on transposition].
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4. Rukhsana Parveen wife of Nasir
Iqbal,
aged about 58 years,
resident of Lashkari Bagh,
Nagpur
[on transposition]. ..... Respondents.
*****
Mr. A. M. Ghare, Adv., for the appellants.
Mr. Pruthiviraj S. Chawhan, Adv., for respondent no.1.
Mr. R. S. Kalangiwale, Adv., for respondent nos. 2,3 and 4.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 20th July, 2017
ORAL JUDGMENT:
In Second Appeal No. 341 of 2003, leave is granted to
amend the prayer clause. Amendment be carried out forthwith.
------
01. Both these appeals can be conveniently decided by this
judgment as they arise out of common judgment by the trial Court as
well as the first appellate Court. The appeals have been heard on the
following substantial question of law:-
"Whether the first appellate Court could have non
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suited the appellant on the basis of document at Exh.62
when the trial Court had discarded the document for
the reasons recorded in the judgment and the first
appellate Court had not considered the facts and
circumstances considered by the trial Court while
reversing the finding in regard to the proof of document
at Exh.62?"
02. The appellants are the legal heirs of the original plaintiff. It
is the case of the plaintiff that he was related with the respondent -
original defendant. In view of their cordial relations, they jointly
purchased three properties. After this purchase, portions of those
properties were further sold to third parties. According to the plaintiff,
he had contributed equally in the purchase of the aforesaid properties
and, therefore, he had half share in the same. As the defendant
disputed the share of the original plaintiff, the same gave rise to
disputes between the parties. The plaintiff, therefore, filed Special
Civil Suit No. 212 of 1995 for partition of the suit properties coupled
with possession.
03. The defendant filed his Written Statement and disputed the
claim of the plaintiff. According to him, the plaintiff had contributed a
sum of Rs.85,000-00 initially. While entering into agreements for
purchasing the suit properties, this fact was mentioned. According to
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the defendant, it was agreed that he would have a share only in the
agricultural land and not in the non-agricultural land. The plaintiff had
taken away a sum of Rs. 75,000-00 from the defendant on 30 th
January, 1991, on the ground that he needed that amount for
purchasing some other property. Thus, according to the defendant,
only a sum of Rs.10,000-00 was contributed by the plaintiff. It was,
thus, the case of the defendant that the plaintiff did not have any
share in the suit properties.
04. The plaintiff thereafter filed Regular Civil Suit No. 789 of
1995 with regard to non-agricultural land admeasuring ten Gunthas
along with a bungalow standing thereon. In this suit, it was prayed
that after the purchase of this property on 27 th February, 1991, the
plaintiff had been put in possession. The relief of permanent injunction
was sought on the ground that the defendant was trying to forcibly
dispossess him.
05. According to the defendant, the plaintiff had no right or
interest in the property in question. Only because his name was
entered in the sale-deed, the plaintiff was trying to take advantage of
the same. The relief as sought came to be opposed.
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06. After parties led evidence, the trial Court found that the
plaintiff was entitled to half share in the suit properties. The
documents at Exhs.62 and 63 that were relied upon by the defendant
were held to be not proved. In view of provisions of Section 45 of the
Transfer of Property Act, 1882 [for short, "the said Act"], Special Civil
Suit No. 212 of 1995 was decreed by granting half share to the
plaintiff. Regular Civil Suit No. 789 of 1995 came to be dismissed.
07. The defendant being aggrieved by the decree passed in
Special Civil Suit No.212 of 1995 filed Regular Civil Appeal No. 420 of
2000. The defendant also filed Regular Civil Appeal No. 427 of 2000
challenging the dismissal of his suit being Regular Civil Suit No. 414 of
1997.
08. The appellate Court allowed both the appeals. The suit of
the plaintiff came to be dismissed, but the defendant was restrained
from alienating the suit property without his consent. Regular Civil
Suit No. 414 of 1997 was partly decreed and the original plaintiff was
restrained from alienating the suit property without consent of the
defendant. Being aggrieved, the plaintiff has filed the aforesaid two
appeals.
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09. Shri A. M. Ghare, learned counsel for the appellants,
submitted that it was the case of the plaintiff that he had equally
contributed in the purchase of three properties, sale-deeds of which
were at Exhs.39, 40 and 41. The defendant had come up with the case
that though the plaintiff had initially contributed Rs.85,000/-, he had
taken away a sum of Rs.75,000/- on 30th January, 1991; but the
document executed in that regard was not proved. He submitted that
Exh.62 that was relied upon by the defendant did not bear any date
and it was prepared in English, when, in fact, the plaintiff did not know
the English. The plaintiff had denied his signature on the said
document. The trial Court after considering the entire evidence on
record had recorded cogent reasons for discarding that document. The
appellate Court, however, brushed aside this finding and in a cursory
manner held that document to be duly proved. He submitted that
merely by examining an attesting witness, the contents of that
document could not be proved. He then submitted that Exh.63 which
was a Surrender-Deed was held to be not proved by both the Courts
and, therefore, the defence as raised was not proved by the defendant.
According to him, if the document at Exh.62 is excluded from
consideration, the plaintiff is entitled to succeed and receive half share
in the suit properties in view of provisions of Section 45 of the said Act.
In support of his submissions, the learned counsel placed reliance on
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the following decisions:-
[a] Santosh Hazari Vs. Purushottam Tiwari (dead) by
Lrs [AIR 2001 SC 965],
[b] Ranchhod Lala of Sayli Vs. Union Territory of
Dadra & Nagar Haveli [AIR 1996 Bom.65], and
[c] K. G. Shivalingappa (D) by L.Rs. and others Vs. G.
S. Eswarappa & others [AIR 2004 SC 4130].
10. Shri P. S. Chawhan, learned counsel for the respondent No.1,
supported the impugned judgment. According to him, the plaintiff had
not made equal contribution in the purchase of the suit properties.
After initially paying an amount of Rs.85,000-00, he had taken back Rs.
75,000-00. This fact was clear from the document at Exh.62. Though
this document was in English, the plaintiff had signed the same. The
defendant had examined the attesting witness - PW 7 who had
deposed that he had seen the plaintiff signing the same. He referred
to the deposition of the Handwriting Expert who had opined that the
signature was that of the plaintiff. According to him, the appellate
Court rightly considered this evidence and held the said document to
be duly proved. As the plaintiff had not proved that he had equally
contributed in the purchase of the suit fields, he was not entitled to
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any share in the same. According to him, on an overall consideration
of the evidence on record, the appellate Court was justified in
dismissing the suit filed by the plaintiff and granting relief to the
defendant. To substantiate his arguments, the learned counsel for the
respondent relied upon following judgments:-
[i] Deo Krishna Singh Vs. Hareudra Prasad [LEX (pat)
1980 118], and
[Ii] Hanumantrao Ramrao Deshmukh Vs. Krishnabai
Ramrao Deshmukh [1986 (1) Bom.C.R.50].
11. I have heard the learned counsel for the parties at length
and I have also perused the records of the case.
12. The material question to be considered is with regard to the
document at Exh.62. As per this document, the plaintiff acknowledged
that he had received a sum of Rs.75,000/- from the defendant and the
amount was adjusted in the agreement of purchase of the bungalow in
Survey No. 23/1. Perusal of this document indicates that it is
transcribed in English and is shown to be signed by the plaintiff and
two attesting witnesses. The plaintiff examined himself below Exh.37.
He deposed about various contributions made by him, on the basis of
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which sale-deeds at Exh.39, 40 and 41 came to be executed. In his
deposition, he was referred to two documents which he denied to have
signed. The relevant extract of his deposition in that regard reads
thus:-
"5. ...........................................................................
.............Now, documents below list Ex.44/10, Exh.44/11
& 12 shown to me, do not bear my signatures. I have
not executed such type of documents nor I went to
purchase the stamp (The counsel has referred both the
documents to the witness and shown the signatures.
Hence, they are exhibited. They are at Ex.62 and
63). ......"
In his cross-examination, he denied his signatures made on
those documents and also denied that the defendant had given him
Rs.75,000-00. PW 2 who was a stamp vendor was examined below
Exh.86. He deposed that a stamp paper of Rs.50/- was purchased on
12th January, 1995 bearing entry no. 6601. Though it was purchased in
the name of the plaintiff, there was no signature of the plaintiff on the
register, but it was actually purchased by the defendant. In his cross-
examination, he denied that that though the plaintiff had purchased
the stamp paper, he had not signed the register.
13. The defendant examined himself below Exh.96. He deposed
that though initially the plaintiff had brought an amount Rs.85,000-00,
on 30th January, 1991, he had taken away Rs.75,000-00 from him. The
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document at Exh.62, therefore, came to be executed. In his cross-
examination, he admitted that there was no date mentioned in Exh.62.
He also admitted that plaintiff was not knowing the English and that he
was not aware why said document was not typed in Hindi. The
defendant then examined PW 7 - Nasimoddin below Exh.120. He was
an attesting witness to Exh.62 and in his cross-examination he
admitted that the document was not typed in his presence. He further
stated that though it is necessary to mention the date and place of
execution of the document, same was not mentioned. PW 9 is the
Handwriting Expert at Exh.191. He had opined that the disputed
signatures at Exhs.62 and 63 were though of the plaintiff.
14. On consideration of the aforesaid evidence, the trial Court in
paragraphs 51 to 61 gave various reasons for holding that the
execution of this document at Exh.62 was not duly proved. It noted
that the document did not bear any date or mention the place of
execution. The manner in which Rs.75,000/- were paid was not stated.
The contents of this document at Exh.62 have not been shown to be
duly proved. The plaintiff in his deposition categorically denied his
signature on this document. The evidence of the defendant or PW 7
does not prove the contents of the document at Exh.62. The stamp
paper for preparing the document at Exh.62 was dated 23rd January,
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1991. Despite this, the name of the plaintiff was shown in the sale-
deed at Exh.39 which was executed subsequently on 27th February,
1991. There is no explanation coming forth for inclusion of the
plaintiff's name in the sale-deed, if, in fact, he was returned the
amount of Rs.75,000/-. It is on the aforesaid basis that the trial Court
did not accept this document at Exh.62.
15. The appellate Court while reversing this finding of the trial
Court gave importance to the deposition of PW 7 who was the attesting
witness and the opinion of the Handwriting Expert. On that basis, it
proceeded to hold that Exh.62 was duly proved.
16. The manner in which the appellate Court should come to
close quarters with the judgment of the trial Court while reversing the
same has been laid down in Santosh Hazari [supra]. It has been
observed that while reversing a finding of fact, the appellate Court
must come into close quarters with the reasoning assigned by the trial
Court and then assign its own reasons for arriving at a different
conclusion. The appellate Court without doing so and without
considering the reasons that weighed with the trial Court proceeded to
hold otherwise. In this background, the decisions relied upon by the
learned counsel for the respondent in the case of Hanumantrao
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Ramrao Deshmukh and Deo Krishna Singh [supra] do not support his
contentions. I find that the appellate Court was not justified in
reversing the finding with regard to the document at Exh.62 as it was
rightly returned by the trial Court.
17. If the document at Exh.62 is excluded from consideration
and Exh.63 not having been held to be proved by both the Courts, the
only way in which the rights of the parties can be determined is by
considering provisions of Section 45 of the said Act. It is not in
dispute that in all the three sale-deeds, the names of plaintiff and
defendant as joint purchasers are mentioned. In terms of Section 45 of
the said Act, if there is no evidence to indicate the proportion of the
shares of consideration contributed by the parties, they are entitled to
equal share. The ratio of the decision in Ranchchod Lala [supra]
supports the stand of the plaintiff.
18. In that view of the matter, I find that the trial Court had
rightly appreciated the evidence on record and by discarding the
document at Exh.62, had decreed the suit for partition. The appellate
Court committed an error while holding this document to be duly
proved. The substantial question of law as framed is, thus, answered
in favour of the appellant. As a result, the decree passed by the trial
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Court in Special Civil Suit No. 212 of 1995 as well as in Regular Civil
Suit No. 414 of 1997 will have to be restored.
19. In Second Appeal No. 343 of 2003, Civil Application No. 537
of 2017 has been jointly filed by respondent nos. 2 to 4. It is prayed by
them that the compromise arrived at between respondent nos. 2 to 4
and respondent no.1 be recorded. I find that this aspect of the matter
can be considered by the executing Court as and when the decree as
passed is sought to be executed. Hence, it is open for respondent nos.
1 to 4 to put their stand in this regard before the executing Court.
20. In view of aforesaid discussion, Second Appeal No. 343 of
2003 and 341 of 2003 are allowed.
21. The judgment of the first appellate Court in Regular Civil
Appeal Nos. 420 of 2000 and 427 of 2000 is quashed and set aside.
The judgment of the trial Court in Special Civil Suit No. 212 of 1995
and Regular Civil Suit No. 414 of 1997 is restored. There would be no
order as to costs.
22. At this stage, the learned counsel for the original defendant
seeks time of eight weeks to take appropriate steps in the matter.
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This request is opposed by the learned counsel for the plaintiff. The
decree as passed shall be executed after a period of eight weeks.
Judge
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