Bombay High Court
Bandu Ramdas Mahalle & 2 Ors vs Shri Ramdas Pralhadrao Mahalle & ... on 9 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 216 of 2003
1. Bandu Ramdas Mahalle,
aged about 24 years,
occupation - service,
resident of Saraswati Nagar,
Amravati, Tq. Distt. Amravati.
2. Chandu Ramdas Mahalle,
aged about 20 years,
occupation - nil,
resident of Saraswati Nagar,
Amravati, Tq. & Distt.
Amravati.
3. Vanita Ramdas Mahalle,
aged about 16 years,
minor by guardian
brother Bandu Ramdas Mahalle,
aged 24 years,
resident of Saraswati Nagar,
Amravati, Tq. & Distt. Amravati. ..... Appellants.
Versus
1. Shri Ramdas Pralhadrao Mahalle,
aged about 50 years,
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2
resident of Amravati,
Tq. Amravati, at present
resident of Juna Dhamangaon Rly.
Tq. Chandur Rly,
Distt. Amravati.
2. Shri Bhimrao Gulabrao Khadare,
aged about 50 years,
occupation - Service,
resident of Kothora (Bk),
Tq. & Distt. Amravati. ..... Respondents.
*****
Mr. Anjan De, Adv., for the appellants.
None for the respondents.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 09th June, 2017
ORAL JUDGMENT:
01. The appellants are the original plaintiffs who had filed suit
for cancellation of sale-deed dated 19th June, 1990 which was
executed by the defendant no.1 in favour of defendant no.2.
According to the plaintiffs, the suit property was ancestral property
and that the defendant no.1 had no right to alienate the same. The
trial Court recorded a finding that a partition had taken place between
the plaintiffs' grand-father - Pralhadrao and his sons which was
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registered on 31st January, 1985. The trial Court further recorded a
finding that the suit property was ancestral property and that the
defendant no.1 did not have exclusive right to sell the same. It held
that the plaintiffs had one-fourth share each in the said property and
by the impugned judgment, it declared sale-deed dated 19th June,
1990 to be null and void to the extent of three-fourth share of the
plaintiffs. The suit accordingly was partly decreed.
02. Both the parties filed appeals. The defendants challenged
the decree in its entirety, while the plaintiffs prayed for decree in
respect of the entire suit property. The appellate Court allowed the
appeal filed by the defendants by holding that the suit property was
not ancestral property, but was the self-acquired property of the
defendant no.1. Accordingly, the judgment of the trial Court was set
aside and the suit came to be dismissed. The appeal preferred by the
plaintiffs was also dismissed. This judgment is under challenge in the
Second Appeal.
03. While admitting the appeal, the following substantial
question of law was framed:-
"Whether the lower appellate Court erred in law in
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reversing the finding recorded by the trial Court
that the suit property was a joint family property
merely on the basis of the discrepancies in the
description of the property?"
04. Shri De, the learned counsel for the appellants, submitted
that the trial Court had rightly held the sale-deed dated 19th June,
1990 to be null and void to the extent of three-fourth share of the
plaintiffs. The appellate Court, however, merely on the ground that
there was some discrepancy in the measurement of the suit property
proceeded to hold that said suit property did not belong to the
plaintiffs nor was it ancestral property. According to him, the
difference in the measurement of property as per Exhs.24, 40 and 26
was not of such a nature so as to disbelieve the case of the appellants.
Referring to paragraph 5 of the judgment of the appellate Court, it was
submitted that the finding recorded with regard to the difference in the
measurement of the suit property at Exhs.24 and 40 was incorrect and,
in fact, identical measurement had been shown. Moreover, the
dimensions of the suit property were not very seriously contested and,
therefore, the judgment of the trial Court was not liable to be set aside
on that count.
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05. There was no appearance on behalf of the respondents on
8th June, 2017 and none has appeared on their behalf even today.
With the assistance of learned counsel for the appellants, I have
perused the records and I have given consideration to his submissions.
06. According to the appellants, in the partition that took place
between Pralhadrao, the defendant no.1 and other family members on
31st January, 1985 [Exh.40], House No. 184 was allotted to the
defendant no.1. The area of said house property in Exh.40 is
mentioned as "19 feet x 30 feet." In the Index-II of the revenue
records with regard to the aforesaid partition [Exh.24], identical
measurement being 19 feet x 30 feet has been shown. It is only in the
sale-deed dated 19th June, 1990 and the Index-II extract [Exh.26] that
its measurement has been shown as "17½ feet X 37½ feet."
07. The appellate Court in para 5 of its judgment has recorded a
finding that the measurements differ from those as shown in Exhs.24
and 40. This observation is patently incorrect, inasmuch as both these
exhibits indicate identical dimensions being 19 feet X 30 feet. It is only
in Exh.26 that there is a slight variance in the dimensions. The
question is whether merely on the basis of some minor difference, can
the entire case of the plaintiffs be disbelieved? It is to be noted that if
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there was some discrepancy in the dimensions of the suit property, the
boundaries thereof are required to be considered. The same has not
been done. Similarly, defendant no.2 who purchased the suit property
has admitted in his cross-examination that he had not made any
enquiries about the suit property or its dimensions before purchasing
the same. Absence of documents pertaining to ownership of the suit
property would not be very relevant once partition dated 31st January,
1985 between the defendant no.1 and his brothers is not in dispute.
The plaintiffs have examined their uncles - Dhanraj and Subhash to
indicate the fact of partition which was followed by a public notice in
daily "Indrapuri Samachar" as per the version of PW 5. Even the
deposition of DW 1 - Chindabai is not of much assistance to the
defendant no.2 in view of the admission of defendant no.2 that the suit
property was not connected with the property of Chindabai. The
substantial question of law is accordingly answered by holding that the
lower appellate Court was not justified in reversing the finding
recorded by the trial Court that the suit property was joint family
property only by relying upon discrepancies in the description of the
suit property.
08. Findings on the aforesaid material on record are, therefore,
warranted so that the rights of the parties can be determined on that
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basis. Since findings on these aspects are absent, it would be
necessary to remand the proceedings to the appellate Court for re-
consideration of the entire evidence on record so as to facilitate proper
decision in the proceedings.
09. As a result of the aforesaid discussion, the following order is
passed:-
ORDER
[a] The appeal is partly allowed.
[b] The judgment dated 30th December, 2002 in
Regular Civil Appeal No. 28 of 1997 is quashed
and set aside.
[c] The proceedings in Regular Civil Appeal No. 28 of
1997 as well the cross-appeal preferred by the
original plaintiffs are restored. The appellate
Court shall re-consider both the appeals on their
own merits and decide the same in accordance
with law. Since the appeals are of the year 1997,
the same shall be decided expeditiously and by
the end of October, 2017.
[d] Record & Proceedings be sent to the appellate
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Court forthwith.
No costs.
Judge
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