Bombay High Court
Smt. Malabai Bhimrao Ghotal & 4 ... vs Shankarrao Raibhanji Ghotal & 2 ... on 12 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.260 OF 2003
APPELLANTS: 1. Smt. Malabai w/o Bhimrao Ghotal, aged
(Orig. Plff) about 46 years, Occupation-household
work,
(On R.A.)
2. Prafulla S/o Bhimrao Ghatol, aged
about 30 years, Occupation-student,
3. Ku. Sunita d/o Bhimrao Ghatol, aged
about 26 years, Occupation - student,
4. Atul S/o Bhimrao Ghotal, aged about 23
years, Occupation-student,
5. Rahul S/o Bhimrao Ghatolo, aged about
16 years, Occ. Student, being minor
through natural guardian appellant No.1
Malabai.
All Residents of Mozari, Tq. Tiwasa,
District - Amravati.
-VERSUS-
RESPONDENTS: 1. Shankarrao S/o Raibhanji Ghatal, aged
about 67 years, Occupation-Retired Dy.
(Orig. Defts. On
Engineer and Agriculturist, R/o at
R.A.
present Mohan Colony, Camp Road,
Amravati, Tq. & Distt. Amravati.
2. Sau. Shalini w/o Dinkarrao Bele, aged
about 42 years, Occupation-household
work and Agriculturist, R/o Mozari, Tq.
Teosa, District - Amravati.
3.
The State of Maharashtra, through
Collector, Amravati, Tah. & Distt.
Amravati.
Mrs. S. W. Deshpande, Advocate for the appellants.
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None for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 12
th JUNE, 2017.
ORAL JUDGMENT :
1. The appellants are the legal heirs of the original plaintiff
Bhimrao who had filed Regular Civil Suit No.735 of 1991 for
declaration that defendant no.2 had no right to fetch water from the well
situated in field No.230/1. The suit as filed was dismissed by the trial
Court and the appellate Court confirmed the said judgment.
2. It is the case of the original plaintiff that he had two
brothers Shankar and Sadashiv. The ancestral property was
partitioned on 13-12-1984 and in that partition 3 hectares 0.07R
from field Survey No.230/1 came to his share. The remaining land
from field Survey No.230/1 was given to the defendant no.1 and it
was renumbered as 230/2. According to the plaintiff, there was
no well in the field allotted to him and a well was constructed in
the year 1985. The defendant no.1 sold his share of Survey
No.230/2 to the defendant No.2 on 24-4-1991. In the sale deed a
right was given to defendant no.2 to fetch water from the well in
Survey No.230/1. As defendant no.2 tried to interfere with the
right of the plaintiff to the said well, the suit came to be filed
seeking aforesaid declaration.
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3. In the written statement filed by the defendant no.1 a
stand was taken that the well had been jointly constructed and he
had half share in the same. In the written statement filed by
defendant no.2 it was stated that right to fetch water was on the
basis of sale deed dated 24-4-1991 and hence, the plaintiff had no
right to restrain him from taking water.
4. After the parties led evidence, the trial Court dismissed
the suit holding that the defendant no.1 had half share in the said
well and hence, the defendant no.2 was entitled to fetch water
from the same. The appellate Court confirmed this judgment and
hence, the plaintiff has filed the present second appeal.
5. The second appeal was admitted on the following
substantial questions of law:
(1) Whether the trial Court erred in
relying on Ex.57 when the signature on it was
denied by merely comparing the signatures by
itself and holding that the document Exh.57 was
executed by the deceased brother?
(2) Whether the trial Court erred in
passing the decree on the basis of the alleged
admission contained in Ex.57?
(3) Whether lower appellate Court erred
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in relying on the document Ex.57 without
recording the finding that it was signed by the
deceased brother and whether the judgment of the
lower appellate Court is perverse?
6. Smt. S. W. Deshpande, learned Counsel for the
appellants submits that the document at Exhibit-57 which was
a communication issued to the Tahasildar referring to taking
mutation entry with regard to the well was never signed by
the original plaintiff. She submitted that the contents of
Exhibit-57 were not proved by leading any evidence and
merely because it was marked as an Exhibit it could not have
been relied upon. She submitted that this document was
brought on record on the basis of an application below
Exhibit-55 calling upon the Talathi to produce relevant
records. According to her, it was not open for the trial Court
to compare the signatures on Exhibit-57 especially when its
contents were not proved. She submitted that only on the
basis of this document the plaintiff had been non suited. She
referred to other material on record to indicate that when the
partition took place there was no well existing in field Survey
No.230/1 which fact was also admitted by the defendant no.1.
She placed reliance upon the judgment of learned Single
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Judge in Bama Kathari Patil Vs. Rohidas Arjun Madhavi and
another 2004(2) Mh.L.J.752.
7. There was no appearance on behalf of the
respondents on 9-6-2017. Today also there is no appearance
on their behalf. With the assistance of the learned Counsel for
the appellants, I have perused the record and I have given due
consideration to her submissions.
8. Perusal of record of the case indicates that initially
the original plaintiff was examined at Exhibit-38. After his
deposition, the defendant no.2 filed an application for
production of original records from the Talathi. This
application was allowed on 28-12-1993 and various
documents including an application for taking mutation
entries came to be produced. The defendant no.2 was
subsequently examined at Exhibit-81. The record indicates
that the documents produced by the Talathi came to be
marked as exhibit which included Exhibit-57. The contents of
this document at Exhibit-57 were not put to the original
plaintiff as he had already been examined. There was no
opportunity for the original plaintiff to meet the said
document. This document was exhibited as soon as it was
received from the office of the Talathi. It is well settled that
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merely marking a document as an Exhibit cannot straightway
amount to proof of its contents. Reference in that regard can
be made to the decision in Bama Kathari (supra).
9. Perusal of the judgment of the appellate Court
indicates that the appellate Court has principally on the basis
of this document proceeded to hold against the plaintiff. In
absence of the contents of Exhibit-57 being proved the
contents thereof could not have been straightway accepted.
Similarly, in these circumstances comparison of the signatures
was also not warranted. I find that the appellate Court was
not justified in relying upon this document while holding
against the appellant. Accordingly, the substantial questions
of law are answered by holding that the appellate Court was
not justified in relying upon Exhibit-57 for reasons stated
herein above.
10. It is also to be noted that it was admitted by
defendant no.1 that the well was constructed after the
partition in 1984 and it was situated in field Survey No.230/1.
All these aspects were, therefore, required to be considered in
the proper perspective. In that view of the matter, I find that
the proceedings deserve to be remanded to the appellate Court
for fresh consideration in accordance with law as it is
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necessary to have relevant findings on the aforesaid facts.
11. In the result, the judgment of the appellate Court
in Regular Civil Appeal No.300/1995 dated 22-11-2001 is
quashed and set aside. The proceedings are remanded to the
appellate Court for fresh adjudication in accordance with law.
It would be open for the appellate Court to consider the
sufficiency of evidence on record and decide the appeal in that
background.
12. As the appeal is of the year 1995, same shall be
decided expeditiously and by the end of October, 2017.
13. The record and proceedings be sent to the
appellate Court forthwith.
14. The second appeal is partly allowed in aforesaid
terms with no order as to costs.
JUDGE
/MULEY/
