Bombay High Court
Bala Laxman Dahare & 5 Ors vs Pandhari Pama Ghormode & Ors on 15 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 330 of 2002
1. Bala son of Laxman Dahare,
aged about 44 years,
cultivator,
2. Gurudas son of Laxman Dahare,
aged about 34 years,
cultivator,
3. Smt. Parbata widow of Laxman Dahare,
aged about 69 years,
4. Prabhakar son of Sadashiv Dahare,
aged about 29 years,
cultivator,
5. Gangadhar son of Sadashiv Dahare,
aged about 18 years,
student,
6. Smt. Barasabai widow of Sadashiv
Dahare,
aged 52 years,
cultivator,
all residents of Mandangaon,
Post Mandvi, Tq. & Distt.
Bhandara. ..... Appellants.
Org. Defendants.
Versus
1. Pandhari son of Pama Ghormode,
aged about 44 years,
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2. Murlidhar son of Pama Ghormode,
aged about 34 years,
3. Vishnu son of Pama Ghormode,
aged about 29 years,
4. Kashinath son of Pama Ghormode,
aged about 39 years,
all cultivators,
nos. 1 to 3 residents of
Mandangaon, Post - Mandvi,
no.4 resident of Khamari Buti,
Pot Matora,
Tq. & Distt. Bhandara. ..... Respondents.
Org. Plaintiffs.
*****
Mr. S. W. Sambre, Adv., for the appellants.
Mr. Amol Mardikar, Adv., for respondent nos. 1 to 4.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 15th June, 2017
ORAL JUDGMENT:
01. This appeal is by the original defendants who are aggrieved
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by the decree for possession passed by the trial Court which has been
affirmed by the appellate Court in the suit filed on behalf of
respondents.
02. Brief facts are that one Bhaskar Naik was the owner of Gat
No. 164 which admeasured 3 hectares 40 Are. From this land, 1
hectare 62 Are was sold to one Laxman Dahare. The remaining land
being 1 hectare 78 Are was in the cultivating possession of Bhaskar
Naik. Same was given for cultivation to the father of the plaintiffs. As
Bhaskar was in need of money, he sold land admeasuring 1 hectare 78
Are by various sale-deeds in favour of the plaintiffs. These sale-deeds
are dated 18th February, 1994. There was a dispute between the
parties with regard to possession. Hence, the plaintiffs filed suit for
possession of field Gat No. 164/2 on the basis of title.
03. The defendants filed their Written Statement and denied the
case of the plaintiffs. It was pleaded that they had purchased 1
hectare 62 Are land from Bhaskar while the remaining land was shown
in the name of one Govindrao Hirde in the revenue records. This
Govindrao Hirde was the nephew of Bhaskar. It was further pleaded
that during pendency of proceedings, for declaring Sadashiv as tenant
of field Gat No. 164/2, tenancy proceedings had been filed and the
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same were pending. It was, therefore, pleaded that as the defendants
were in long-standing possession, the plaintiffs had no title to the suit
property.
04. After the parties led evidence, the trial Court held that the
plaintiffs had proved their title on the basis of sale-deeds at Exh.78 to
81. It was found that the defendants were in possession and that they
were owners of field Gat No. 164/1. Hence, on the basis of their title, it
was held that the plaintiffs were owners of the suit property and were
entitled for possession. The suit accordingly was decreed.
The appellate Court on re-appreciating the evidence
affirmed the findings of the trial Court and dismissed the appeal.
05. The following substantial questions of law were framed while
admitting the Second Appeal:-
"[A] Whether the Courts below were right in placing
a reliance on the revenue record while coming
to the conclusion that the land in dispute was
gifted by Govindrao to Bhaskar, when the gift-
deed, which would have been available, was
not produced in the Court?
[B] Whether the Appellate Court was right in
finding that Bhaskar was the only legal heir of
Govindrao, when the plaintiffs did not claim
title on that basis?
[C] When the Appellate Court was not satisfied
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with the evidence on record in respect of the
title of the plaintiffs to the suit land, whether
the Appellate Court was right in casting the
burden of proving the title on the defendants,
when they have been in a long continued
possession for over 75 years and could claim
possessory title?
[D] Whether the plaintiffs have established
satisfactorily their title to the suit land?"
06. Shri S. W. Sambre, learned counsel for the appellants,
submitted that the title of the plaintiffs had not been duly proved,
inasmuch as the title of the vendor - Bhaskar was itself not proved. He
submitted that the Gift-Deed executed by Govindrao in favour of
Bhaskar was not brought on record and, therefore, it could not be said
that Bhaskar had title in the suit property. Merely by proving the sale-
deeds at Exhs.78 to 81, the plaintiffs were not entitled for possession.
On the contrary, it was the defendants who were in possession for a
long time and, therefore, they had better title than that of the
plaintiffs. This fact was further evident from the fact that Survey No.
164/1 had been purchased by Sadashiv in the tenancy proceedings. It
was, therefore, submitted that both the Courts without the title of the
plaintiffs being proved held in their favour.
07. Shri Amol Mardikar, learned counsel for the respondents,
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supported the impugned judgments. He referred to the pleadings in
the Written Statement to urge that it had been specifically pleaded
that Govindrao had given the suit land to Bhaskar for taking benefit of
sowing crops. He submitted that the title of the plaintiffs had been
proved by virtue of sale-deeds at Exhs. 78 to 81 and, therefore, the
plaintiffs had better title than the defendants . The ownership of
Bhaskar was not seriously challenged and, therefore, absence of the
Gift-Deed on record was not very relevant. He, therefore, submitted
that both the Courts have rightly held in favour of the plaintiffs.
08. With the assistance of learned counsel for the parties, I
have perused the records of the case and I have given due
consideration to their respective submissions.
09. It can be seen from the record that the original owner of Gat
No. 164 was one Bhaskar Naik. 1 hectare 62 Are had been sold in the
tenancy proceedings to the defendants. This land was numbered as
Survey No. 164/1. In so far as the remaining land is concerned, it is
the case of the plaintiffs that Govindrao did not have any legal heirs
and, therefore, it was being looked after by Bhaskar. The defendants
in their Written Statement in para 12 have averred that Bhaskar was
the relative of Govindrao and hence Govindrao had given the suit land
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to him for taking benefit of crops. From the aforesaid pleadings,
therefore, it can be seen that the relationship of Govindrao and
Bhaskar was evident and that Govindrao had given the suit land to
Bhaskar.
10. The plaintiffs claimed that as Bhaskar was in need of money,
the suit land was sold to them on 18th February, 1994. The sale-deeds
have been duly proved by examining PW 3 - Sulbha Naik at Exh.90.
She was a signatory as an attesting witness to the aforesaid sale-
deeds which are at Exhs.78 to 81. She deposed about the Gift-Deed
being executed by Govindrao in favour of her husband and this
assertion has not been seriously challenged in her cross-examination.
In the light of pleadings of the parties and the evidence led by them, it
cannot be said that failure on the part of the plaintiffs in bringing on
record the Gift-Deed executed by Govindrao in favour of Bhaskar
would be fatal to the case of the plaintiffs. As stated above, the
defendants had also pleaded about the relationship of Govindrao and
Bhaskar and that Bhaskar had been put in possession by Govindrao.
Accordingly, substantial question of law at Sr. No.A is answered against
the appellants.
11. In so far as Govindrao being survived by any legal heirs is
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concerned, it is the case of the plaintiffs that he did not have any legal
heirs and, therefore, the lands were given to his nephew - Bhaskar.
This fact is deposed again by PW 3 and this assertion is again not
challenged by the defendants. Considering the nature of evidence on
record, I do not find that the appellate Court committed any error in
holding that Bhaskarrao claimed as nephew of Govindrao. Said finding
does not deserve to be interfered with. Substantial question of law at
Sr. No. B stands answered accordingly.
12. On perusal of the judgment of the appellate Court, it cannot
be said that the appellate Court was not satisfied with the title of the
plaintiffs. The discussion in that regard can be found in para 7 of the
judgment of the trial Court and in paras 16 to 19 of the appellate
Court's judgment. The mutation entries at Exhs.82 and 83 also
support the case of the plaintiffs. Though the defendants were in long-
standing possession of the suit property, they had become owners only
of land admeasuring 1 hectare 62 Are from Gat No. 164/1. They had
no title to the suit property. As the plaintiffs have better title in the
form of sale-deeds at Exhs.78 to 81 than the defendants, they have
rightly been granted relief. Accordingly, substantial questions of law
at Sr. Nos. C and D are also answered against the appellants.
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13. In view of aforesaid discussion, I do not find any error
committed by the Courts below to interfere with the decree for
possession passed by the trial Court and confirmed by the appellate
Court. Second Appeal is accordingly dismissed with no order as to
costs.
Judge
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