Devidas Pundlik Mahure vs Shankar Pundlik Mahure & Anor
2017 Latest Caselaw 3277 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                             FIRST APPEAL NO.31 OF 2008



Devidas Pundlik Mahore 
Age : major, Resident of Khubgaon, 
Tahsil, Arvi, Dist. Wardha                                      ... Appellant

-vs-

1.  Shankar s/o Pundlik Mahore,
     Age : major, Resident of Khubgaon, 
     Tahsil, Arvi, Dist. Wardha 

2.  Kisan Pundlik Mahore
     Age major, Resident of Quarter 
     No.62/C Type 3, Sector-3, 
     Ordinance Factory, Chanda Colony, 
     Tah. Bhadrawati, Dist. Chandrapur.                         ... Respondents. 


Shri S. D. Chopde, Advocate for appellant. 
Shri Deven S. Lambat, Advocate h/f Shri S. N. Chinchghare, Advocate for 
respondent No.1. 


                CORAM   :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JUNE 16, 2017

Oral Judgment :

In a reference made by the Special Land Acquisition Officer under

Section 30 of the Land Acquisition Act, 1894, it was held by the Civil Judge

(S.D.) Wardha, by his impugned judgment and order dated 24/10/2007,

passed in LAC No.240/2006 that Shankar-respondent No.1 was alone

entitled to receive the entire amount of compensation towards the land

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acquired by the SLAO. Hence being aggrieved, by the said judgment and

order, his brother, Devidas has preferred this appeal.

2. Facts of the appeal can be briefly stated as follows :

Land admeasurig 2.80 H out of Survey No. 104 situate at Mouza

Hashimpur, Tahsil Arvi has been acquired for Lower Wardha Project in LAC

No.97/LQ/47/97-48. As per the revenue record, said survey number was

standing in the name of three brothers viz. Shankar, Devidas and Kisan who

are the appellant and respondent Nos.1 and 2 in the case. As Shankar was

claiming exclusive right to get the entire amount of compensation, reference

was made by SLAO before the trial Court.

3. According to respondent No.1-Shankar, his maternal grandfather

viz. Ganpat Yadaorao Talhande R/o Sahur had adopted him in the year 1960

by virtue of registered adoption deed. After the death of Ganpat his property

at Sahur was sold and Survey No.104 at Hashimpur was purchased in the

name of Shankar, by registered sale-deed dated 15/03/1963. At that time

his maternal grandmother Akolabai acted as his guardian. After the death of

Akolabai in 1972, his natural father Pandurang Mahore added the names of

Shankar and Kisan also in 7/12 extract of the said land. According to

Shankar, he being adopted son of Ganpat and Akolabai, he had become the

sole owner of the said land and therefore entitled to receive the entire

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amount of compensation.

4. Whereas according to the appellant Devidas, on the basis of the

Will executed by his maternal grandmother Akolabai, the entries were made

in revenue record in 1972 itself in the name of all the three brothers viz.

Shankar, Devidas and Kisan and therefore all the three brothers should

equally get 1/3rd amount of compensation.

As regards respondent No.2 Kisan, he had filed pursis vide

Exhibit-6 before the Reference Court informing that he has no objection for

giving entire amount of compensation to Shankar.

5. On the basis of the pleadings of the appellant and respondent

No.1, the Reference Court framed necessary issues for its consideration. In

support of his case, respondent No.1 examined himself and his sister,

namely, Sulochana Virkhede whereas appellant-Devidas also examined

himself. On appreciation of their evidence, the Reference Court was pleased

to hold that, in view of registered adoption deed produced on record at

Exhibit-19, it has to be held that respondent No.1 Shankar is the exclusive

owner of the suit land and hence entitled to get entire amount of

compensation.

6. While challenging the judgment of the Reference Court, learned

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counsel for the appellant has submitted that the alleged adoption deed at

Exhibit-19 itself was found in the year 2005. Moreover, the said adoption

deed was never acted upon and respondent No.1 continued to be treated as

the son of his natural father Pundlik Mahore. It is submitted that the entries

in the revenue record clearly go to show that the land was mutated, after the

death of Akolabai, in the name of three brothers, on the basis of the Will

executed by her on 12/09/1966. Thus it is submitted that the learned

Reference Court has ignored this material evidence. Hence according to the

learned counsel for appellant, the impugned judgment and order passed by

the Reference Court needs to be quashed and set aside.

Per contra, learned counsel for respondent No.1 has supported the

impugned judgment and order for the reasons given by the Reference Court,

in its judgment.

7. In this case, the registered adoption deed is produced on record at

Exhibit-19 which shows that in the year 1960 itself respondent No.1 was

adopted by his grandfather Ganpat Tadaorao Talhande. Evidence of

respondent No.1 further shows that his grandfather Ganpat has sold his

property at Sahur and thereafter purchased the land, which is subsequently

acquired by the Spl. Land Acquisition Officer. The registered sale-deed dated

15/03/1963 of the acquired land also shows that the said land was

purchased in the exclusive name of respondent No.1 Shankar and Ganpat's

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wife Akolabai was shown as guardian of Shankar. It may be true that this

adoption deed was found by respondent No.1 Shankar in the year 2005.

However considering the fact that at the time of adoption he was below the

age of ten years it cannot be said that he has fabricated the said document.

8. Moreover, if no such adoption had taken place, there was no

reason for Akolabai, wife of Ganpat to purchase the land in the name of

respondent No.1 Shankar. She could have purchased it in her own name.

Moreover if she wished to give the said land to appellant and other brother,

she would have purchased it in the names of all the three brothers.

However, the very fact that Akolabai purchased the land in question in the

name of respondent No.1 Shankar alone goes to prove that shankar was duly

adopted by Akolabai and heer husband Ganpat and that was the reason why

the land was purchased by registered sale-deed in the name of Shankar.

9. It is true that after the death of Akolabai in 1972, father of

appellant and respondents got the said land mutated in the names of

appellant and respondents and it was done on the basis of Will alleged to be

executed by Akolabai on 12/09/1963. However, the said Will is not

produced on record at all. The law is well settled that mere entries of names

in the revenue record, even for several years together do not confer the title

on the persons whose names are appearing in the revenue record. The

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entires in revenue record can, at the most may give rise to presumption as to

possession but not as to the ownership or title. In the absence of alleged

Will dated 12/09/1963 executed by Akolabai, the entries in the revenue

record in the name of appellant and respondent Nos.1 and 2 cannot confer

any right or title on the appellant or respondent No.2 in respect of this land.

Therefore in my considered opinion, the Reference Court has rightly

considered that respondent No.1 Shankar alone is the exclusive owner of

land acquired by the Spl. LAO and he is entitled to get the entire amount of

compensation.

10. As regards the dispute raised by learned counsel for appellant

relating to identification of the land, perusal of paragraph 9 of the judgment

of the Reference Court reveals that Reference Court has considered this

aspect also and found that except for the land acquired in the case, no other

land was found to be purchased by Akolabai and therefore there remains no

question relating to identification of the land acquired.

11. To sum up therefore, the appeal holds no merits and hence needs

to be dismissed and accordingly stands dismissed with no order as to costs.

JUDGE

Asmita