Vishnu Madhav Chavan & 3 Ors vs Vitthal Nago Gedam & Anor
2017 Latest Caselaw 274 Bom

                                                 1             sa320.07.odt

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


                         SECOND APPEAL NO. 320 OF 2007


 1]         Vishnu s/o Madhav Chavan,
            aged 69 years.

 2]         Sheru Vishu Chavan
            (deleted as per Court's order)

 3]         Mahadeo Vishu Chavan,
            aged 32 years,

 4]         Ku. Parwati Vishnu Chavan,
            aged 23 years,

            All R/o. Rajur Colliery, Tq. Wani,
            District - Yavatmal                      ......              APPELLANT
                                                                       Org.Defts.

                               ...VERSUS...

 1]         Vitthal Nago Gedam (dead)
            through L.Rs

 [a]        Rukhma wd/o Vitthal Gedam,
            aged 52 years, Occ. Household,

 [b]        Lahu s/o Vitthal Gedam,
            aged 34 years, Occ. Labour

            All R/o. Nimbalam, Post : Padsoni,
            Tq. Wani, Distt. Yavatmal

 2]         Western Coal Fields Ltd.,
            through its General Manager,
            Rajur Colliery, Rajur,
            Tq. Wani, Distt. Yavatmal

 3]         Chandrashekhar Vishnu Chavan (dead)......        RESPONDENT


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 -------------------------------------------------------------------------------------------
 Shri A.S.Dhore, counsel for appellants.
 Shri S.P.Gadling, counsel for Respondent No.1
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

st DATE : 1 MARCH, 2017 .

ORAL JUDGMENT

1] The trial Court passed a decree in Regular Civil

Suit No. 13 of 1997 for possession of the suit property in

favour of the plaintiff on the basis of title conferred upon him

as per order dated 30.01.1967 passed by the Tenancy Court

in Revenue Case No. 288/59(13)/62-63. The defendants are

directed to hand over the possession of the suit property to

the plaintiff and the defendant No.6 is permanently

restrained from paying any compensation with regard to the

acquisition of land in question to the defendant Nos. 1 to 5.

In Regular Civil Appeal No. 159 of 2002, the decree is

maintained by dismissing the appeal on 05.04.2007. Hence,

the original defendants are before this Court in this second

appeal.

2] On 20.01.2009, this Court admitted the second

appeal and the following substantial question of law was

3 sa320.07.odt

framed.

Whether in 1967, in view of the vesting of title in Vithal Gedam and his sister Godabai, by virtue of sale deed executed in the year 1966, Tenancy Authorities could have declared the original plaintiff Vithal as exclusive tenant?

3] The factual position not in dispute is that, the

plaintiff along with his sister Smt. Godabai purchased the suit

property by way of registered sale deed dated 15.12.1966,

executed by one Madhukar, the original owner of the suit

property. The plaintiff claims to be the sole statutory tenant

in respect of the suit property on the basis of order dated

30.01.1967 passed in Revenue Case No. 288/59(13)/62-63.

That, there was no dispute raised regarding such ownership

conferred upon the plaintiff.

4] The plaintiff was suffering a sentence of

imprisonment for an offence of the murder of his sister Smt.

Godabai and one Smt. Pushpabai, the wife of the defendant

No.1. When he was released in the year 1988, he found

that the defendants had mutated the property in their names

and therefore, filed a suit for recovery of possession on the

basis of his title.

                                                   4             sa320.07.odt

          5]               Shri   Dhore,   the   learned   counsel   appearing   for

the appellant submits that the order dated 30.01.1967 would

be of no consequence in view of the fact that the sale deed

dated 15.12.1966 was in the joint name of the plaintiff and his

sister Smt. Godabai. He does not dispute that Smt. Godabai

was not the legally wedded wife of defendant No.1. The

legally wedded wife of defendant no.1 was one

Smt.Pushpabai. The defendant Nos. 2 to 4 claimed to be the

legal heirs of Smt. Godabai, being the sons born to Smt.

Godabai from defendant No.1. In their capacity as legal

representatives of Smt. Godabai, they tried to protect the

possession over the suit property.

6] The lower appellate Court records the finding

that the defendants have failed to establish that they are the

legal representatives of Smt. Godabai. The oral evidence of

witness Smt. Rajeshbai and of Dattu Kamble has been taken

into consideration by the lower appellate Court to record such

finding. I have gone through the copy of plaint and I do not

find any admission in the plaint that the defendants are the

legal representatives of Smt. Godabai. The burden was upon

the defendants to establish that they are the legal

5 sa320.07.odt

representatives of Smt. Godabai. The findings recorded by

the lower appellate Court that they have failed to establish

this fact is based upon appreciation of evidence led by the

defendants. Hence, no substantial question of law arises out

of such findings recorded by the lower appellant Court.

7] In view of the aforesaid findings, the question as

to whether any significance is required to be attached to the

registered sale deed dated 15.12.1966 showing joint

purchase by the plaintiff and Smt. Godabai does not at all

arise. The substantial question of law framed by this Court

does not arise for consideration. Hence, the second appeal

is dismissed.

JUDGE

Rvjalit