Naryanrao Amrutrao Zingade vs Devidas Sheshrao Thete
2017 Latest Caselaw 760 Bom

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

                  Second Appeal No.229 of 2004

  Narayanrao s/o Amrutrao Zingade,
  Aged about 73 years,
  R/o Amravati, Distt. Amravati.                 ... Appellant

       Versus

  Devidas s/o Sheshrao Thete,
  through his LRs.:

  1(A) Gajanan Devidas Thete,
       Aged about 36 years,
       R/o Bhagya Nagar, 
       Pusad, Tah. Pusad,
       Distt. Yavatmal.

  1(B) Sushant Devidas Thete,
       Aged about 34 years,
       R/o Bhagya Nagar,
       Pusad, Tah. Pusad, 
       Distt. Yavatmal.

  1(C) Bharti w/o Jagannath Lonkar,
       Aged about 30 years,
       Resident of C/o Smt. Annapurna
       wd/o Devidas Thete,
       R/o Bhagya Nagar, Pusad,
       Tah. Pusad, Distt. Yavatmal.

  1(D) Ashwini w/o Pramod Khadse,
       Aged about 28 years,
       Resident of Satefal,
       Tal. Chandur-Railway,
       Distt. Amravati.




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  1(E) Smt. Annapurna wd/o Devidas 
       Thete,
       R/o Bhagya Nagar, Pusad,
       Tah. Pusad, Distt. Yavatmal.                     ... Respondents


  Shri S.V. Sohoni, Advocate for Appellant/Original Plaintiff.
  None for LRs. of Original Defendant (Respondents).


                Coram : R.K. Deshpande, J.

th Dated : 16 March, 2017

Oral Judgment :

1. Heard Shri Sohoni, the learned counsel for the

appellant. None appears for the respondents.

2. The Trial Court dismissed Special Civil Suit No.14 of

1995 for possession of the suit property on the basis of title and

also for rendition of accounts, on 5-9-2000. The lower Appellate

Court also dismissed Regular Civil Appeal No.43 of 2000 on

8-12-2003. Hence, this second appeal against the concurrent

findings of fact recorded by the Courts below.

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3. On earlier occasion, the second appeal was dismissed in

motion-hearing on 7-4-2005. Subsequently, the learned Judge,

who dismissed the appeal (Shri K.J. Rohee, J.), allowed Review

Application No.692 of 2006 by speaking order, which is

reproduced below :

" Heard Mr. S.V. Sohoni, Advocate for the applicant (hereinafter referred to as "the plaintiff for the sake of convenience) and Mr. S.T. Harkare, Advocate for the non-applicant (hereinafter referred to as "the defendant").

2. The plaintiff is the maternal uncle of the defendant. The plaintiff instituted a suit for possession of a plot as well as machineries and for partnership account and recovery of partnership share. It is the case of the plaintiff that he had purchased the said plot as well as machinery in his name out of his own funds and gave the same to the defendant in pursuance of the partnership. Lateron since the defendant failed to deliver back possession, the plaintiff was required to institute the suit.

3. The defendant admitted that the sale deed of the plot is in the name of the plaintiff. However, he raised a defence that the funds for the purchase of the plot were provided by him and merely the sale deed was obtained in the name of the plaintiff. Thus the defendant is the real owner of the plot, the plaintiff being Benamidar.

4. From the above pleadings, it may be seen that the burden of proving title to the suit plot heavily rested on the defendant because the sale deed admittedly stood in the name of the plaintiff. However, the trial Court placed the

sa229.04.odt

entire burden on the plaintiff and did not frame any issue laying the burden on the defendant. The same error was repeated by the first appellate Court.

5. The second appeal preferred by the plaintiff came to be dismissed in limine without considering the aspect of wrong placement of burden of proof on the plaintiff. Hence I think it expedient to review the order of dismissal of the second appeal.

6. Consequently the review application is allowed and the appeal is restored to file."

4. The second appeal was admitted on 11-7-2007, framing

the substantial questions of law as under :

" Heard the learned counsel for the parties.

Second appeal is admitted on the following substantial questions of law:

(1) Whether the Courts were justified in casting the burden on the plaintiff to show that he was the owner of the plot when the defendant had admitted that the plot was purchased in the name of the plaintiff?

(2) Whether it was necessary for the defendant to prove that the defendant was the real owner of the plot and the plaintiff was the benamidar?

(3) Whether the suit filed by the plaintiff could have been dismissed mainly on the ground that the plaintiff had

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failed to produce the sale deed on record when the defendant did not deny that the suit property was purchased in the name of the plaintiff by a registered sale deed?"

5. It is not in dispute that the sale-deed in respect of the

suit property is in the name of the plaintiff. The burden,

therefore, shifted upon the defendant, who claimed that the suit

property was purchased by him with his own funds in the name

of the plaintiff, which was the stand taken in the written

statement. The Courts below have framed an issue as to whether

the plaintiff has established that he purchased the suit property

with his own funds. However, there was no issue framed as to

whether the defendant has established that the suit property was

purchased with his own funds in the name of the plaintiff and

that the plaintiff was Benamidar. Obviously, when the fact that

the sale-deed in respect of the suit property stood in the name of

the plaintiff was not disputed, the question of producing the

sale-deed on record did not arise.

6. In view of the aforesaid factual position, it has to be held

sa229.04.odt

that the Courts below were not justified in casting the burden on

the plaintiff to show that he was the owner of the suit property,

and for non-production of the sale-deed, the plaintiff has failed to

establish his title over the suit property. It was the stand of the

defendant that he was the real owner of the suit property and the

plaintiff was Benamidar. Hence, the issue ought to have been

framed by the Trial Court casting the burden upon the defendant

to prove this fact. Since neither the Trial Court framed the issue

nor the lower Appellate Court framed the point for

determination, the matter will have to be remitted back to the

Trial Court for framing such an issue so that the defendant gets

an opportunity to establish his claim by leading evidence. The

substantial questions of law are, therefore, answered accordingly.

7. In the result, the second appeal is allowed. The

judgment and decree dated 5-9-2000 passed by the Trial Court in

Special Civil Suit No.14 of 1995 as well as the judgment and

order dated 8-12-2003 passed by the lower Appellate Court in

Regular Civil Appeal No.43 of 2000, are hereby quashed and set

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aside. The matter is remitted back to the Trial Court to frame an

issue as to whether the defendant has proved that he was the real

owner of the suit property, that he purchased it with his own

funds, and that the plaintiff was Benamidar.

The Trial Court to decide the suit afresh after re-framing

the issue and by providing an opportunity to the parties to lead

evidence in support of their case.

The plaintiff to appear before the Trial Court on

17-4-2017.

The Trial Court to decide the matter within a period of

eight months from the date of first appearance of all the parties

before it.

R & P be sent back to the Trial Court.

JUDGE.

Lanjewar