Asrabai Gorakhnath Dighe vs Ravindra Punjahari Narwade And ...
2017 Latest Caselaw 947 Bom

                                    1        SA- 203-2016-JUDGMENT


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        SECOND APPEAL NO. 203 OF 2016

Asrabai Gorakhnath Dighe
Age : 70 years, Occu. Nil,
R/o : Wadala Bahiroba,
Tq. Newasa, Dist. Ahmednagar                         .. Appellant
                                                   (Orig. Plaintiff)

     VS.

1] Ravindra S/o Punjahari Narwade
   Age : 41 years, Occu.: Doctor,

2] Sau. Apurna W/o Ravindra Narwade
   Age : 36 years, Occu. Doctor,

     Both R/o : Wadala Bahiroba,
     Tq. Newasa, Dist. Ahmednagar

3] Appasaheb S/o Bhanudas Mote,
   Age : 40 years, Occu.: Agri.,
   R/o : Wadala Bahiroba,
   Tq. Newasa, Dist. Ahmednagar                   .. Respondents
                                                 (Orig. Defendants)

                                 ----
Mr. D.G. Nagode, Advocate for appellant
Mr. V.H. Dighe, Advocate h/f Mr. D.R. Kale, Advocate for respondents
                                 ----

                                  CORAM : SUNIL P. DESHMUKH, J.

DATE : 22-03-2017

ORAL JUDGMENT :

1. The second appeal takes exception to reversal of decree

of injunction granted in favour of plaintiff by the appellate court.

2. Suit property bearing plot no. 47 city survey no.89

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situated at village Wadala Bahiroba, Tq. Newasa, Dist. Ahmednagar

had been granted to deceased Gorakhnath Dighe in 1970 by the

state government under the document referred to as 'Kabulayat'.

Gorakhnath accordingly had been placed in possession of aforesaid

property. He died in the year 1998.

3. Gorakhnath had executed registered sale deed of the

aforesaid property in favour of Vilas Shende on 19-05-1980.

Pursuant to the same, revenue record had taken entry of said

transaction and, accordingly, property was being shown in the name

of said Vilas Shende. Vilas Shende is stated to have carried out

some construction over said property. Said Vilas Shende had later

parted with aforesaid property in favour of Mr. Solaman Kamble on

25-03-1987 under registered sale deed. Since then, revenue record

started bearing name of said Solaman Kamble. Subsequently,

Solaman Kamble dealt with suit property under the registered sale

deed dated 19-01-2000 in favour of respondents no. 1 and 2,

namely, Mr. Ravindra Punjahari Narwade and Sau. Apurna W/o

Ravindra Narwade. Thereafter, in December, 2001, present

appellant instituted regular civil suit no. 531 of 2000 seeking

permanent injunction against said Narwades.

4. The case of the plaintiff is, the grant of suit property by

government to Gorakhnath Dighe - her husband, had been

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inalienable without previous permission of the government. Yet, the

property had been dealt with and, as such, transaction entered into

by deceased Gorakhnath being illegal and void, no right or title

accrues to the purchaser from him and thus the transactions are not

legal and do not transfer title to them. It is claimed by plaintiff, she

has been in continuous possession of the suit property since date of

grant to deceased Gorakhnath. The property after grant, had been

constructed over by her husband, as such, she continues to be in

possession accordingly. The sale deeds executed had not disturbed

her possession till 2001. Since disturbance to possession had been

caused in 2001, the suit for injunction had been instituted.

5. The defendants present respondents no.1 and 2 denied

all the averments and allegations. It is the case of the defendants

that Gorakhnath was exclusive owner and possessor and title holder

of suit property and had been within his right while he dealt with the

property in favour of Vilas Shende in 1980. While suit land had been

sold by Gorakhnath during his lifetime to Vilas Shende, the same

had been open land. After purchase of suit land by Vilas Shende, he

had carried on construction over the same and had been residing

there till he had sold suit land to Solaman Kamble in 1987. Since

1987, it is Solaman Kamble, who had purchased property under

registered sale deed, had been in possession of the property.

Thereafter, said Solaman Kamble under registered sale deed had

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parted with suit property in favour of the defendants no.1 and 2 -

present respondents and, accordingly, the defendants are in

possession.

6. Revenue record all along from time to time since 1980

onwards uninterruptedly is in favour of the purchasers. The plaintiff

has not been in possession of the property at any time after the

registered sale deed had been executed in favour of Vilas Shende on

19-05-1980. It is averred that the sale deed executed by

Gorakhnath is binding on the plaintiff who is wife of Gorakhnath.

She has no right to challenge the transactions and the suit is not

maintainable.

7. The trial court framed points as to whether plaintiff

proves to be in lawful possession of suit property; whether

defendants have obstructed her possession; whether defendant no.1

proves to be purchaser and owner of suit property and as to whether

the plaintiff is entitled for injunction.

8. The trial court considered that plaintiff has been in

possession of suit property and there had been disturbance caused

to her possession and that defendant no.1 could not prove to have

become owner under sale deed and is in possession. The trial court

considered that the material question that would arise, as to

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whether Gorakhnath - husband of plaintiff had right to dispose of

the property pursuant to conditions under document considered as

Kabulayat at exhibit 42, since said document refers to that

Maharashtra Land Revenue Code is applicable, and that as per the

conditions in Kabulayat, Gorakhnath ought not use the property or

permit it to be used other than for building and could not, without

previous sanction of the collector, transfer the property to third

person.

9. The trial court considered that Kabulayat does not confer

exclusive right, title and interest in suit property to Gorakhnath and

he had no power to dispose of suit property to third person. Since

Gorakhnath was not absolute title holder, the purchasers from him

and the subsequent purchasers did not get title to suit property.

10. Incidentally, the trial court had also referred to that

defendants have relied on city survey extracts, gram panchayat

house extracts and tax receipts to show their ownership.

Documents exhibits 50 to 63 and exhibits - 76 to 102 depict that

transactions having taken place between Gorakhnath and Vilas

Shende, thereafter, Vilas Shende and Solaman Kamble and,

thereafter, Solaman Kamble with present respondents and that none

of the parties to these transactions had ever approached the

collector seeking permission. It has also been referred to that

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previous transaction holders were examined by the defendants.

11. Thereafter, the trial court went on to consider as to who

is lawful possessor of suit property. While the plaintiff claims to be

in lawful possession of the suit property, to support her case, she

had adduced evidence through one Vishwanath Mote, who had in his

deposition stated that plaintiff is in possession of the suit property.

Thus, the trial court considered that though the defendants have

filed on record city survey extracts, gram panchayat house extract

and tax receipt, yet, the documents under which the defendants

claim to be owners and in possession, were not valid. The

defendants have no right to claim suit property. Accordingly, the

suit was decreed.

12. In the appeal therefrom at the instance of the

defendants, the appellate court had framed points for consideration,

as to whether plaintiff proves to be in lawful possession and whether

she is entitled to relief of perpetual injunction, whether defendants

are entitled to proceed with appeal since it appears that defendants

had parted with suit property during pendency of the appeal.

13. The appellate court has appreciated that, after the

Kabulayat dated 04-11-1970 had been issued referring to restriction

on transfer of property that it would be with previous sanction of the

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Government, a Sanad came to be issued in 1985. The Sanad had

removed said restriction and had declared that the interest in the

property being alienable and has reproduced in judgment relevant

extract from the Sanad. Appellate court has found that the

transactions entered into thus far in respect of the property would

not be liable to be faulted with.

14. Appellate court then went on to discuss evidence with

regard to possession. The appellate court found that the

transactions were duly proved by the defendants and that

contemporaneous revenue and documentary record supports the

case of the defendants about them being in possession and since

1980, Gorakhnath or for that matter, the plaintiff could not lay claim

to possession.

15. Learned counsel for the appellant Mr. Nagode

vehemently submits that while the trial court has properly

considered that grant of property being inalienable without

permission, the reversal of said finding by the appellate court, is not

sustainable. He purports to contend that document of 1985 being

relied upon, may not be relatable to suit property.

16. Learned counsel Mr. Nagode submits that while on

evidence, the trial court has found the plaintiff to be in lawful

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possession, she being wife of deceased Gorakhnath, and has further

found that for the breach of the condition contained in Kabulayat of

1970, no title can ever flow to subsequent purchasers and thus the

claim of their possession would not be legal. In the circumstances,

reversal of findings with regard to possession for the considerations

which have weighed with the appellate court, would be

unsustainable.

17. Mr. Dighe, learned counsel appearing for the respondents

has pointed out that both the documents, the one of 1970 and the

other of 1985, have been produced by the plaintiff and that they

relate to the very same property.

18. Learned counsel Mr. Dighe submits that in the suit

simplicitor for injunction, what is relevant is the possession of the

parties rather than any other consideration. Apart from aforesaid,

he submits that it cannot be said that the respondents do not

possess any title having regard to that subsequently in respect of

very same property, alienations are allowed without permission. The

alienations being permitted, the alienation of Gorakhnath in favour

of Vilas Shende had become regular and subsequent alienations

were not restricted at all. In the circumstances, it cannot be said

that the defendants do not hold any legal title over suit property. He

submits that there is sufficient evidence on record oral as well as

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documentary showing defendants to be in possession. He submits

that Vilas Shende, Solaman Kamble and the defendants have been

concurrently and consistently in their depositions showing that the

defendants are in possession. Correspondingly, there is documentary

evidence showing defendants' possession and that they have been

paying the land revenue accordingly.

19. Having heard learned counsel as aforesaid, the question

that may fall for consideration in the matter is,

" Whether the appellate court had committed any error, in

reversing the findings given by the trial court with

respect to possession of suit property and dismissing

the suit for injunction by the plaintiff ? "

20. It clearly emerges that in 1980, Gorakhnath had parted

with suit property under registered sale deed in favour of Vilas

Shende who had accordingly been put in possession. Revenue

record had taken note of the same and mutation pursuant to the

transaction had been carried out. Thereafter, Vilas Shende had

carried on construction over suit property and had been residing

there. He had parted with suit property alongwith construction in

favour of Solaman Kamble in 1987 under a registered sale deed.

Revenue record had been mutated accordingly.

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21. Since 1980 to 1998, Gorakhnath had not objected at all

to the transactions by Vilas Shende, Solaman Kamble nor had he

claimed to be in possession. After death of Gorakhnath, it appears

that even Solaman Kamble had parted with property under

registered sale deed in favour of present respondents and present

respondents were put in possession and revenue record accordingly

came to be mutated. It is thereafter, the plaintiff purported to stake

claim to be in possession of suit property. It further appears that

save and except evidence of Vishwanath Mote, there is no other

evidence supporting plaintiff's case about possession over suit

property.

22. So far as legality of title to the property is concerned, in

the matters of injunction, although it is being contended on behalf of

the respective parties that they have led evidence, yet, what is

germane for consideration, is possession of the property.

23. It emerges that there is indeed overwhelming evidence

showing the defendants to be in possession of the suit property

which is oral as well as documentary. While the plaintiff has not

been in a position to adduce any documentary evidence to reinforce

her contention about being in possession, Gorakhnath during his

lifetime, had not challenged the transactions nor had at any time

objected to changes in revenue record correspondingly taking place.

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After death of Gorakhnath, the suit is filed, and, evidence by the

plaintiff about her possession does not inspire any confidence.

24. In the circumstances, her entitlement to injunction has

rendered very bleak and appears to have been properly adjudged by

the appellate court and, as such, the second appeal does not

deserve any further consideration and stands dismissed and the

substantial question posed, stands answered accordingly.

25. Consequently, civil application no. 2930 of 2016 pending

in this appeal, stands disposed of.

[SUNIL P. DESHMUKH] JUDGE arp/