Bombay High Court
Arjun Sakharam Raut And 2 Others vs Baban Laxman Raut on 21 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.284 OF 2004
APPELLANTS: 1. Arjun Sakharam Raut,
(Ori.Plffs.)
2. Zamarbai w/o Mahadu Bhagat,
3. Geetabai W/o Nathu Surve,
All R/o Tornala Tq. & Dist. Washim.
(On R.A.)
-VERSUS-
RESPONDENT: Baban S/o Laxman Raut, Aged about 35
(Ori. Deft.) years, Occ: Cultivator, R/o Village
Tornala, Tq. & Dist. Washim.
AND
SECOND APPEAL NO.290 OF 2004
APPELLANTS: 1. Arjun Sakharam Raut,
(Ori.Plffs.)
2. Zamarbai w/o Mahadu Bhagat,
3. Geetabai W/o Nathu Surve,
All R/o Tornala Tq. & Dist. Washim.
(On R.A.)
-VERSUS-
RESPONDENT: Baban S/o Laxman Raut, Aged about 35
(Ori. Deft.) years, Occ: Cultivator, R/o Village
Tornala, Tq. & Dist. Washim.
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Shri S. R. Deshpande, Advocate for the appellants.
Shri M. B. Joshi, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 21, 2017.
ORAL JUDGMENT :
1. Since both these appeals arise out of common
judgment of the first appellate Court, they are being decided by
this common judgment.
2. The facts in brief that are relevant for deciding the
appeals are that there were three brothers Sakharam, Nivrutti and
Laxman. These three brothers constituted a joint family. On
12-3-1952 Survey No.14/2 came to be purchased by joint family.
Thereafter on 1-1-1957, Gat No.8 came to be purchased by two
brothers Sakharam and Nivrutti. In the year 1959, there was a
partition in the family and Gut No.14/2 was divided into three
equal shares, one share each being given to each brother. Nivrutti
expired in the year 1961. He had no issues. According to the
elder brother Sakharam, said Nivrutti relinquished his share from
the property in Gat No.8 in his favour. On that basis Sakharam
continued in possession of Gat no.8. Said Sakharam expired in the
year 1991. His son Arjuna thereafter came into possession and
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according to him, he was forcibly dispossessed by the son of
Laxman - Baban. This dispossession was with regard to 30
Gunthas land. Said Arjuna, therefore, filed suit for perpetual
injunction which was subsequently amended by adding the prayer
for possession in respect of 30 Gunthas land. Said suit was
numbered as Regular Civil Suit No.213/1995.
3. The two sons of Laxman, Baban and Bhaskar filed
Regular Civil Suit No.88/1997 for partition and separate
possession of Gat No.30 on the count that the same was joint
family property. According to them, they had 1/3rd share in the
suit property as well as equal share in the share of the deceased
brother - Nivrutti.
4. Both the suits were consolidated. After the parties led
evidence, the trial Court held that it was not proved that Gut No.8
was joint family property. It was held that Nivrutti had
relinquished his share in respect of said property in favour of
Sakharam and Sakharam was the owner of the same. Accordingly,
Regular Civil Suit No.213/1995 was decreed by directing the
defendants therein to hand over possession of 30 Gunthas land to
the plaintiff. Regular Civil Suit No.88/1997 for partition and
separate possession came to be dismissed.
Two appeals came to be filed by the sons of Laxman.
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The appellate Court by the impugned judgment partly allowed
both the appeals. The suit for possession being Regular Civil Suit
No.213/1995 was dismissed and a decree for partition in Regular
Civil Suit No.88/1997 came to be passed. Being aggrieved, the
present appeals have been filed.
5. The following substantial questions of law were
framed while admitting the appeals:
Whether Gat No.8 can be said to be a
joint family property or not and whether
there was legal and valid relinquishment
by Nivrutti shall be the substantial
questions of law for adjudication in this
appeal?
6. Shri S. R. Deshpande, learned Counsel for the
appellants submitted that the appellate Court committed an error
in holding that Gat No.8 was joint family property. According to
him, the only property owned by the joint family was Gat No.14/2
that had been purchased by three brothers on 12-3-1952. This
land came to be partitioned in the year 1959 and equal share was
granted to all the brothers. The suit property being Gat No.8 was
purchased by Sakharam and Nivrutti and it was their joint
property. He submitted that if this was also the property of the
joint family, same would have been the subject matter of partition
that took place subsequent to its purchase. He submitted that
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Nivrutti had orally relinquished his share in favour of Sakharam
and after 1961 said Sakharam was in possession of the entire land.
His possession continued for more than thirty years and only when
the present plaintiff was dispossessed that the suit for possession
was required to be filed. He submitted that there was no evidence
brought on record to indicate that Laxman had contributed in the
purchase of Gat No.8. The revenue record showed the possession
of Sakharam since the year 1961. He submitted that the trial
Court rightly held that no decree for partition could be passed.
The appellate Court however ignoring such evidence directed the
partition of the suit property. In support of his submission learned
Counsel placed reliance on the decision in Mudi Gowda Gowdappa
Sankh vs. Ram Chandra Ravagowua Sankh (1969) 1 SCC 386 and
Ramnagina Sah and ors. Vs. Harihar Sah and Ors AIR 1966 Patna
179.
7. Shri M. B. Joshi, learned Counsel for the respondent
supported the impugned judgment. According to the learned
Counsel, merely because Gat No.8 was purchased in the name of
two brothers that by itself would not mean that said property was
not joint family property. The fact that this land was purchased
from the income received from Survey No.14/2 itself indicated
that Gat No.8 was the joint family property. The relinquishment by
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Nivrutti as alleged was not duly proved and merely on the basis of
mutation entries, no title could be transferred in favour of
Sakharam. He referred to the evidence on record to indicate that
the appellate Court rightly found that the nucleus was duly proved
for purchasing Gat No.8. In support of his submissions, the
learned Counsel placed reliance on the decision in Kondiram
Bhiku Kirdat v. Krishna Bhiku Kirdat AIR 1995 SC 297 and
submitted that it was necessary to hold that Survey No.8 was
jointly owned by the family.
8. I have heard the learned Counsel for the parties at
length and I have perused the records of the case. It is not in
dispute that Survey No.14/2 was jointly purchased by three
brothers on 12-3-1952. Gat No.8 was subsequently purchased on
1-1-1957 by Sakharam and Nivrutti. In the year 1959, Survey
No.14/2 was partitioned. As per this partition, Nivrutti was
granted 1 Hectare 89 R land which became Survey No.14/4.
Sakharam was granted 1 Hectare 89R land from Survey No.14/2
and Laxman was granted 1 Hectare 88 R land from Survey
No.14/3. Laxman's share was subsequently auctioned in the
proceedings in Regular Civil Suit No.125/1969. The revenue
records at Exhibits 40, 41 and 42 indicate exclusive possession of
Sakharam in respect of Gat No.8. These entries are from 1961
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onwards and according to said Sakharam, he came in possession
of the entire Gat No.8 in the year 1961 itself on account of the
relinquishment in his favour by Nivrutti.
9. If the evidence of the parties is perused, it can be seen
that the plaintiff in Regular Civil Suit No.213/1995 was examined
at Exhibit-61. He stated that the relinquishment by Nivrutti in
favour of his father was oral in nature and that his father came in
possession of the entire Gat No.8 after the death of Nivrutti in
1961. Baban was examined below Exhibit-72. In his cross-
examination he admitted that in the year 1959 there was a
partition and land from Survey No.14/2 was allotted to his father.
He further admitted that after the death of Nivrutti in 1961 till
1994, the name of Sakharam and thereafter his son was entered in
the revenue records. From 1980 to 1995 no objection was taken
by him in that regard. He further admitted that after receiving the
suit notice, he applied for the first time before the Tahasildar for
mutation in respect of 30 Gunthas land.
10. From the aforesaid evidence on record, it can be seen
that though Laxman was the youngest of the brothers, Survey
No.14/2 was purchased by all the three brothers in their names.
This was in the year 1952. If in the year 1952 the three brothers
could purchase the land in their joint names, there is no
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explanation as to why Gat No.8 was purchased only by Sakharam
and Nivrutti. It is pertinent to note that the suit land purchased in
the year 1957 was not put for partition in the year 1959 when
there was severance of joint family status. The evidence further
reveals that after 1959 the three brothers disposed of their
respective shares or part thereof. After the death of Nivrutti in the
year 1961 there are consistent mutation entries showing exclusive
possession of Sakharam with no objection being taken by the
other brother Laxman or his son for almost thirty five years.
11. In the light of this evidence on record, it was found by
the trial Court that Gat No.8 had been purchased only by two
brothers and after relinquishment of the share by Nivrutti,
Sakharam was in possession. This conclusion arrived at by the
trial Court in my view is after taking into consideration the entire
evidence on record. The first appellate Court however held that
the admission of Baban could not be misread and thus held that
Survey No.8 was also joint family property. It has come on record
that the relinquishment by Nivrutti in favour of Sakharam was oral
and this fact is corroborated by the exclusive possession of
Sakharam for more than thirty five years. The admission given by
Baban cannot be said to be mistaken and on consideration of his
entire deposition, it is clear that he had admitted that the partition
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had taken place in the year 1959 and no claim was made for the
suit land for number of years. The long standing mutation entries
for almost thirty five years also could not have been ignored.
I, therefore, find that the conclusion arrived at by the trial Court is
on the basis of the entire evidence on record and the appellate
Court committed an error in setting aside that judgment of the
trial Court.
12. In the facts of the present case, the reliance placed on
the decision in Kondiram Bhiku Kirdat (supra) is misplaced.
Considering the entire evidence on record, the substantial
questions of law is answered by holding that Gat No.8 cannot be
said to be joint family property and that there was a valid and
legal relinquishment by Nivrutti in favour of Sakharam.
13. As a result of aforesaid discussion, the following order
is passed:
ORDER
(1) The judgment of the appellate Court dated 12-1-2004
in Regular Civil Appeal No.8/2002 and Regular Civil Appeal
No.9/2002 is set aside.
(2) The judgment of the trial Court in Regular Civil Suit
No.213/1997 and Regular Civil Suit No.88/1995 dated 14-8-2002
is restored.
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(3) The appeals are allowed in aforesaid terms with no
order as to costs.
JUDGE
/MULEY/
