Prabhakar S/O Laxmanrao Raut vs Rajshekhar S/O Gajanan Bhide And ...
2017 Latest Caselaw 7465 Bom

924-SA-194 & 196-17                                                                  1/7


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

                          SECOND APPEAL NO.194 OF 2017


Prabhakar S/o Laxmanrao Raut, 
Aged adult, Occ. Agriculture, 
R/o Behind Krushi Utpanna Bazar Samiti, 
Borkhedi, Tq. & Dist. Nagpur                            ... Appellant. 

-vs-

1.  Sunil s/o Prabhakarrao Hardas,
     Aged 55 years, Occ. Government Service, 
     R/o Apdeo Galli, Daxima Murti Square, 
     Mahal, Nagpur. 

2.  Manoj s/o Tukaramji Talmale,
     Aged 44 years, Occ. Business, 
     R/o Khamla Road, Deo Nagar, 
     Talmale Hardware Shop, 
     Deo Nagar, Square, Nagpur.                         ... Respondents. 


                                             WITH 
                          SECOND APPEAL NO.196 OF 2017

Prabhakar S/o Laxmanrao Raut, 
Aged adult, Occ. Agriculture, 
R/o Behind Krushi Utpanna Bazar Samiti, 
Borkhedi, Tq. & Dist. Nagpur                            ... Appellant. 

-vs-

1.  Rajshekhar s/o Gajanan Bhide,
     Aged 52 years, Occ. Service, 
     R/o Gulmohar-1, 8/11, Raghuji Nagar, 
     Nagpur. 

2.  Manoj s/o Tukaramji Talmale,
     Aged 44 years, Occ. Business, 
     R/o Khamla Road, Deo Nagar, 



         ::: Uploaded on - 29/09/2017                ::: Downloaded on - 30/09/2017 00:44:50 :::
 924-SA-194 & 196-17                                                                            2/7


     Talmale Hardware Shop, 
     Deo Nagar, Square, Nagpur.                                   ... Respondents. 


Shri M. R. Johrapurkar, Advocate for appellant. 
Shri R. L. Khapre,  Advocate for respondents.   

                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 22, 2017

Common Judgment :

Since both these appeals arise out of identical facts and the

defendants are common, they are being decided by this common judgment.

For the sake of convenience, the facts in S.A.No.194/2017 are being stated.

The respondent No.1 is the original plaintiff who claims to be the

owner of plot No.1 admeasuring 37.72 x 52.47 sq. ft. It is his case that this

property had been purchased by him from defendant Nos.2 to 5 on

14/06/1995. According to him the defendant No.1 in June 2002 committed

an encroachment on the said property. As this encroachment was not

removed, suit for possession of the aforesaid property came to be filed.

2. The defendant No.1 opposed the aforesaid suit and took the stand

that on 26/02/1991 he had sold a larger piece of land to defendant Nos.2

and 3. However, while executing the sale deed property admeasuring 5000

sq. ft. was retained by defendant No.1 and this property was not sold to the

defendant Nos.2 and 3. It was his case that the title with regard to the area

admeasuring 100' x 50' continued with him. On that count it was prayed

924-SA-194 & 196-17 3/7

that the suit was liable to be dismissed.

3. Though the suit was initially filed against defendant Nos.2 and 3

also, defendant No.2 filed an application below Exhibit-12 seeking deletion

of her name on the ground that no relief was sought against her. In that

application, she admitted that on 14/06/1995 the suit property was sold to

the plaintiff. The trial Court permitted the name of defendant No.2 to be

deleted.

4. After the parties led evidence, the trial Court held that the

plaintiff was the owner of the suit property on the basis of his sale deed. It

was further held that the defendant No.1 was not entitled to claim the area

of 5000 sq. ft. land as per his contention that this area was not sold under

the sale deed dated 26/02/1991. The suit was accordingly decreed. The

appellate Court confirmed this finding.

5. The learned counsel have been heard on the following substantial

questions of law :

(i) Whether the contents of sale-deed dated 14/06/1995 can be said to be duly proved as held by the first appellate Court on the basis of application that was moved by defendant No.2 below Exhibit-12 that she had executed such sale-deed in favour of the plaintiff ?

 924-SA-194 & 196-17                                                                              4/7


    (ii)        Whether both the Courts were legally correct in holding that 5000

sq. ft. land as alleged by the defendant No.1 was also sold by him ?

6. Shri M. R. Johrapurkar, learned counsel for the defendant No.1-

appellant submitted that the defendant No.1 by sale deed dated 26/02/1991

had not disposed of 5000 sq. ft. land in favour of the plaintiff's vendor. He

referred to the sale deed at Exhibit-94 to contended that there was a specific

reference made in that regard with regard to the area admeasuring 100' x

50'. According to him the purchaser had accepted the fact that this area

would be given to the vendor without any consideration. It was therefore

submitted that as this portion of the land was not transferred to the plaintiff's

vendor, the sale deed executed in favour of the plaintiff did not convey valid

title to him. He urged that both the Courts misconstrued the aforesaid

contentions of the sale deed thus giving rise to a substantial question of law.

He placed reliance on the judgment in Anathula Sudhakar vs. P. Buchi

Reddy (Dead) By LRs. and ors. (2008) 4 SCC 594 and judgment of Kerala

High Court in Princy and anr. v. Jose AIR 2010 Kerala 1. He also

submitted that the plaintiff's title had not been duly proved inasmuch as the

plaintiff had not proved the contents of that sale deed.

7. Shri R. L. Khapre, learned counsel for the original plaintiff

supported the impugned judgment. According to him, the clause referred to

924-SA-194 & 196-17 5/7

by defendant No.1 could not be construed in the manner as urged by

defendant No.1. According to him the description of the property was

mentioned in the sale deed as being 2H 64 R. The entire property was sold

to the plaintiff's vendor and the defendant No.1 did not remain the owner of

5000 sq. ft. area as contended. He further submitted that the purchasers of

the property had not signed the said covenant on which the defendant No.1

was relying. He then submitted that the plaintiff's sale deed was rightly held

to have been duly proved in view of the admission of the vendor that such

sale deed was duly executed. He placed reliance on the judgment in

Damaji Sakharam Chivande (since deceased by LRs) Jayawantabai wd/o

Damaji Chivande and ors. vs. Mainabai wd/o Sakharam Awale and ors.

2010(4) Mh.L.J. 107 to urge that no objection was taken when the plaintiff's

sale deed was exhibited before the trial Court.

8. I have heard the learned counsel for the parties at length and I

have perused the impugned judgments. It is not in dispute that initially the

suit was filed against the appellant herein as well as the plaintiff's vendor.

The said vendor who was defendant No.2 moved an application below

Exhibit-12 seeking deletion of her name on the ground that no relief was

sought against her. In that application it was admitted that the property in

question was sold to the plaintiff on 14/06/1995. It was for the plaintiff's

vendors to challenge this transaction if they were so aggrieved with the

924-SA-194 & 196-17 6/7

same. The sale deed in favour of the plaintiff having been accepted by their

vendor, both the Courts were justified in exhibiting that document on the

basis of which the plaintiff acquired title. Moreover, no objection having

been raised by the defendant No.1 before the trial Court while exhibiting the

sale deed, the defendant No.1 was precluded from urging that the sale deed

should not have been exhibited. The decision in Damoji Sakharam

Chivande (supra) supports this conclusion. Substantial question of law No.1

stands answered by holding that the plaintiff's sale deed was duly proved.

9. In so far as the covenant in the sale deed at Exhibit-94 on which

much reliance has been placed by the defendant No.1, it is to be seen that as

per that covenant it was merely stated that the purchaser of the aforesaid

property had agreed to give 5000 sq. ft. land to the vendor without

consideration. As noted above this sale deed dated 26/02/1991 is signed

only by the defendant No.1 and there is no signature of the plaintiff's vendor

accepting this stipulation. Said covenant cannot be read in a manner as

sought to be urged by defendant No.1 in view of the clear description of the

suit property that was sold. The area has been shown as 2H 64 R but

according to defendant No.1 this would not include 5000 sq. ft. area.

Considering the said sale deed as a whole, I do not find merit in the

contention as urged by the defendant No.1.

924-SA-194 & 196-17 7/7

10. I find that both the Courts have taken into consideration relevant

evidence and have thereafter come to the conclusion that the hand written

covenant does not have the effect of the defendant No.1 continuing to be the

owner of 5000 sq. ft. land. The decision relied upon by the learned Counsel

for the appellant of the Kerala High Court in Princy and anr. (supra) in the

facts of the present case does not support his contentions. Considering the

entire evidence on record, I do not find that both the Courts committed any

error in holding in favour of the plaintiff. His title having been proved the

suit has been rightly decreed. Hence substantial question of law No.2 as

framed is answered against the defendant No.1.

11. I therefore find no merit in both the second appeals. They are

therefore dismissed with no order as to costs.

At this stage, learned counsel for the appellant seeks protection of

possession for a period of eights weeks. This request is opposed by learned

counsel for the respondent No.1. In the facts of the case, the decree for

possession shall not be executed for a period of six weeks from today. This

protection shall cease to operate automatically after period of six weeks.

JUDGE

Asmita