Shaikh Bashir Shaikh Hussain vs Shaikh Yasmin Shaikh Hasan And ...
2021 Latest Caselaw 6180 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                           SECOND APPEAL NO.427 OF 2020

 Shaikh Bashir S/o Shaikh Hussain,
 Age-72 years, Occu:Agri.,
 R/o-Nalewadi, Taluka-Ambad,
 District-Jalna
                                                              ...APPELLANT
                                                            (Orig. Defendant)
       VERSUS

 1) Shaikh Yasmin S/o Shaikh Hasan,
    Age-57 years, Occu:Agri.,
    R/o-Churnmapuri, Taluka-Ambad,
    District-Jalna,

 2) Shaikh Mithu S/o Shaikh Hasan,
    Age-55 years, Occu:Agri.,
    R/o-Churnmapuri, Taluka-Ambad,
    District-Jalna,

 3) Shaikh Yunus S/o Shaikh Hasan,
    Age-61 years, Occu:Agri.,
    R/o-Churnmapuri, Taluka-Ambad,
    District-Jalna,

 4) Shaikh Kaisar S/o Shaikh Hasan,
    Age-50 years, Occu:Agri.,
    R/o-Churnmapuri, Taluka-Ambad,
    District-Jalna,

 5) Hafijanibee W/o Shaikh Hasan,
    Age-78 years, Occu:Agri.,
    R/o-Churnmapuri, Taluka-Ambad,
    District-Jalna.
                                                            ...RESPONDENTS
                                                             (Orig. Plaintiffs)




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               ...
    Mr. Sandeep D. Munde Advocate for Appellant.
    Mr. R.R. Mantri Advocate for Respondents No. 1 to 5.
               ...

            CORAM: ANIL S. KILOR, J.

DATE : 7th APRIL, 2021

ORAL ORDER :

1. The appellant feeling aggrieved by the Judgment and decree dated

5th February 2020 passed by the District Judge-2, Jalna in Regular Civil

Appeal No. 64 of 2014, partly allowing said Regular Civil Appeal to the

extent of recovery of the possession, preferred the present appeal.

2. I have heard learned counsel appearing for the respective parties.

3. The brief facts of the present case are as follows (parties are referred

to as per their status before the trial Court):

4. The plaintiffs filed a suit being Regular Civil Suit No. 160 of 2007 in

the Court of Civil Judge, Junior Division, Ambad for recovery of possession

of the suit property, namely, Block No. 22, admeasuring 2 Acres i.e. 81 R.

situated at village Churmapuri, Taluka-Ambad. It is the case of the

plaintiffs that the suit property was owned by one Shaikh Hasan and

plaintiffs are the legal heirs of Shaikh Hasan. It is the further case of the

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plaintiffs that the defendant prepared false document on 21 st February

1989, by taking disadvantage of illness of Shaikh Hasan and thereafter in

collusion with the revenue authorities, mutated his name in the revenue

record and acquired possession of the suit property. The plaintiffs claim

title over the suit property being legal heirs of Shaikh Hasan, by way of

succession.

5. The defendant filed his written statement and accepted the

ownership of Shaikh Hasan, however, he came up with a case that he paid

Rs.10,000/- to Shaikh Hasan and thereupon Shaikh Hasan had executed a

partition deed on a stamp paper of Rs.5/-, which was the basis to record

the name of the defendant in revenue record and as such he got the title as

regards the suit property.

6. The defendant also raised a ground of limitation and stated that his

name was recorded in the revenue record in the year 1989 and since then

he is continuously in possession of the suit property and the suit came to be

filed in the year 2007 and not within 12 years after the defendant came in

possession in the year 1989.

7. The learned trial Court, after scrutinizing the oral as well as

documentary evidence available on record and after considering the

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relevant provisions of law, dismissed the suit. The learned trial Court while

dismissing the suit held against the plaintiffs on the point of limitation and

on the point of partition vide Judgment and decree dated 28 th

February 2014.

8. Feeling aggrieved by the said Judgment and decree, the plaintiffs

preferred appeal, which came to be partly allowed vide impugned

Judgment and decree dated 5th February 2020, and thereby the suit was

decreed to the extent of recovery of possession. The said Judgment and

decree is under challenge in the present appeal.

9. Shri Munde, learned counsel appearing for the appellant /

defendant submits that the learned trial Court has rightly held that the

defendant became owner of the suit property after partition, however, the

learned lower appellate Court has erroneously reversed the said finding.

10. It is submitted that the learned lower appellate Court has not

properly considered the issue of limitation in view of the admitted facts

that in the revenue record the name of the defendant was recorded in the

year 1989 and the suit was filed in the year 2007. Thus, the suit was filed

beyond period of 12 years prescribed under Article-65 of the Limitation

Act.

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11. It is further submitted that the suit was simpliciter for possession

without seeking declaration as regards title and therefore, the suit

simpliciter for possession is not maintainable.

12. Per contra, Shri Mantri, learned counsel appearing for respondents /

plaintiffs supports the impugned Judgment and decree and prays for

dismissal of the appeal.

13. To consider the rival contentions of the parties, I have perused the

record and the Judgments of both the Courts below.

14. It is clear from the record that the defendant is not disputing the

ownership of Shaikh Hasan, however, it is the case of the defendant that he

derived the title in respect of the suit property by way of partition which

was executed by Shaikh Hasan on a stamp paper of Rs.5/- after receiving

Rs.10,000/- from the defendant.

15. It is a settled position of law that the partition of property takes

place as and when any immovable ancestral or parental property is jointly

owned and where either party or both parties intend to get their shares in

property, separated.

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16. In the case in hand, in absence of the case of the defendant that the

suit property is an ancestral property and he has a share in the suit

property and in lieu of said right of the defendant in the suit property the

partition deed was executed by Shaikh Hasan, the transfer of title of suit

property by way of partition deed cannot be accepted as legal.

17. It is a settled law that transfer of title is permissible only by way of

registered document and effect of non-registration of document is hit by

Section 49 of the Registration Act 1908, which provides that no such

document shall operate to create, declare, assign, limit or extinguish any

right, title or interest on immovable property.

18. In the present matter admittedly no document has been produced by

the defendant, more particularly, any registered document transferring title

of the suit property by Shaikh Hasan in favour of the defendant.

19. In absence of dispute in respect of ownership of Shaikh Hasan and

in view of the fact that after the death of Shaikh Hasan the plaintiffs have

succeeded the title of the suit property by way of succession, on failure of

the defendant to prove his title, it can safely be said that no cloud is

created over the title of the plaintiffs in the present matter and in absence

of any cloud over the title of the plaintiffs, the suit simpliciter for

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possession is maintainable as law laid down by the Hon'ble Supreme Court

of India in a case of Anathula Sudhakar vs. P. Buchi Reddy (dead) By LRS.

and others1. In the circumstances, this Court does not find any fault in

filing of suit by the plaintiffs simpliciter for possession, in the present

dispute.

20. As regards the limitation, under Article-65 of the Limitation Act, the

period of 12 years starts running when the possession of the defendant

becomes adverse to the plaintiffs. Admittedly, no case of adverse possession

has been pleaded by the defendant in the present matter and therefore, the

suit filed by the plaintiffs is well within limitation. Thus, the contention of

the defendant that the suit is barred by limitation cannot be accepted and

the same is rejected.

21. In view of the findings recorded herein above, I do not find any

substantial question of law involved in the present matter and I also do not

find any perversity in the findings recorded by the learned lower appellate

Court.

22. Accordingly, the Appeal is dismissed. No order as to costs.

 1     (2008) 4 Supreme Court Cases 594





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23. At this stage, Shri Munde, learned counsel appearing for the

appellant prays for extension of stay, granted by this Court vide order dated

18th December 2020 as regards possession, for six weeks.

24. Shri Mantri, learned counsel appearing for respondent opposes the

said prayer.

25. Since this Court has granted interim relief as regards possession and

the same is continued since more than three months, no prejudice would

be caused to the respondent if the same is continued for another six weeks.

Accordingly, interim relief is continued for another six weeks from today.

26. Pending Civil Application No. 8517 of 2020 is also disposed of.

[ANIL S. KILOR, J.]

asb/APR21