Dhondiba Tuljaram Ingale vs Bhimrao Khanderao Ingale And ...
2021 Latest Caselaw 6643 Bom

                                                                    SA.744-2017.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                         SECOND APPEAL NO.744 OF 2017

Dhondiba s/o. Tuljaram Ingale,
Age : 63 years, Occ. Priest (Pujari),
Jawahar Chowk, Tuljapur,
Tq. Tuljapur, Dist. Osamanabad                    ..Appellant
                Vs.
1.      Bhimrao s/o. Khanderao Ingale,
        Age : 66 years, Occ. Priest (Pujari),
        Jawahar Chowk, Tuljapur,
        Tq. Tuljapur, Dist. Osmanabad
        at present Varad Vinayak Society,
        Building B-12, Gopalwadi Road,
        Daund, Tq. Daund, Dist. Pune

2.      Ashok s/o. Shivajirao Ingale,
        Age : 73 years, Occ. and r/o.
        As above

3.      Shashikala Madhukar Ingale,
        Age : 71 years, Occ. Household,
        r/o. As above

4.      Tanaji s/o. Khanderao Ingale (died),
        through his L.Rs.

4-A. Smt. Indumati Tanaji Ingale
     Age : 76 years, Occ. Household,
     r/o. Vasudeo Galli, Behind Court,
     Tuljapur, Dist. Osmanabad

4-B. Pawan s/o. Tanaji Ingale,
     Age : 58 years, Occ. Nil,
     r/o. As above




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4-C. Sanjay s/o. Tanaji Ingale,
     Age : 49 years, Occ. Service,
     r/o. As above

4-D. Rani Tanaji Ingale,
     Age : 44 years, Occ. Household,

4-E. Sunita Rajendra Wadadekar,
     Age : 50 years, Occ. Household,
     r/o. Near Fort, Mangalwedha,
     Dist. Solapur

4-F. Anita Madhukar Dhamale,
     Age : 46 years, Occ. Service,
     r/o. Nar Sushiladevi College,
     Khadgaon Road, Latur                             ..Respondents

                               ----
Mr.M.P.Tripathi, Advocate for appellant
                               ----

                         CORAM : R.G. AVACHAT, J.

RESERVED ON : APRIL 07, 2021 PRONOUNCED ON : APRIL 23, 2021

ORDER :-

This appeal is directed against the judgment and

decree passed by learned Joint Civil Judge, Junior Division,

Tuljapur, on 30.11.2013 in R.C.C. No.28 of 2008 and confirmed

by the judgment passed by learned District Judge-2,

Osmanabad, on 22.12.2016 in R.C.A. No.18 of 2014. By the

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impugned judgment and decree, the suit of the appellant

(plaintiff) for possession of the house property, described in the

plaint, came to be dismissed. Hence, this Second Appeal.

2. Heard learned counsel for the appellant. Perused

the impugned judgments. In my view, no substantial question

of law arises in this Second Appeal. The appeal is, therefore,

liable to be dismissed for the reasons given herein below.

3. The appellant claimed to be the owner of the suit

property. It is his case that the suit property came to the share

of his father in partition that took place way back in December,

1952. Since the partition was not effected by metes and

bounds, the father of the appellant had filed a suit for partition

of the joint family properties. It was a suit bearing R.C.S.

No.75 of 1987. The father of the appellant died on 15.02.1989.

The father of the appellant was in possession of the suit

property during his lifetime. On his demise, the appellant

continued in possession of the suit property. However, in

December, 2007, respondent no.2 herein (defendant no.2)

4 SA.744-2017

dispossessed the appellant from the suit property. The

appellant used to let out the suit property to the pilgrims who

would visit Tuljapur for Darshan of Goddess Tuljabhavani.

Since respondent no.2 dispossessed the appellant from the suit

property, the appellant filed the suit for possession and mesne

profits. Both the Courts below dismissed the suit holding the

appellant to have no title to the suit property and consequently,

not entitled for the relief of possession.

4. Mr.Tripathi, learned counsel for the appellant, would

submit that the father of the appellant, admittedly, had 1/3rd

share in the house property bearing C.T.S. Nos.1427, 1428,

1429. The suit property was allotted to the share of the

appellant's father in the partition. Since the partition was not

effected by metes and bounds, the father of the appellant had

filed suit (75/1987) for partition of the family properties.

Respondent no.2 herein was party to the said suit. The case of

respondent no.2 that he had purchased the suit property from

the father of the appellant under an unregistered sale deed

dated 10.09.1973, was not a matter directly and substantially

5 SA.744-2017

in issue in the said suit. Learned counsel produced on record a

copy of the judgment in R.C.S. No.75 of 1987 and R.C.A. No.97

of 1999. According to learned counsel, respondent no.2 did

not lead any evidence in proof of the sale deed. A copy of the

evidence recorded in R.C.S. No.75 of 1987 was not admissible

in evidence in the suit under this appeal. Respondent no.2 did

not prove that the value of the suit property was below

Rs.100/- when the alleged sale deed was executed. According

to learned counsel, substantial questions of law, as have been

mentioned in Grounds II to XI of the appeal memo, do arise for

consideration in this Second Appeal. He, therefore, urged for

admission of the Second Appeal.

5. Admittedly, the father of the appellant had 1/3rd

share in the property bearing C.T.S. Nos.1427, 1428, 1429.

The suit property came to the share of the father of the

appellant in a partition that took place in December, 1952.

Since the partition was not effected by metes and bounds, the

appellant's father instituted suit (75 of 1987) for partition and

separate possession of his 1/3rd share in the joint family

6 SA.744-2017

properties. Respondent no.2 herein was a party to the said

suit. He claimed to have had purchased the suit property from

the father of the appellant under the unregistered sale deed

dated 10.09.1973. Said sale deed was duly proved in the said

suit. The appeal preferred against the judgment and decree

passed in R.C.S. No.75 of 1987, came to be dismissed. The

decree passed in R.C.S. No.75 of 1987 attained finality. Said

decree comes in the way of the appellant herein.

True, no specific issue had been framed in the suit

(75 of 1987) as regards execution of the sale deed dated

10.09.1973. The matter, directly and substantially in issue in

the said suit (75 of 1987) was, whether the suit property was

joint family property of the father of the appellant herein and

the defendants in the said suit. The said suit was dismissed

holding the appellant's father to have failed to prove his case.

In the said suit, respondent no.2 herein was defendant no.2.

He had contested said suit contending that the father of the

appellant had sold him the present suit property under the

unregistered sale deed dated 10.09.1973. In proof of the said

7 SA.744-2017

sale deed, the attesting witnesses thereto were examined.

Said sale deed was admitted in evidence. It was the suit that

dates back to 1987. Till this date, neither the father of the

appellant and on his demise, nor the appellant herein

challenged the execution of the said sale deed.

6. In the suit under this appeal, the said sale deed was

tendered in evidence. It was referred to by respondent no.2 in

his evidence. Both the courts below admitted the said sale

deed in evidence relying on Section 90 of the Evidence Act.

The witnesses examined on behalf of the appellant have

testified the appellant to have not been in possession of the

suit property since 1973. The Municipal/Revenue record also

did not support the appellant's case. As such, based on the

evidence in the suit, both the Courts below have concurrently

held the appellant to have failed to prove his title to the suit

property and his alleged dispossession from the suit property at

the hands of respondent no.2.

7. It is, therefore, reiterated that no substantial

question of law does arise in this appeal although, learned

8 SA.744-2017

counsel for the appellant may be right in contending that the

copies of evidence recorded in R.C.S. No.75 of 1987 relating to

proof of execution of the sale deed, came to be admitted in the

suit without examination of any of the witness in proof of the

sale deed. It is reiterated that the sale deed was referred to by

the defendant in his evidence. Both the Courts below admitted

the sale deed in evidence, relying on Section 90 of the

Evidence Act. Since execution of the said sale deed, the

appellant has not been in possession of the suit property.

8. For the reasons given herein above, the Second

Appeal is dismissed.

[R.G. AVACHAT, J.]

KBP