Bombay High Court
Chandrakant Shankarrao Deshmukh vs Ramkrishna Shamrao Jamdade And ... on 11 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
911 CIVIL APPLICATION NO.1584 OF 2016
IN SAST/3035/2016 WITH CA/1585/2016
CHANDRAKANT SHANKARRAO DESHMUKH
VERSUS
RAMKRISHNA SHAMRAO JAMDADE AND OTHERS
...
Mr. R.L. Kute, Advocate for the applicant
Mr. S.B. Choudhari, Advocate for the respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 11th AUGUST, 2021.
ORDER :
1 The application for condonation of delay has been filed to get
delay of 587 days condoned in filing Second Appeal. Applicant is the original
defendant No.4. He wants to challenge the concurrent Judgment and
Decree. He has contended that his real brother was seriously ill from
December, 2013. He was required to be hospitalized at Solapur. However,
ultimately his brother expired on 21.11.2015. He was busy in taking care of
his brother from December, 2013 to November, 2015 and, therefore, could
not file the Second Appeal within limitation.
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2 Heard learned Advocate Mr. R.L. Kute for the applicant and
learned Advocate Mr. S.B. Choudhari for the respondent No.1.
3 The applicant has produced certain medical papers on record.
Taking liberal view, though the respondent No.1 has strongly opposed the
application by filing affidavit-in-reply of the respondent No.1, the delay
deserves to be condoned. Accordingly, it is condoned.
4 With consent of both the parties the Second Appeal was taken up
for admission, immediately. The learned Advocate appearing for the
appellant-original defendant No.4 submitted that both the Courts below have
not considered the defence that was taken by the appellant in proper
perspective. The lower Appellate Court had failed to consider that Section 90
of the Indian Evidence Act is not applicable to unregistered document and
wrongly believed that the said document is proved. In fact, present
appellant-original defendant No.4 was contending that the suit property is
part of the land, which is locally known as 'Gadhi'. However, plaintiff has got
his name entered forcibly and the entries in the Grampanchayat record are
not proof of title. Both the Courts below ought to have dismissed the suit.
5 Per contra, the learned Advocate appearing for respondent No.1
supported the reasons given by both the Courts below and submitted that
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when the plaintiff has proved his title and possession, the suit was correctly
decreed.
6 In order to prove their claim over the suit property the plaintiff
has produced on record sale deed. It was in modi script and, therefore, it
was got translated by the plaintiff and the Translator has been examined as
PW 3 Kashinath. It is to be noted that the consideration that has been stated
in that document is Rs.15/-. It was not compulsorily registrable document
because the value of the same is below Rs.100/-. The document appears to
have been correctly exhibited and the provisions of Section 90 of the Indian
Evidence Act have been properly applied. When the sale deed itself has been
produced on record by the person who had purchased the suit property, that
is, the document is coming on record from proper custody, then presumption
was bound to follow. Further, not only in respect of ownership but there are
documents showing that the plaintiff has paid the necessary taxes to the
Grampanchayat. Further, it can be seen that the defendant No.4 was coming
up with the specific defence that he is the owner of the said property and it is
part and parcel of Sy.No.1, which is known as 'Gadhi'. The learned Trial
Judge as well as First Appellate Court both have considered that the present
appellant has not produced any documentary evidence to support his
contention. Under such circumstance, the view taken by both the Courts
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below on the basis of assessment of oral as well as documentary evidence and
the legal point therein involved is correct. No substantial question of law is
arising, as contemplated under Section 100 of the Code of Civil Procedure,
1908. Hence, the Second Appeal stands dismissed. Civil Application
No.1585 of 2016 stands disposed of.
( Smt. Vibha Kankanwadi, J. )
Donge
