Bombay High Court
Baburao Vitthalrao Dhumal vs Kalindabai Jeevan Dhumal And Anr on 24 August, 2021
Bench: V. V. Kankanwadi
sa-56-2013.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.56 OF 2013
BABURAO VITTHALRAO DHUMAL
VERSUS
KALINDABAI JEEVAN DHUMAL AND ANR
...
Mr. R. P. Adgaonkar, Advocate for appellant.
Mr. Kalyan V. Patil, Advocate for respondent No.1.
Mr. G. N. Patil, Advocate for respondent No.2.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 24.08.2021
ORDER :-
. Present appeal has been filed by original defendant No.2
challenging the judgment and decree passed in Regular Civil Appeal
No.83 of 2008 by learned Ad-hoc District Judge-II, Latur on 05.07.2012
thereby partly allowing the appeal and then by setting aside the
judgment and decree passed by learned Joint Civil Judge Junior
Division, Ausa dated 15.04.2008 in Regular Civil Suit No.153 of 2003;
went on to partly decreed the said suit. Defendant No.2 himself or
through agent, servant or representatives was permanently restrained
from causing obstruction to plaintiff's peaceful possession over 0.81 Aar
southern side area of Gat No.100 situated at Devengra Tq. Ausa.
sa-56-2013.odt
2. It is to be noted that present respondent No.1 is the original
plaintiff, who had filed said Regular Civil Suit No.153 of 2003 for
declaration and permanent injunction. It was dismissed, however, when
she filed the Regular Civil Appeal No.83 of 2008, as aforesaid, the first
Appellate Court has partly allowed the appeal and partly decreed the
suit. Hence, this second appeal.
3. Heard learned Advocate Mr. R. P. Adgaonkar for the appellant,
learned Advocate Mr. Kalyan V. Patil for respondent No.1 and learned
Advocate Mr. G. N. Patil for respondent No.2.
4. At the outset, it is to be noted that the plaintiff had claimed
ownership over the suit property. Plaintiff is the wife of defendant No.1.
She contended that she had two sons from defendant No.1, however,
one of her son, namely, Venkat expired in the year 1997. Defendant
No.1 is addicted to liquor. It was contended that land Gut No.100 which
was admeasuring 1 H 62 R was partitioned between her both the sons
i.e. Pralhad and Venkat. 81 R land on the northern side went to the
share of Pralhad, whereas 81 R land from southern side went to the
share of Venkat. After death of Venkat, plaintiff had tried to get her
name mutated. She was possessing the said property since the death of
Venkat as his heir, however, defendant No.1 has sold the said property
by sale deed dated 26.03.2003 to defendant No.2 The said sale deed is
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not binding on the plaintiff and, therefore, she filed the suit.
5. The suit proceeded ex parte against defendant No.1. Defendant
No.2 filed written statement and it was denied that there was any such
kind of partition between Pralhad and Venkat. Defendant No.1 was the
Karta of the joint Hindu family. In order to improve the land and to
increase the income of the family, the portion has been sold by
defendant No.1 to defendant No.2. It is also contended that defendant
No.1 was suffering from appendix and was required to be operated.
Deceased Venkat was also ill due to dog bite. Defendant No.1 had taken
amount from defendant No.2 to the extent of Rs.63,000/- for the family
necessity and, therefore, he has become the sole owner.
6. The learned Trial Judge held that the plaintiff has failed to prove
that she is the owner and possessor of the suit property. She had failed
to prove that defendant No.2 is obstructing her possession over the suit
land and, therefore, suit came to be dismissed. When the plaintiff filed
appeal, the first Appellate Court taking into consideration the same set
of facts has come to the conclusion that plaintiff has failed to prove that
she is the owner of the suit land, as share of her son Venkat has
devolved on her after his death. It was also held that plaintiff has failed
to prove that the sale deed dated 14.04.2003 executed by defendant
No.1 in favour of defendant No.2 is void, illegal and without
sa-56-2013.odt
consideration. However, surprisingly it is to be noted that a finding has
been given that defendant No.2 has proved that the suit land was Joint
family property of plaintiff, defendant No.1 and their son and then it has
been held that the plaintiff is in possession of the suit property and
defendant No.2 is causing obstruction to her lawful possession. Plaintiff
is held to be not entitled to get declaration, but then perpetual
injunction has been granted.
7. It is to be noted that when the first Appellate Court come to the
conclusion that defendant No.2 had proved that the suit property is the
joint family property of plaintiff, defendant No.1 and their son, then it
appears that there is no proper discussion by framing a point for
consideration whether the sale deed was for legal necessity. But, in
other words, it has been held that plaintiff has failed to prove that the
sale deed executed by defendant No.1 in favour of defendant No.2 is
void, illegal and without consideration. If the sale deed in favour of
defendant No.2 is valid, which was executed by defendant No.1, then
prima facie it appears that the content of the sale deed, which would be
definitely stating that the possession has been handed over, whether
have been taken from that angle or not and whether when the
ownership is transferred then what could have been the hurdle for
defendant No.1 to hand over the possession, is a question which requires
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to be answered in the second appeal and, therefore, substantial
questions of law are arising in this case. Second Appeal, therefore,
stands admitted. Following are the substantial questions of law :-
I) Whether the learned first Appellate Court was justified in
reversing the finding in respect of possession held by the Trial
Court in favour of defendant No.2 ?
II) Whether the learned first Appellate Court's decision to point
Nos.5 and 7 are perverse and against the documentary evidence
on record?
III) Whether the first Appellate Court was justified in giving
contrary finding to point Nos.5 and 7 when it was held by the first
Appellate Court that the plaintiff has failed to prove ownership
over the suit land and the fact that sale deed dated 14.04.2003
executed by defendant No.1 in favour of defendant No.2 is void,
illegal and without consideration?
8. Issue notice to the respondents. Learned Advocate Mr. Kalyan
Patil waives notice for respondent No.1 and learned Advocate Mr. G. N.
Patil waives notice for respondent No.2.
9. Call record and proceedings.
[SMT. VIBHA KANKANWADI, J.]
scm
