Bombay High Court
Rukminbai Limbaji Khatke vs Raghunath Narasappa Herkar And ... on 30 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
28 SECOND APPEAL NO.487 OF 2013
WITH
CA/9263/2013 IN SA/487/2013
RUKMINBAI LIMBAJI KHATKE
VERSUS
RAGHUNATH NARASAPPA HERKAR AND ANR
...
Advocate for Appellant : Mr. Kulkarni Girish N. (Mardikar)
Advocate for Respondent No.1 : Mr. Warad S. V.
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 30-08-2021.
ORDER :
1. Heard learned Advocate Mr. G. N. Kulkarni for appellant and
learned Advocate Mr. S. V. Warad for respondent No.1.
2. Present appeal has been filed by original defendant No.2.
Present respondent No.1 is the original plaintiff who had filed Regular
Civil Suit No.19 of 2004 before 2nd Joint Civil Judge, Junior Division,
Latur for declaration of ownership and possession. It came to be
dismissed on 31-08-2009. The original plaintiff then filed appeal
bearing Regular Civil Appeal No.165 of 2009 before District Court,
Latur. The said appeal was heard by learned Adhoc District Judge-2,
Latur and the appeal came to be partly allowed. The Judgment and
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decree passed by the lower Court was set aside and substituted.
The suit was partly decreed. The plaintiff was held to be the owner
of Plot No.78 to the extent of the share of one Subhash
Nagnathappa Regude which was sold to the plaintiff by sale deed
dated 13-12-1990, excluding the share of Gunderao Narayanrao
Kulkarni. Plaintiff was held to be having a right to recover
possession in respect of the property of which he is declared owner.
Directions were given to the defendants to put the plaintiff in
possession of that particular land. Hence, the original defendant
No.2 has filed a present second appeal.
3. Learned Advocate for the appellant submits that the First
Appellate Court has not appreciated the evidence properly. There
were rounds of litigation between the parties earlier. Their vendors
were different. The First Appellate Court has not taken into
consideration the sale deed dated 29-08-1988 and also the effect of
suit that was filed by the present appellant against Gunderao
Kulkarni. She had filed Regular Civil Suit No.192 of 1998. That suit
was decreed. Said Gunderao Kulkarni had filed Regular Civil Appeal
No.50 of 2003 which came to be partially allowed. It was held that
Gunderao Kulkarni has an interest in Plot No.78. Present appellant
3 SA 487-2013
had come to this Court in the second appeal challenging that decree,
however, it was dismissed. Yet the fact remains that the effect of
that decree ought to have been taken into consideration by the First
Appellate Court and, therefore, substantial questions of law are
arising in this case.
4. Per contra, learned Advocate appearing for respondent No.1
supported the reasons given by the First Appellate Court and
submitted that no substantial questions of law are arising in this
case.
5. At the outset, it is to be noted that the plaintiff i.e. present
respondent No.1 was claiming title to a portion of land admeasuring
25 feet X 40 feet out of land Survey No.33 i.e. Plot bearing No.78
which he had purchased from one Subhash Nagnath Regude on 13-
12-1990. It was contended by the plaintiff that defendant No.1 in
the suit (present respondent No.2) was obstructing his possession
over the suit land, therefore he had filed that suit, however, it
appears that during the pendency of suit itself, the present appellant
came to be added as defendant No.2. After it was pointed out that
her Regular Civil Suit No.192 of 1998 was decreed on 11-02-2003,
she has taken part in the proceedings.
4 SA 487-2013
6. The case was mainly based on the registered documents and
also the decrees those were passed by the respective Courts as well
as the result in the appeal and, therefore, no detailed discussion was
made in respect of the oral evidence. The learned First Appellate
Court has taken note of all the earlier transactions and the litigations
before arriving at a conclusion that the plaintiff is the owner of the
suit plot to the extent of the share of one Subhash Regude. The sale
deed in favour of the plaintiff is at Exhibit 44. Thereafter, the copy
of the sale deed executed in favour of the appellant appears to have
been produced on record. Certified copies of the various Judgments
of the earlier litigation have been produced. It is specifically
contended in paragraph No.13 that defendant No.2 was claiming
her ownership over the suit plot on the basis of a sale deed dated
27-11-1992 which she had purchased from one Prakash Sitaram
Pawar. Said Prakash Sitaram Pawar himself had purchased the land
by way of the registered sale deed dated 30-07-1991. However, the
plaintiff's sale deed on 13-12-1990 being prior in time, it has been
held that the predecessors of defendant No.2/present appellant
could not have passed better title than they themselves had. The
effect of earlier litigation has also been properly considered. It has
5 SA 487-2013
been observed that in Regular Civil Suit No.192 of 1998 which was
filed by Gunderao against the present appellant, that the suit was
decreed and the present appellant was declared as an owner of plots
No.78 and 79, so also perpetual injunction was granted against
Gunderao Kulkarni. It is also demonstrated as to how Subhash
Regude had no right and authority to transfer the title and
ownership of Plot No.78 in favour of Prakash Sitaram Pawar. It is to
be noted that the present appellant was neither party to the suit that
was filed by the present appellant against Gunderao i.e. Regular Civil
Suit No.192 of 1998 nor he was party to Regular Civil Appeal No.50
of 2003. Under such circumstances, definitely, those decrees are not
binding on the plaintiff herein. Another fact that has come on record
is that in Regular Civil Appeal No.50 of 2003, then Appellate Court
had held that there was joint ownership of Subhash Regude and one
Chandrakant Vishwanath Kapse over Plot No.78, but that Court had
disbelieved the document of partition as it was unregistered. It
appears that Gunderao Kulkarni had purchased the plot from
Chandrakant Kapse, however, it is obvious that when there was joint
ownership of Chandrakant Kapse and Subhash Regude, Chandrakant
could not have perfected the title of Gunderao. Therefore, the
Appellate Court herein has correctly concluded after taking note of
6 SA 487-2013
the Judgment in Regular Civil Appeal No.50 of 2003 that the
ownership of present appellant over Plot No.78 is excluding the
share of Gunderao Kulkarni, and then it is also observed that the
decree has been got by the present appellant by suppressing the
facts and earlier litigations. Therefore, when each and every fact
and the consequences of the earlier litigations have been correctly
considered, there is no error on the point of facts or law. No
substantial questions of law as contemplated under Section 100 of
the Code of Civil Procedure are arising in this case. Hence, the
second appeal stands dismissed. Pending Civil Application stands
disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
