Bombay High Court
Kisansing Gangaramsing Rajput ... vs Mannabai Harichand Barwal And ... on 8 December, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.282 OF 2017
KISANSING GANGARAMSING RAJPUT
SINCE DECEASED, PER L.RS.
VERSUS
MANNABAI HARICHAND BARWAL AND OTHERS
.....
Advocate for Appellants : Mr. S. S. Bora
Respondents No.1 and 3 deleted as per order dated 01-08-2017
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
24-11-2021
Date of Pronouncing the Order :
08-12-2021
ORDER :
1. Present appellants are the legal representatives of original
defendant. They want to challenge the concurrent Judgment and
decree.
2. Before proceeding further, it is to be noted that names of
present respondent No.1 and 3/original plaintiffs No.1 and 3 have been
deleted by order dated 01-08-2017 and, therefore, the second appeal
is only against original plaintiff No.2. All the respondents had filed
Regular Civil Suit No.105 of 2003 (Old Special Civil Suit No.103 of
2 SA 282-2017
1981) before learned Civil Judge, Junior Division, Ambad District
Jalna, for recovery of possession. That suit was decreed. Original
defendant was directed to handover possession of the suit land to
the plaintiffs. The original defendant then challenged the said
Judgment and decree, and it appears that he expired during the
pendency of the appeal and, therefore, his legal heirs continued
Regular Civil Appeal No.126 of 2007. The said appeal came to be
dismissed by learned District Judge-2, Jalna on 19-01-2017.
3. Head learned Advocate Mr. S. S. Bora for appellants.
4. In view of the ratio laid down in, Ashok Rangnath Magar vs.
Shrikant Govindrao Sangvikar, reported in (2015) 16 SCC 763, it is
not necessary to here the respondent before admitting the second
appeal. On the contrary, if the appellants have able to show that
the appeal is giving rise to substantial questions of law, then it is
required to be admitted and then notice is required to be issued to
the respondents.
5. Perusal of the Judgment of both the Courts below would show
that both the Courts have held that the plaintiffs are the owners of
suit land, but it is in the possession of the defendants. It was then
3 SA 282-2017
held that the defendants have failed to prove adverse possession
and, therefore, decree has been passed. The mutation entries have
not been accepted by both the Courts below. In the plaint it has
been stated that somewhere near Diwali of 1979, the plaintiffs have
been excluded from possession and, therefore, that has been shown
to be the cause of action. As against this, the defendant was
contending that the suit property was the ancestral/joint family
property of the defendant. Genealogy has been given. It is then
said that defendant Pandurang and Dhansing (through whom the
plaintiffs were claiming to be the owners), were jointly possessing
the suit land, but thereafter, there was an oral partition in the year
1963 in which the 1/3rd portion of original Survey No.4 i.e. suit
land, was allotted to the defendant. It is further contended that
during the implementation of the consolidation scheme, the property
was wrongly mutated in the name of predecessor of plaintiffs. Name
of defendant was recorded to Gut N.5. Thus, it is to be noted that
both the Court appears to have not framed and considered the point
of limitation directly but issue was framed to the extent that,
whether the defendant has perfected his title by adverse possession.
This point needs consideration in view of the fact that there was no
direct point framed in respect of limitation.
4 SA 282-2017
6. Another important point appears to be that all the three
plaintiffs were claiming possession of the suit property on the basis
of ownership and the fact that they have devolved the title from
husband of defendant No.3 and father of defendants No.1 and 2.
Plaintiff No.1 is the married daughter of plaintiff No.3 and deceased
Dhansing. She expired when the matter was before the Trial Court
itself. Her legal representatives were not brought on record and the
decree has been passed in favour of the plaintiffs. Learned Advocate
appearing for the appellant has relied on the decision in, Sheela and
Ors. vs. Central Bank of India and Ors., reported in 1998 (1)
Mh.L.J. 928, which is on the point that deletion of name of one of
the parties, who were contending joint and indivisible decree, then
the entire proceeding goes abated. This point is also therefore
required to be gone into and, therefore, case is made out to admit
the second appeal. Hence, second appeal stands admitted.
7. Following are the substantial questions of law : -
1) Whether the suit was within limitation ?
2) Whether both the Courts were justified in
negativing the defence taken by the present
appellants that they have become owners of the suit
5 SA 282-2017
property by adverse possession ?
3) Whether the Trial Court was justified in
decreeing the suit which was in favour of a dead
person and it ought to have been disposed of as
abated as whole ?
4) Whether interference is required ?
8. Issue notice to respondent no.2, returnable on 26-01-2022.
9. Call for record and proceedings ?
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
