Bombay High Court
Bibi Sugra Sayyed And Ors vs Mohammad Alli Abu Mulla And Anr on 2 February, 2021
Bench: C.V. Bhadang
206-sa-96-1994
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.96 OF 1994
1. Bibi Sugra Sayyed
2. Hakkani Hasan Sayyad
3. Rabhani Hasan Sayyad
4. Mushtak Hasan Sayyad
All R/o Guruwar Peth
at Post Miraj, Dist-Sangali
5. Gafar Kuthuddin Sayyad
R/o.15 Nagesh Peth, Pune ..Appellants
V/s.
1. Mohammad Alli Abu Mulla
R/o. 18, Kesarkar Peth, Satara
2. Ramjan Fakir Sayyad
R/o. 5/2481 Kalachowaki
Mah. Hsg. Board, 2nd Floor,
Bombay-33
Digitally signed
by Nilam
3. Majid Madar Shaikh
Nilam Kamble
Since deceased through heirs
Kamble Date:
2021.02.02
3(1) Basir Majid Shaikh
17:25:57 +0530
3(2) Rashid Majid Shaikh
3(3) Julekha Majid Shaikh ..Respondents
----
Ms.A.R. S. Baxi for the Appellant.
Mr.Rahul S. Kate a/w MrDigvijay S. Patil for Respondent Nos.1 and
2.
----
CORAM : C.V. BHADANG, J.
DATE : 02nd FEBRUARY 2021
JUDGMENT :
1. The challenge in this appeal is to the judgment and
decree dated 22nd August 1993 passed by the learned Additional
N.S. Kamble page 1 of 11
206-sa-96-1994
District Judge at Satara in Regular Civil Appeal No.93 of 1988. By
the impugned judgment, the First Appellate Court, while dismissing
the appeal filed by the appellants herein, has partly modified the
judgment and decree passed by the Trial Court dated 11 th September
1987 in Regular Civil Suit No.489 of 1984 enhancing the
compensation in lieu of the partition, from Rs.3,000/- to
Rs.10,000/- .
2. The brief facts necessary for the disposal of the appeal
may be stated thus :-
That the appellants (Original Plaintiffs) filed the
aforesaid suit against the respondents (Original Defendants) before
the learned Civil Judge Junior Division at Satra. The subject matter
of dispute happens to be land City Survey No.18 at Satara,
admeasuring 382 sq.meters. There is no dispute regarding the
identity of the said property.
3. The case made out in the plaint, is that the plaintiffs
have one half undivided share in the suit plot. It was contended
that the owners of the remaining half portion had illegally sold the
said portion to the defendant No.3 under a Sale Deed dated 17 th
April 1971. It was contended that subsequently the Defendant No.3
N.S. Kamble page 2 of 11
206-sa-96-1994
sold said portion to the defendant Nos.1 and 2 by separate Sale
Deeds dated 27th February 1975, for a consideration of Rs.3,000/-.
4. It appears that in the suit the appellants sought two
reliefs, firstly it was prayed that the appellants are entitle for
purchase of the said portion on pre-emption. Secondly, it was
prayed that the suit property be auctioned by metes and bounds.
5. The respondents-defendants contested the suit inter alia
on the ground that they are bona fide purchasers for value without
notice. It was contended that the defendant Nos.1 and 2 after their
purchase in the year 1975 had effected construction on the suit
property in which the Defendant No.1 has incurred an amount of
Rs.60,000/- while defendant No.2 incurred an amount of
Rs.40,000/-. It was also contended that the plaintiffs were aware of
the said transaction and did not object to the sale or construction till
the year 1984 when the suit came to be filed. It was thus contended
that on the principle of acquiescence and estoppel the plaintiffs were
not entitled to partition of the said property.
6. The learned Trial Court has framed as many as nine
issues. The parties led oral and documentary evidence. The learned
N.S. Kamble page 3 of 11
206-sa-96-1994
trial Court found that the respondents were bona fide purchasers for
value without notice. It was found that the claim as to the
preemption was barred by limitation. The learned trial Court
however, found that the plaintiffs had one half share in the suit
property. However for the reasons mentioned against Issue no.7 the
trial Court found that it would not be appropriate and equitable to
direct partition by metes and bounds, instead the learned trial Court
granted compensation of Rs.3,000/- vide the impugned judgment
and decree dated 11th September 1987 and also directed an inquiry
in future mesne profits.
7. Feeling aggrieved the appellants carried the matter
before learned District Judge. A perusal of the judgment of the
District Judge shows that the appellants did not seriously question
of refusal of the relief of preemption. Even the finding against
Issue No.4 wherein the trial Court had held that the Defendant
Nos.1 and 2 were bona fide purchasers for value without notice was
not seriously challenged. It appears that the main thrust of the
challenge was that once the trial Court found that the appellants
had one half share, the partition could not have been refused and in
substitution there of compensation could not have been granted. It
N.S. Kamble page 4 of 11
206-sa-96-1994
was also contended that the quantum of compensation granted was
inadequate.
8. In view of the said contentions the First Appellate Court
framed the following points for determination :-
POINTS
1. Whether the plaintiffs appellants prove that they
have half undivided share in the suit property ?
2. If yes, whether the plaintiffs appellant are
estopped by the principle of estoppel and
acquiescence?
3. If the plaintiffs are entitled for partition and
separate possession of their half share ?
4. What order ?
9. The First Appellate Court answered Point Nos.1 and 2 in
the affirmative and Point No.3 in the negative and enhanced the
compensation to Rs.10,000/-. The rest of the judgment and decree
passed by the Trial Court was confirmed. This is how the appellants
are before this Court.
N.S. Kamble page 5 of 11
206-sa-96-1994
10. On 31st January 1994 the present appeal was admitted
on the following substantial questions of law :-
"(a) Whether the First Appellate Court was justified in
denying the relief of partition and separate possession
to the appellant once it was held that appellants had ½
undivided share in the suit property ?
(b) Whether the First Appellate Court applied the
applicable principles of law while holding that the
appellants were estopped by the principles of Estoppel
and Acquiescence in respect of their claim for partition
and separate possession ?
(c) Whether finding of First Appellate Court on this
aspect is erroneous in law ?"
11. I have heard Ms.Baxi, the learned counsel for the
appellants and Mr.Kate the learned counsel for Respondent Nos.1
and 2. With the assistance of the learned counsel for the parties, I
have gone through the record.
12. The learned counsel for the appellants strenuously
urged that once both the Courts had concurrently found that the
appellants were entitled to one half share in the suit property, it was
not open for the Courts to have refused the relief of partition by
N.S. Kamble page 6 of 11
206-sa-96-1994
metes and bounds. The learned counsel pointed out that there is
still some part of the land which is lying vacant and the construction
made by the Defendant Nos.1 and 2 is not on the entire suit plot. It
was also pointed out that a map showing such open space was
tendered before the First Appellate Court in the appeal. It is
submitted that notwithstanding the alternate case as setup by the
appellants the Courts below were obliged to consider the main
prayer for partition and possession by metes and bounds. It is
submitted that the quantum of compensation granted is also
inadequate.
13. The learned counsel for the respondents has supported
the impugned judgment. It is submitted that both the Courts have
concurrently found that the respondents are the bona fide
purchasers for value without notice. It is submitted that it was
plaintiff's own alternate case, that in the event the partition by
metes and bounds is not possible, compensation may be granted. It
is submitted that the suit property was sold by the Defendant No.3
to the defendant Nos.1 and 2 in the year 1975 for a consideration of
Rs.3,000/- and even the suit was valued for Rs.3,000/-. It is
submitted that notwithstanding, this the Appellate Court taking note
of the rise in the prices of the movable property has enhanced the
N.S. Kamble page 7 of 11
206-sa-96-1994
compensation to Rs.10,000/-. It is submitted that in any event this
being a finding of fact no substantial question of law arises in the
appeal.
14. I have carefully considered the rival circumstances and
submissions made. As noticed earlier both the Courts have
concurrently found that the appellants have one half share in the
suit property so there is no dispute to that extent. Insofar as the
aspect of bona fide purchase by the Defendant No.3 and for the
matter of that the Defendant No.1 and 2 is concerned, the Trial
Court had framed a specific issue which is answered infavour of the
respondents. The First Appellate Court has noticed that the said
finding was not seriously challenged. In any event the record
discloses that there was a public notice issued by the Defendant
No.3 prior to the sale in the year 1975 and the Appellate Court has
noted that there was no objection raised in pursuance thereof. Thus
I do not find that any exception can be taken to the finding that the
respondents are the bona fide purchasers of the suit property for
value without notice. The only issue is whether after finding that
the appellants have one half share in the suit property the Courts
could have granted compensation instead of directing partition by
metes and bounds. In this regard it is significant to note that it was
N.S. Kamble page 8 of 11
206-sa-96-1994
the alternate case of the appellants themselves that in the event it is
not possible to direct partition by metes and bounds they be granted
compensation. This aspect has been noted by the Trial Court, as
well as the Appellate Court in paragraph No.19 of the judgment.
The First Appellate Court has also gone into the aspect of the
acquiescence and the fact that although the First Sale Deed was
executed in the year 1971 and the second was in the year 1975 after
which the construction was effected, the suit came to be filed only in
the year 1984. The First Appellate Court has also noted that the
Defendant No.1 has incurred an amount of Rs.60,000/- while the
defendant No.2 has incurred an amount of Rs.40,000/- on
construction and both these defendants were in possession of the
suit property, from the year 1975.
15. Although it was pointed out by Ms.Baxi the learned
counsel for the appellant that certain potion of the suit property was
lying vacant, I am afraid the said aspect has not come on the record
in the evidence. It was only after the arguments were concluded by
the First Appellate Court, that a map was sought to be tendered
across the bar showing that certain portion from the suit property
was lying vacant. It is apparent from the record that the production
of the said map at the appellate stage was not sought under Order
N.S. Kamble page 9 of 11
206-sa-96-1994
XLI Rule 27 of Civil Procedure Code. Thus there is no evidence to
show that any portion from the suit plot, is vacant and if yes the
extent thereof. Considering the circumstances, both the Courts have
found it to be inequitable to grant the prayer for partition. I do not
find that any exception can be taken to the finding so recorded, in
the facts of the present case.
16. Coming to the issue of quantum of the compensation, it
is necessary to note that in the year 1975 the suit property has been
shown to be sold for a consideration of Rs.3,000/-. Even when the
appellants filed suit in the year 1984 the suit was valued at
Rs.3,000/-. Still the First Appellate Court after taking note of the
rise in prices of the movable property, has conducted the exercise of
ascertaining the reasonable compensation which is apparent from
the observations in paragraph 21 of the appellate judgment. It is
necessary to state that although according to the appellants the
compensation granted is inadequate there is no specific claim made,
as to what should be the reasonable compensation, much less there
is evidence led in support of such amount of the reasonable
compensation. In such circumstances, the Appellate Court was left
with no alternative than to take upon the exercise on the basis of the
available material on record. The Appellate Court has found that
N.S. Kamble page 10 of 11
206-sa-96-1994
the entire plot was admeasuring 382 sq.meters and the half share of
the appellants came to 191 sq.meters i.e. about 2000 sq.ft. The
Appellate Court has found that the plot was a residential property
situated at a District place having two roads and therefore had
ascertained the market price in the year 1984 at Rs.5/- per sq.ft. and
has thus arrived at a compensation of Rs.10,000/-. This finding in
my considered view is a finding of fact based on whatever material
was available on record. Looked from any angle no exception can
be taken to the impugned judgment and decree passed by the Courts
below.
17. Thus the question of law framed at (a) and (b) above
are answered in the affirmative and the one at (c) is answered in the
negative. In the result, the Second Appeal is dismissed, with no
order as to costs.
Decree be drawn accordingly.
C.V. BHADANG, J.
N.S. Kamble page 11 of 11
