Bombay High Court
Namdev Daulatrao Suryawanshi And ... vs Sanjay Raghunathrao Matlakute ... on 11 February, 2021
Bench: V. V. Kankanwadi
430-2019 & 593-2019-SA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.430 OF 2019
WITH
SECOND APPEAL NO.593 OF 2019
1. Namdev s/o Daulatrao Suryawanshi
Age: 67 years, Occu.: Agril.,
R/o Singnapur. Tq. & Dist. Parbhani
2. Daulat s/o Namdevrao Suryawanshi
Age: 28 years, Occu.: Agril.,
R/o Singnapur, Tq. & Dist. Parbhani ... Appellants
Versus
1. Sanjay s/o Raghunathrao Matlakute
Age: 48 years, Occu.: Nil.,
R/o Jagruti Colony, Parbhani
Tq. & Dist. Parbhani
2. Vitthal s/o Pandurang Khupse
Age: 55 years, Occu.: Agril.,
R/o. Borwand (Kh.),
Tq. & Dist. Parbhani
(deleted vide Order dated 06.03.2020) ... Respondents
..........
Mr. S. K. Chavan, Advocate for appellants.
Mr. K. P. Rodge, Advocate for respondent.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 11th February, 2021
ORDER :-
. Both the appeals have been filed by the same parties and the
subject matter i.e. the suit property involved in both the appeals is same
430-2019 & 593-2019-SA.odt
and therefore, it would be required to be dealt with by a common
judgment; though both the courts below have given separate judgments.
2. The appellants in both the cases are Plaintiffs' in Regular Civil Suit
No.364 of 2006 and defendants in Regular Civil Suit No.155 of 2007
before the Joint Civil Judge Senior Division, Parbhani; respondent No.1
is the original defendant and Plaintiff in the respective above cases.
Regular Civil Suit No.364 of 2006 came to be dismissed; whereas
Regular Civil Suit No.155 of 2007 came to be decreed, by the learned
Lower Court on 16.09.2011. Present appellants had filed Regular Civil
Appeal Nos.102 of 2011 and 101 of 2011 challenging the respective
judgment and decree before the learned Principal District Judge,
Parbhani. Both the appeals are came to be dismissed on 08.05.2019.
Hence, present appeals have been filed under Section 100 of Code of
Civil Procedure.
3. Heard learned Advocate Mr. S. K. Chavan for appellants in both
cases and learned Advocate Mr. K. P. Rodge for respondent in both cases.
4. It has been submitted on behalf of appellants in both the cases
that the appellants are the owners of agricultural land bearing Gut No.
491 to the extent of 1 H. 82 R. situated at village Signapur, taluka and
district Parbhani. They have purchased the same from original defendant
430-2019 & 593-2019-SA.odt
No.2. According to the appellants, no land was left with defendant
No.2 after the said sale in their favour. In spite of this position,
defendant No.2 had sold 13 R land from the same Gut number to
present respondent No.1. Both the courts below have held that the
present appellants have proved their title to the extent of 1 H 82 R land;
however, they erred in holding that defendant No.2 was the owner of
the remaining 13 R land from Gut No.491 and, therefore, he had every
right to sell it to defendant No.1. Both the Courts below erred in holding
that the present appellants are creating obstructions to the possession of
present respondent No.1 in respect of the remaining land and went on
to issue injunction against the present appellants. Appellants had
examined the Cadestral Surveyor P.W.4 Mohd. Moinoddin s/o Mohd.
Sharifoddin to prove the map of the suit land. The map clearly shows
that no land was left. Both the Courts below have wrongly concluded
that the appellants were admitting the fact that defendant No.2 was
owner of 1 H 95 R land from Gut No. 461 and, therefore, he had every
right to sell the remaining land to defendant No. 1. No positive evidence
was led by present respondent No.1 to prove the existence of said
remaining land from Gut No.491. Both the cases were tried by the same
judge, but evidence was recorded separately and, therefore, there
appears to be confusion. Substantial questions of law are arising in this
430-2019 & 593-2019-SA.odt
case and, therefore, the appeals deserve admission.
5. Per Contra, the learned Advocate appearing for respondent No.1
in both the cases supported the reasons given by both the Courts below
and submitted that defendant No.2 was admittedly owner of land Gut
No.491 to the extent of 1 H 95 R. Both the appellants had purchased
91 R land each. Thus, the total area which was purchased by them was
to the extent of 1 H 82 R. Naturally 13 R land remained with defendant
No.2. Defendant No.2 has his own land adjoining in the same Gut No.
491. Considering the small portion that was left with defendant No.2,
defendant No.1 purchased said remaining land. Just in order to grab the
remaining land, appellants had come with the case that no land was
remaining with defendant No.2. The appellants failed to prove their
contention in both the matters and, therefore, their suit has been
dismissed and the suit filed by present respondent No.1 came to be
decreed. No substantial question of law is arising in the circumstances
requiring admission.
6. It will not be out of place to mention here, that both the suits
were tried separately before the same judge, but decided on the same
date. In fact, when parties to the suit were the same, the property
involved or the disputed property was the same, the stand taken by both
430-2019 & 593-2019-SA.odt
the parties was the same; then it was not absolutely necessary for the
concerned Court to try those cases separately. The fact is required to be
noted that present appellants had filed Regular Civil Suit No.364 of
2006 on 04.12.2006; whereas present respondent No.1 had filed his
Regular Civil Suit No.155 of 2007 on 04.07.2007. It will not out of place
to mention here again that prior to the filing of his suit, respondent No.1
had already entered his defence in the suit filed by the present
appellants. Therefore, the question arises as to whether he could have
raised the same points and claim, by way of counter-claim in the suit
instituted by the present appellants. As regards the merits of the case are
concerned, it appears that the parties are not disputing that some
portion in Gut No.491 was owned by defendant No.2. He has sold 91 R
land each to present appellants before he had executed sale deed in
favour of respondent No.1. The appellants had examined measurer, who
had measured the land and the map was prepared. In the map it was not
shown, as per the contention of the appellants that, any land was left
with original defendant No.2. The question was in respect of the
location of the property of the disputed piece of land. It is, therefore,
required to be considered as to whether appellants were successful in
proving that location. Whether any negative burden can be placed on
the Plaintiff is a question. Therefore, taking consideration the facts,
430-2019 & 593-2019-SA.odt
evidence that is led; substantial questions of law are arising in this case.
Disappointing fact is that even the learned Principal District Judge also
went on to give two separate judgments, when in fact it was the
propriety to decide rights of parties in one judgment only.
7. Second appeals are Admitted.
Following are the substantial questions of law: -
1. Whether both the courts below were justified in reaching to
the conclusion that area measuring 13 R in Gut No. 491 belonging
to original defendant No.2 was still left after he had sold land to
appellants?
2. Whether the sale dated 30.07.2003 executed by defendant
No.2 in favour of defendant No.1 in respect of 13 R land from Gut
No. 491 is legal?
3. Whether Regular Civil Suit No. 155 of 2007 was proceeded
in ignorance of provisions of Section 10 of Code of Civil Procedure
when Regular Civil Suit No.364 of 2006 was already pending
before the same court, between the same parties and in respect of
same suit property?
4. Whether Regular Civil Suit No.155 of 2007 was barred by
Order 2 Rule 2 of Code of Civil Procedure, when the plaintiff
therein had already entered into his defence in Regular Civil Suit
No.364 of 2006 in the capacity as defendant No.2 and he could
have raised same issues and claimed relief by way of counter-
430-2019 & 593-2019-SA.odt
claim?
5. Whether both the Courts below were justified in giving two
separate judgments on the same day in both the matters?
6. Whether interference is required in the impugned judgment
and decree?
7. What is the effect of deletion of name of respondent No.2
(original defendant No. 2) from Second Appeal No.430 of 2019?
8. Issue notice to respondent No.1 in both the cases after admission
of second appeal. Learned Advocate Shri. K. P. Rodge waives notice.
9. Call record and proceedings with paper-book.
[SMT. VIBHA KANKANWADI, J.]
scm
