Bombay High Court
Pratap Amrut Patil Dead Through ... vs Bhagwat Baburao Patil And Others on 16 February, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
948 SECOND APPEAL NO.62 OF 2018
WITH CA/4110/2018 IN SA/62/2018
WITH CA/1492/2018 IN SA/62/2018
Pratap Amrut Patil (Died)
Through L.Rs. -
1 Dewkabai Pratap Patil,
Age 62 yrs., Occ. Household,
2 Ravindra Pratap Patil,
Age 44 yrs., Occ. Agri.,
Both are r/o K.C. Park Kanalda Naka,
Jalgaon, Dist. Jalgaon.
3 Vandanabai Lotan Patil,
Age 40 yrs., Occ. Household,
R/o Bilwadi, Tq. & Dist. Jalgaon.
4 Kailash Pratap Patil,
Age 37 yrs., Occ. Agri.,
R/o Bhadli (Kh), Tq. & Dist. Jalgaon.
... Appellants
... Versus ...
1 Bhagwat Baburao Patil,
Age 59 yrs., Occ. Labour,
2 Ramchandra Baburao Patil,
Age 56 yrs., Occ. Labour,
3 Yograj Baburao Patil,
Age 53 yrs., Occ. Labour,
4 Laxman Baburao Patil,
Age 50 yrs., Occ. Labour,
::: Uploaded on - 26/02/2021 ::: Downloaded on - 28/08/2021 11:27:23 :::
2 SA_62_2018
All are r/o Bhadli (Kh),
Tq. & Dist. Jalgaon.
... Respondents
...
Mr. P.P. Dhorde, Advocate for appellants
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 16th FEBRUARY, 2021.
ORDER :
1 Present Second Appeal has been filed by original plaintiff to
challenge the concurrent Judgment and Decree passed in Regular Civil
Appeal No.78/2018 by learned Principal District Judge, Jalgaon on
16.11.2016, thereby dismissing his appeal and confirming the dismissal of his
suit i.e. Regular Civil Suit No.461/2000 by learned 2nd Joint Civil Judge
Junior Division, Jalgaon on 17.12.2007.
2 Heard learned Advocate for the appellants. The original plaintiff
has expired during he pendency of the present appeal, and therefore, his
legal representatives have been brought on record. Unless the appellant
showed that substantial questions of law are arising in this case, it is not even
necessary to issue notice to the defendants/respondents.
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3 The learned Advocate appearing for the appellants has
vehemently submitted that both the Courts below have not considered the
point involved in the case properly by appreciating the evidence that was led
by the original plaintiff. A contrary finding was arrived at between the
learned Lower Court and the First Appellate Court on the point of res-
judicata. The learned Lower Court has held that in view of the earlier suit
i.e. Regular Civil Suit No.2/1994 filed by the plaintiff on the same ground,
dismissal thereof would amount to res-judicata, however, the learned First
Appellate Court held that since the evidence to that effect i.e. the pleadings
of the parties and the Judgments on the earlier round of litigation were not
produced on record, the present suit was not barred by the principle of res-
judicata. The said point was decided properly, however, both the Courts
erred in holding that the appellant has failed to prove exclusive ownership
and possession over the suit lands. In fact, one Goba was the original owner,
who had four sons and four daughters. There was a partition between them,
which was of course, oral partition and the suit properties i.e. land Gat
No.146/A (105/2A), Gat No.146/A (105/3A) and Gat No.28
(134/2E/2K/2G/2A.2/1) situated at Bhadli (Kh). The Mutation Entries are
appearing since 1994 and nobody has challenged those entries. Under such
circumstance, when there is proof of partition by way of revenue record, it
ought to have been held that the original plaintiff is the exclusive owner of
4 SA_62_2018
the suit property, and therefore, substantial question of law is arising in this
case. It was also further submitted that Civil Application No.4110 of 2018 is
filed for allowing the appellant to produce additional documents. If the
additional documents are allowed to produce, then it will change the
decision of both the Courts below. He, therefore, prayed for admitting the
Second Appeal and issuing notice to the respondents.
4 At the outset, as regards the Civil Application filed under Order
41 Rule 27 of the Code of Civil Procedure, 1908 is concerned, perusal of the
entire application would show that there is absolutely no mention, as to why
these documents could not be filed before the learned Lower Court when the
suit was pending. As regards the Mutation Entry dated 01.01.2016 is
concerned, though it is subsequent, it is in respect of subsequent events.
Unless it is shown that it has connection with the suit property, it cannot be
allowed. Further, even the Mutation Entry, that was taken in 1996 is tried to
be tendered now, which could have been definitely produced before the
learned Trial Court. In absence of any reason for not producing those
documents, which were available with the revenue authorities prior to
17.12.2007 and any such attempt to file it before the First Appellate Court till
the appeal came to be decided on 16.11.2016, that application cannot be
taken into consideration. In absence of any reason, the powers of the Court
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under Order 41 Rule 27 of the Code of Civil Procedure cannot be invoked to
allow the appellants to produce those documents on record.
5 As regards the issue in respect of res-judicata is concerned,
though the learned Trial Judge had held that the suit is barred by principle of
res-judicata, that findings has been reversed by the First Appellate Court and
it is answered in favour of present appellants and further the respondents
have not come before this Court to challenge the said findings. Therefore,
that point cannot give rise to a substantial question of law. Even if for the
sake of argument is it accepted that such point was raised by the defendants
before the Trial Court, but it appears that the learned Trial Court went on to
discuss the point only on the basis of the admissions given by the plaintiff.
No supporting documents were produced by the defendants to prove or
support their contention that the suit is barred by principle of res-judicata.
The learned Principal District Judge has considered all the aspects involved in
the point and has come to the correct conclusion that since the basic
document to arrive at a conclusion that the suit is barred by the principle of
res-judicata, it cannot be held that the suit is barred. At the costs of
repetition, it can be said that in order to prove that the suit is barred by the
principle of res-judicata, it will have to be proved by filing necessary
documents i.e. pleadings, written statement, Judgment. The concerned Court
6 SA_62_2018
cannot come to the said conclusion. It will have to be shown that the parties
were litigating under the same title in the earlier suit. The property/subject-
matter involved in the suit was the same.
6 Now, as regards the exclusive ownership claimed by the plaintiff
is concerned, it is his case that an oral partition had taken place somewhere
in 1952 and his father got the suit property in the said partition. He has not
examined anybody, who could have been present at the time when the said
oral partition had been taken place. Further, he has not given the details, as
to how many properties were there with the ancestor and how the partition
was effected in respect of those properties. No doubt, there appears to be an
admission by defendant No.1 that during the life time of his father oral
partition took place between the four brothers, but then he says that nobody
had given application to Talathi to get the names mutated as per the
partition. Further, it appears that he has also stated that he possessed land
Gat No.146/A and 146/B, plaintiff possess Gat No.245. Further, he says that
there is oral partition in respect of Gat No.146/A, 146/B and 288.
Thereafter, he says that there was a family arrangements. Defendants
examined the neighbouring land holders, who have specifically stated that
they had never seen the appellant, plaintiff in land Gat No.146/A and 146/B.
A possibility by preponderance of probability created that there might be a
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family arrangement, but both the Courts below have concurrently held that
there is no reliable evidence to support the fact pleaded by the plaintiff that
there was a partition and the suit lands were allotted to his father.
7 It appears that the plaintiff was very much relying upon the 7/12
extracts but the legal position as was pronounced in Gurunath Manohar
Pawaskar and others vs. Nagesh Siddappa Navalgund and others, AIR 2008
S.C. 901, wherein the Hon'ble Apex Court has held -
"A revenue record is not a document of title. It merely raises a
presumption in regard to possession. Presumption of possession
and/or continuity thereof both forward and backward can also be
raised under Section 110 of the Indian Evidence Act."
The principle enshrined in Section 110 of the Indian Evidence
Act is based on public policy. However, the evidence, that is, adduced on
record shows that the plaintiff has failed to prove his possession also.
Plaintiff wants to rely on the revenue records to claim his exclusive title. In
this case also reliance can be placed on the decision in Corporation of the
City of Bangalore vs. M. Papaiah and another, (1989) 3 SCC 612, wherein it
is held that -
"It is firmly established that the revenue records are not documents of
title, and the question of interpretation of a document not being a
document of title is not a question of law."
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8 Therefore, on the facts of the case, when both the Courts below
have given concurrent findings, it cannot be gone into by this Court under
Section 100 of the Code of Civil Procedure, which requires pure question of
law. Therefore, no substantial question of law is arising in this case,
requiring admission of the Second Appeal. It stands dismissed. Both the
Civil Applications are disposed of.
( Smt. Vibha Kankanwadi, J. )
agd
