Bombay High Court
Laxman Bansi Awasthi (Died) Lrs. ... vs Sundarprasad Sureshparasad ... on 30 January, 2021
Bench: V. V. Kankanwadi
(1) SA No.32/2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.32 OF 2021
1) Laxman s/o Bansi Awasthi (Died)
Through his L.Rs. -
Heeraprasad w/o Laxman Awasthi
and another. = APPELLANTS
(Orig.Plaintiff)
VERSUS
1) Sundarprasad s/o Sureshprasad
Awasthi and Ors. = RESPONDENTS
(Orig.Defendants)
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Mr.RD Biradar, Advocate for Appellant/s.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 30th January, 2021.
PER COURT :-
1) Present appeal has been filed by the legal
representatives of original plaintiff to challenge the
concurrent findings of both the Courts below. Original
plaintiff Laxman had filed the suit for declaration and
permanent injunction before Civil Judge Senior
Division, Latur; bearing Special Civil Suit No.875 of
2012. It was dismissed by learned Joint Civil Judge,
Senior Division, Latur on 30-11-2016. The said judgment
and decree was challenged by the legal representatives
of the plaintiff by filing Regular Civil Appeal No.42
of 2017. It is also dismissed by learned District
Judge-1, Latur on 07-10-2019 on merits. Hence this
Second appeal.
2) The Plaintiff claimed that he is the owner of
land bearing Gat No.127 admeasuring 6 H 38 R situated
at village Mahapur, Tal & Dist. Latur. It is his
(2) SA No.32/2021
ancestral property and after his father's death in 1993
and death of mother subsequent to that, a notice was
issued by Talathi for effecting mutation on 23-01-2007.
Defendant Nos.2 and 3 are real brothers. Defendant No.1
is son of defendant No.2. Defendant No.1 is in military
and posted in Jammu-Kashmir. Defendant Nos.2 and 3 stay
separately at Harwadi. They have no concern with the
suit property, however, they got their names mutated
vide M.E. No.654 to the suit property on 24-08-2000
with the help of Talathi. The plaintiff came to know in
February 2007 about the sale-deed executed on 04-05-
2005 by defendant Nos.2 and 3. Plaintiff's son Hira had
filed Special Civil Suit No.33 of 2007 for declaration
and injunction; however, it was withdrawn on 25-06-2007
due to the promises given by defendant No.2. In fact,
the plaintiff was brought by defendants by
misrepresentation and fraud under the pretext of
medical treatment and then the sale-deed was got
executed. The plaintiff has not received any
consideration at that time. He is still owner of the
suit land.
3) The Defendants resisted the suit by filing
written statement. They denied all the allegations. The
plaintiff has sold the suit property to defendant No.1
for legal necessity and received the consideration of
Rs.2,00,000/-. They possess the suit property and
cultivate it since the date of sale-deed. The legal
representatives of the plaintiff have executed
relinquishment deed on 17-10-2006. Plaintiff Mangalbai
has sold other lands to defendant No.1 on the same day
to defendant No.1. Further she has also transferred
lands to other persons on 02-08-2005. The suit is
barred by principle of res-judicata. The plaintiffs had
the intention to shift to another village and,
(3) SA No.32/2021
therefore, they have disposed of their entire property.
4) Both the parties have led oral as well as
documentary evidence. As aforesaid, the suit as well as
appeal came to be dismissed.
5) Heard learned Advocate Shri R.D. Biradar for
the appellants. Unless the appellants show that
substantial questions of law are arising in the appeal,
it is not necessary to issue notice to respondents.
Perused the impugned judgments and decrees as well as
other documents on record.
6) It has been submitted on behalf of the
appellants that both the Courts below have not
appreciated the evidence properly. The defendants had
got the sale-deed dated 04-05-2005 executed by playing
fraud on the original plaintiff. The said sale-deed was
without consideration and, therefore, void ab initio.
Suit property was the ancestral land of the plaintiff
and, therefore, original plaintiff alone had no
authority to sale the land. Proper procedure was not
adopted while effecting the mutation entry. Both the
Courts below failed to consider the evidence that
original plaintiff was taken, under the pretext of
giving medical treatment, to Latur and then sale-deed
has been got executed from him. Substantial questions
of Law are arising in this case and, therefore, he
prayed for admitting the appeal and issuing notice to
the respondents.
7) At the outset it can be seen that the sale-
deed dated 04-05-2005 is a registered sale-deed and,
therefore, it has certain presumptions. Burden was on
the plaintiffs to rebut those presumptions. There is
(4) SA No.32/2021
due endorsement on the sale-deed at Ex.32 by Sub-
Registrar. It pre-supposes that the said authority had
asked those mandatory questions to the original
plaintiff regarding his intention to sell the land and
receipt of consideration as stated in the document. No
evidence has been adduced in rebuttal to disprove those
endorsements. Both the Courts below, after scanning the
evidence of PW 6 Dr. Bhoite, have come to the
conclusion that plaintiffs have failed to prove that
original plaintiff Laxman was simpleton person and was
any way suffering from mental illness of any kind.
There is no necessity to take a contrary view on that
point. Plaintiff No.2 Mangalbai has admitted that she
and her brother have sold out all the pieces of land,
which were about 20-25 in numbers. They know the
procedure at Sub-Registrar's office. Therefore, there
was no substance in the allegations that the said sale-
deed Ex.32 was got executed by playing fraud.
8) In fact the suit land is Gat No.127
admeasuring 6H 38 R; however PW Mangalbai has admitted
that it belonged to common ancestor Hiraprasad. He had
two sons, i.e. Bansiprasad and Sundarprasad. The
plaintiffs are legal heirs of Bansiprasad and defendant
No.2 and 3 are heirs of Sundarprasad. Sundarprasad
expired when defendant Nos.2 and 3 were minors. The
land, therefore, stood in the name of Bansiprasad.
Northern portion of the said land was given in 1979 to
defendant Nos.2 and 3 and they are cultivating it
independently since then. Therefore, the plaintiffs can
not claim that the entire land was their ancestral
land.
9) The plaintiffs had failed to prove their
ownership over the suit land and then the sale-deed
(5) SA No.32/2021
Ex.32 was got executed from Laxman by playing fraud.
Hence, the suit as well as the appeal were rightly
dismissed. Detailed analysis of the evidence, adduced
by the parties, has been made by both the Courts below.
Law points involved have also been properly dealt with.
Under the said circumstance, no substantial question of
law is arising in this appeal, as contemplated under
Section 100 of the Code of Civil Procedure, requiring
admission. Hence, the Second Appeal stands dismissed at
the threshold.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
