Bombay High Court
Bajirao Girjaji More vs Bhima Yadhav Thorat And Ors on 15 March, 2021
Bench: Anil S. Kilor
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.163 OF 2018
Bajirao S/o Girjaji More,
Age-76 years, Occu:Pensioner/Agriculture,
R/o-Bhagur, Tq-Vaijapur,
Dist-Aurangabad
...APPELLANT
(Orig. Plaintiff)
VERSUS
1) Bhima S/o Yadav Thorat,
Age-Major, Occu:Agriculture,
R/o-Bhagur, Tq-Vaijapur,
Dist-Aurangabad,
2) Padmabai W/o Bhima Thorat,
Age-Major, Occu:Agriculture,
R/o-Bhagur, Tq-Vaijapur,
Dist-Aurangabad,
3) Genu Fakira More,
Age-Major, Occu:Agriculture,
R/o-Bhagur, Tq-Vaijapur,
Dist-Aurangabad,
4) Kaka S/o Ambudas More,
Age-Major, Occu:Agriculture,
R/o-Bhagur, Tq-Vaijapur,
Dist-Aurangabad.
...RESPONDENTS
(Orig. Defendants)
...
Mr.Rahul O. Awasarmol Advocate for Appellant.
...
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CORAM: ANIL S. KILOR, J.
DATE : 15th MARCH, 2021
ORAL ORDER :
1. The challenge raised in the present appeal is to the
Judgment and decree dated 19th November 2016 passed by the
learned Adhoc District Judge, Vaijapur, District-Aurangabad, in
Regular Civil appeal No. 52 of 2015, maintaining the Judgment
and decree passed by the learned Civil Judge, Senior Division,
Vaijapur in Regular Civil Suit No. 466 of 2011, dated 11 th March
2015, dismissing the suit for declaration of ownership in respect
of agricultural land admeasuring about six acres out of Gut No.
226, situated at village Bhagur, Tehsil-Vaijapur, District-
Aurangabad, and further declaration that the sale deed bearing
registration No. 2491/1997 dated 13th June 1997 and that of
bearing registration No. 2985/2010 dated 11th June 2010
executed in respect of suit land as void and not binding on the
plaintiff.
2. The brief facts of the present case are that (parties
shall be referred to as per their original status in the suit), it is
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the case of the plaintiff that one Nanasaheb Saluba More had
executed an agreement of sale in respect of suit land on 6 th June
1975 in favour of the mother of the plaintiff, namley, Vithabai
Girjaba More for consideration of an amount of Rs.2,400/- on
stamp paper of Rs.3/-. The consideration amount of Rs.2400/-
was paid in three installments i.e. Rs.1000/- on 6 th June 1975,
Rs.900/- on 6th September 1976 and Rs.500/- on 22 nd
September 1976. The possession of suit land was delivered to
the mother of plaintiff on the date of execution of agreement of
sale. On 13th June 1997 Nana Saluba More had executed a
registered sale deed bearing No. 2491/1997 in respect of suit
land in favour of Raju Bhimrao Thorat and Vijay Bhimrao Thorat
(sons of defendants No. 5 and 6) and Balu Rambhau Thorat and
Ashok Rambhau Thorat i.e. defendant No. 7 (both nephews of
defendants No. 5 and 6). The suit land is restricted land and
therefore, the requisite permission of Collector, Aurangabad was
required to be obtained for the said sale deed. However, the said
sale deed was executed without obtaining the requisite
permission of the Collector, Aurangabad. The defendant No. 7
had alienated 76 R land out of suit land to defendant No. 6 by a
registered sale deed bearing No. 2985/2010 dated 11 th June
2010. Defendants No. 8 and 9 have signed aforementioned both
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sale deeds even they being acquainted with the fact of execution
of agreement of sale dated 6th June 1975.
3. It is the further case of the plaintiff that mother of
the plaintiff was in possession of suit land from the date of
execution of agreement of sale dated 6 th June 1975. After the
death of mother of plaintiff, the plaintiff has continuously been in
possession of suit land. It is the case of the plaintiff that
aforementioned sale deeds are invalid and therefore, the
defendants have no right, title and interest in the suit land.
However, the defendants are trying to obstruct the possession of
plaintiff of the suit land. He, therefore, filed suit for declaration
and injunction on the basis of title.
4. The suit was dismissed by the learned trial Court vide
Judgment and decree dated 11th March, 2015. The plaintiff
feeling aggrieved by the said Judgment and decree, preferred an
appeal vide Regular Civil Appeal No. 52 of 2015 before the Ad-
hoc District Judge at Vaijapur, District-Aurangabad. The learned
lower appellate Court dismissed the appeal vide Judgment and
decree dated 19th November 2016, which is under challenge in
the present matter.
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5. Heard learned counsel for the appellant. He submits
that three witnesses were examined in support of the transaction
which was carried out between the mother of the plaintiff and
the original owner of the suit land. It is submitted that all the
three witnesses have supported the case of the plaintiff that
there was an oral agreement between mother of the plaintiff and
the vendor on 6th June 1975. However, on a specific query put to
the learned counsel for the appellant about the age of all the
witnesses on the date of agreement, he was not able to answer
the said query, as no material has been brought on record by the
plaintiff in this regard.
6. Moreover, there is no dispute that Regular Civil Suit
No. 117 of 1998 filed by the mother of the plaintiff against the
owner - Nana Saluba Thorat and others, including the
defendants in this matter for declaration and injunction came to
be dismissed on 15th April 2004 and the first appeal arising out of
the same, namely R.C.A. No. 111 of 2004 came to be dismissed
on 30th November, 2005.
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7. It is also not disputed that the plaintiff alongwith his
sisters and nephew had also filed another civil suit bearing
R.C.S. No. 342 of 2004 against Nana Saluba More and others,
including present contesting defendants for specific performance
of contract, which also came to be dismissed on 13 th March
2009.
8. The present suit is the third attempt to seek
declaration in respect of the suit property.
9. In view of the above observations, I do not find any
substantial question of law involved in the present matter.
Accordingly, Second Appeal is dismissed.
[ANIL S. KILOR, J.]
asb/MAR21
