Bombay High Court
Sanmitra Shaskiya Karmachari ... vs Vitthal Abaji Hake Died Thr Lrs ... on 24 November, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.135 OF 2013
WITH
CIVIL APPLICATION NO.668 OF 2019
Sanmitra Shaskiya Karmachari
Bhadekaru Grih Nirman Sahakari
Sanstha Maryadit, Ambajogai
Through its Secretary = APPELLANT
(Orig.Plaintiff)
VERSUS
1) Vitthal s/o Abaji Hake
Died through his L.rs. -
1/1) Sau.Sheshabai w/o Vikram
Shelke and Ors. = RESPONDENT/S
(Orig.Defendants)
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Mr.Milind M.Patil-Beedkar,Advocate for Appellant;
Mrs.MA Kulkarni, Advocate for Resp.Nos.1/1 to 1/5;
Mr.SS Kulkarni, Adv.for Resp.Nos.2 & 3 (Absent)
-----
CORAM : SMT.VIBHA KANKANWADI,J.
RESERVED ON : 03/09/2021
PRONOUNCED ON : 24/11/2021
PER COURT :-
1. Present appeal has been filed by
Appellant-original plaintiff, challenging
concurrent judgments and decrees. Present
appellant-plaintiff had filed Regular Civil Suit
No.397/1985 before Joint Civil Judge, Junior
Division, Ambejogai, District Beed, for declaration
and perpetual injunction. The said suit came to be
dismissed on 15.9.1994. Regular Civil Appeal No.
190/1994 was dismissed by learned District Judge-3,
Ambejogai, District Beed on 9.8.2012. Hence, this
Second Appeal.
2. Heard learned Advocates appearing for the
respective parties.
3. It has been vehemently submitted on
behalf of the appellant that the plaintiff is a
registered society, which had purchased 1 acre of
land from defendant No.1, which was part of Survey
No.367 situated at Ambejogai. Sale-deed was
executed on 24.3.1970 for a consideration of Rs.
5,000/-. Proper procedure was adopted by the
plaintiff-society to purchase the land. In fact,
after purchasing the land, the plaintiff had made
an application to Talathi and got its name mutated
to the suit land. Thereafter, it has also made an
application to District Inspector of Land Records
(DILR), Beed for getting the land measured. The
basic purpose, for which the land was purchased,
was to divide it into small pieces of plots and to
prepare layout plan for development. Thereafter,
even the layout plan was sanctioned by Town
Planning authority of Ambejogai on 26.10.1971. The
plaintiff is not disputing that another society
viz. Bahar society, had purchased 4 acres of land
on 11.2.1969 from another person by name
Mr.Padalkar, who was declared a tenant in respect
of 4 acres of land. Now, the dispute is towards
the northern boundary. There is compromise between
defendant No.1 and said Bahar society and the land
is given to Bahar society. When defendant No.1
himself had entered into the sale-deed with the
plaintiff, he cannot now challenge ownership of the
plaintiff over said 1 acre of land, which he had
sold to the plaintiff. However, the defendants
challenged the plaintiff's possession as well as
ownership on 1.8.1985 and, therefore, the suit was
filed. The learned Trial Judge has held that the
plaintiff has proved the title in respect of 1 acre
of land, however, wrongly held that the plaintiff
is not in lawful possession. It was then held that
the land shown and described in the plaint map is
not identical with the piece of land purchased by
the plaintiff. In spite of this, the suit came to
be dismissed. The first Appellate Court wrongly
held that the plaintiff has failed to prove the
location of the suit property. In fact, if there
was dispute regarding location of the property, it
could have been brought on record, by way of Court
Commissioner, as to what is the exact location.
Without proper application of mind, the first
Appellate Court has rejected the claim of the
plaintiff and simply concurred with the findings
given by the Trial Judge and, therefore,
substantial questions of law are arising in this
case.
4. Per contra, learned Advocate for
Respondent Nos.1/1 to 1/5, vehemently submitted
that the High Court is not required to re-
appreciate the evidence of Cadastral Surveyor in
the Second Appeal. In fact, the plaintiff had not
challenged the compromise decree that was passed
between defendant No.1 and Bahar society though the
plaintiff was a party to that suit. Further, the
plaintiff society cannot be said to be an
agriculturist. The suit property that was sold to
the plaintiff was received by defendant No.1 in his
capacity as a protected tenant under the then
Hyderabad Tenancy and Agricultural Lands Act and,
therefore, what has been granted to the defendant
is a restricted ownership. He could not have
entered into any sale transaction with the
plaintiff and, therefore, both the Courts below
were justified in not giving findings in favour of
the plaintiff.
5. It is to be noted that the learned
Advocate appearing for the appellant has taken this
Court through evidence that has been recorded by
the Trial Court and certain submissions were made
as regards authenticity of the map drawn by the
D.I.L.R. We need not go into the said aspect in
detail at this stage. What is required to be seen
here is, whether substantial questions of law, as
contemplated under Section 100 of CPC, are involved
in the present case.
6. Taking into consideration the contents of
the written statement, it is to be noted that the
defendant had come with a case that he was declared
to be the protected tenant under the Hyderabad
Tenancy and Agricultural Lands Act in respect of
the land admeasuring 4 acres and 30 gunthas out of
Survey No.367. He had then paid price to its
original owner and according to him, he had become
an exclusive owner and possessor. Another
person,by name Tulshiram Naroba was tenant to the
extent of 4 acres and 28 gunthas from the same
survey number. He was also declared as a tenant
and then he purchased that portion of land. He had
sold the said land to Bahar housing society.
However, there was dispute between Bahar Housing
society and defendant No.1 in respect of 12 gunthas
of land and, therefore, RCS No.207/1970 was filed
against the present defendant No.1 and the
plaintiff by said Bahar society. The defendant
further contends that he was in need of money and,
therefore, agreed to transfer 1 acre of land to one
Ramrao Kulkarni, who was secretary of the plaintiff
society. According to him, said Ramrao Kulkarni
got sale-deed executed on 24.3.1970. According to
the defendant, there was no controversy in RCS No.
297/1970 regarding the dispute between the
plaintiff and deft.No.1 in this case. However,
then, deft.no.1 admits execution of the sale-deed.
Then the learned Trial Judge has held that the
plaintiff has proved its title to 1 acre of land
and also that the plaintiff had legal right in
respect of acquisition proceedings initiated by the
Municipal Council. In spite of that, the learned
Trial Judge says that the plaintiff has failed to
prove its lawful possession over the suit land.
Important point to be noted is that, defendant No.1
neither challenged that sale-deed nor sought any
kind of relief against the plaintiff at any earlier
point of time. Then question arises as to whether
defendant No.1 would have been permitted to lead
evidence contrary to the contents of his sale-deed
on the point of possession. It appears that both
the Courts below have not considered the dispute
from that angle. It has been held that location of
the suit property is not proved. However, we
cannot forget that the said property was got
measured by the plaintiff through D.I.L.R. and
thereafter even lay-out plan was sanctioned by the
Municipal authorities. Both these acts contemplate
site-visits by the concerned authorities. If there
would have been any changes or contradictions, then
they would have come on record at that time itself.
When necessary documents appears to have not been
considered in proper perspective, then definitely
substantial questions of law are arising in this
case, requiring admission of the Second Appeal.
7. Hence, the Second Appeal stands admitted.
Following are the substantial questions of law, -
i. Whether both the Courts below
were justified in holding that the
plaintiff-society has failed to prove the
location of the suit property though they
had held that the plaintiff had proved
title of the suit property ?
ii. Whether the defendant could have
allowed to adduce evidence on the point
of possession contrary to the contents of
the sale-deed executed by him in view of
Section 92 of the Indian Evidence Act ?
iii. Whether interference is required
?
8. Issue notice to the respondents, after
admission of the Second Appeal. Learned Advocate
Mrs. MA Kulkarni waives notice for Respondent Nos.
1/1 to 1/5. Since Advocate Mr. SS Kulkarni
appearing for Respondent Nos.2 and 3, was absent,
issue notice to Respondent Nos. 2 and 3, returnable
on 12.1.2022.
9. R and P is already called.
10. CA No.668/2019 filed by the applicant-
appellant, under Order XLI Rule 27 of CPC, to be
heard along with the Second Appeal, as the
applicant wants to file certified copies on record.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
