Bombay High Court
Kausalyabai Trimbak Yede vs Dashrat Ashruba Bavne And Ors on 7 October, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.642 OF 2012
DASHRATH ASRUBA BAWNE AND OTHERS
VERSUS
KAUSHALYABAI TRIMBAK YEDE
...
Mr. D.P. Deshpande, Advocate for appellants
Mr. N.L. Jadhav, Advocate for the sole respondent
...
WITH
SECOND APPEAL NO.416 OF 2013
KAUSHALYABAI TRIMBAK YEDE
VERSUS
DASHRATH ASRUBA BAWNE AND OTHERS
...
Mr. N.L. Jadhav, Advocate for the appellant
Mr. D.P. Deshpande, Advocate for respondent Nos.1, 2A, 3 to 6
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 13th AUGUST, 2021
PRONOUNCED ON : 07th OCTOBER, 2021
ORDER :
1 Both these appeals are arising out of the same Judgment and
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Decree, as they are the cross appeals. Second Appeal No.642 of 2012 has
been filed by original defendants to challenge the Judgment and Decree
passed in Regular Civil Appeal No.137/2009 by learned District Judge-1,
Beed on 03.03.2012, whereby their appeal came to be partly allowed. The
Judgment and Decree passed in Regular Civil Suit No.10/1988 on
31.08.2009 by the learned Civil Judge Junior Division, Patoda, Dist. Beed for
declaration came to be confirmed, however, the relief of injunction, which
was granted by the learned Trial Court, was set aside. Therefore, in this
appeal the present appellants are challenging the confirmation of the
declaration of the ownership of the plaintiff over the suit property. Whereas,
Second Appeal No.416 of 2013 is filed by the original plaintiff challenging
the said Judgment and Decree passed in Regular Civil Appeal No.137/2009
to the extent of setting aside the relief granted in respect of restraining the
defendants from obstructing the possession of the plaintiff over the suit land
by the learned First Appellate Court.
2 Present respondent-original plaintiff filed Regular Civil Suit
No.10/1988 before learned Civil Judge Junior Division, Patoda, Dist. Beed for
declaration of ownership and injunction. She had contended that she is the
owner of suit land bearing Sy.No.137/EE, Gat No.435 admeasuring 02 Acres
25 Gunthas and more particularly described in para No.1 of the plaint. The
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genealogy has been given in para No.2 of the Judgment of the learned Trial
Court and it appears that the defendant No.1, 2 and 3 are the uncles of
plaintiff. Plaintiff claimed that her father Laxman had share in the ancestral
land. There was oral partition between Laxman's legal representatives and
brothers of Laxman. 48 R land out of Sy.No.137/1 and 43 R land out of
Sy.No.137/5 was shown to the ownership of Shrirang, who was the brother
of the plaintiff and later on he also expired. After death of Shrirang, his as
well as plaintiff's mother Muktabai was shown as legal representative vide
Mutation Entry No.268 dated 07.07.1974. After death of Muktabai, plaintiff
is the owner of the said land. It was then contended that defendant No.2
purchased 1 Acre 16 Gunthas of land from Sy.No.137/E on 30.07.1970,
however, the boundaries have been falsely mentioned in the same. It is then
stated that on the same day defendant No.1 purchased 1 Acre 15 Gunthas of
land from Sy.No.137/E from Shrirang. However, when the consolidation
scheme was made applicable to the village, it has been wrongly recorded in
the name of defendant Nos.1 and 2. Defendant Nos.1 and 2 as well as
plaintiff had applied to get their names mutated in respect of their shares.
The Tahsildar did not take into consideration the plaintiff's right and by his
order dated 11.05.1987 asked her to get her right declared from Civil Court.
She has stated that she had taken Jawar crop in the suit land and the
defendants are restraining her from taking the said crop. Hence, she filed the
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suit.
3 Defendant No.4 in the written statement admitted that her father
had purchased the land on 30.07.1970, however, denied that plaintiff was
ever in possession of the suit land. According to her, the suit property was in
possession of Shrirang, who has sold that land to defendant No.1 and,
therefore, his name has been mutated vide Mutation Entry No.267. Plaintiff
is residing at Anjanwati. She never came to Waghira for cultivation and,
therefore, it cannot be said that she was possessing the suit land at any point
of time.
4 After hearing both sides and perusing the evidence that was
adduced by both the parties on record, the learned Trial Judge had come to
the conclusion that plaintiff was possessing the suit land on the date of the
suit. She has proved that she is the owner of the suit land and, therefore,
entitled to get relief of declaration as well as injunction.
5 As aforesaid, the original defendant Nos.1 to 4 filed Regular Civil
Appeal No.137/2009. After hearing both sides the learned First Appellate
Court held that the plaintiff is the owner of the suit property, however, she
was not in possession of the suit land on the date of the suit. Hence, she is
entitled to the relief of declaration only and not the injunction. Hence, both
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the parties have come before this Court by way of Second Appeal.
6 Heard learned Advocate Mr. D.P. Deshpande for appellants and
learned Advocate Mr. N.L. Jadhav for the sole respondent in Second Appeal
No.642 of 2012 and vice versa in Second Appeal No.416 of 2013. In order to
cut short, it can be said that they have argued in support of their respective
contentions.
7 At the outset, it can be said that as regards the relief of
injunction is concerned, there are contrary findings by both the Courts below
and, therefore, straightaway it can be said that it is giving rise to the
substantial question of law. The Trial Court has considered the fact that since
plaintiff is the owner of the suit property, in normal course she would be
entitled to the relief of injunction also. However, the fact had come on record
that defendant No.1 has sold out the suit property to defendant No.4 on
28.12.1992. It cannot be said that the title had got transferred because the
said sale deed was not executed by the real owner. Even though there is a
registered sale deed in favour of defendant No.4, it was held that since her
vendor was not a legal owner of the suit property, he could not have passed
title in favour of the defendant No.4. Then the connection has been stated
that since the plaintiff is the owner, it will have to be consequentially held
that the plaintiff is in possession and then the suit came to be decreed.
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However, the First Appellate Court has gone with the fact that though the
plaintiff is owner of the property, she has given admission in the cross that
the defendant No.4 is possessing the said land. Defendant No.4 is getting it
cultivated through her brother. That means, the oral evidence has been
relied. Whether the alleged admissions could have been taken into
consideration in the perspective, they have been interpreted by the First
Appellate Court, is required to be considered.
8 Under such circumstance, the case is made out to admit both the
Second Appeals, as they are giving rise to substantial questions of law.
Second Appeals stand admitted. Following are the substantial questions of
law :
1) Whether the learned First Appellate Court was justified in
reversing the findings of the Trial Court regarding possession of
plaintiff over the suit land ?
2) Whether plaintiff was the owner of the suit property ?
3) Whether the plaintiff could have been held to be in
possession of the suit property on the date of the suit ?
4) Whether the entries in the 7/12 extract would be
sufficient proof for possession as well as ownership ?
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9 Issue notice to the respondents in both the appeals. Respected
Advocates for the respondents in both the appeals waive the service.
( Smt. Vibha Kankanwadi, J. )
agd
