Sangita W/O Laxmanrao Kawatkar vs Kamal W/O Vidyadhar Baraskar And ...
2021 Latest Caselaw 15214 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

                       WRIT PETITION NO. 215 OF 2020

         Sangita w/o Laxmanrao Kawatkar,
         Aged about 38 years,
         Occ. Agriculturist and household,
         R/o. Tembhurkheda, Tq. Warud,
         Dist. Amravati.                   PETITIONER
                                           (Ori. Plaintiff)
                ...Versus...

   1. Kamal w/o Vidyadhar Baraskar,
      Aged about 55 years, Occ. Household,

   2. Vinod s/o Vidyadhar Baraskar,
      Aged about 30 years,
      Occ. Agriculturist,
         Both R/o. Tembhurkheda, Tq. Warud,
         Dist. Amravati.

   3. Vidyadhar s/o Sahdevrao Baraskar,
      Aged about 60 years,
      Occ. Agriculturist,
      R/o. Dabha, Tq. Nandgaon                            RESPONDENTS
      Khadeshwar, Dist. Amravati.                         (Ori. Defendants)
 -----------------------------------------------
 Mr. P.R. Agrawal, Advocate for the Petitioner.
 Mr. S.G. Malode, Advocate for Respondent Nos. 1 & 2.
 -----------------------------------------------

                               CORAM : AVINASH G. GHAROTE, J.

DATED : 25th OCTOBER, 2021.

ORAL JUDGMENT :-

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                   Heard.

2. Rule, Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

Non appears for the respondent No. 3 though served.

3. The plaintiff/petitioner, filed a suit for declaration

and permanent injunction, that he is the lawful owner of the

suit property being Survey No.16/2, admeasuring 0.81 HR,

situated at Mouza Tembhurkheda, Taluka Warud, District

Amravati, on the basis of sale deed dated 28.02.2017 executed

by the defendant No.3 in his favour, where under, he was placed

in possession of the above said field. Further relief for

restraining defendant Nos. 1 and 2 causing any disturbance to

his possession was also claimed. In this suit, an application

under Order XXXIX Rule 1 and 2 was filed by the

plaintiff/petitioner at Exh.5.

4. The defendant Nos. 1 and 2, alongwith the written

statement also filed a counter claim claiming that on the basis of

a partition deed dated 27.06.2005, the defendant No. 2 was

given the ownership and the possession of the suit property and

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was in cultivating possession of the same. An application for

temporary injunction was also filed by the defendant Nos.1 and

2 at Exh.15 for restraining the plaintiff/petitioner, from

disturbing their possession over their suit property. The learned

trial Court by his order dated 11.04.2018 found that the

plaintiff/petitioner was in possession of the suit property on the

basis of the sale deed dated 28.02.2017 executed by the

defendant No.3 in his favour, and therefore, allowed Exh.5 and

rejected Exh.15.

against the order of learned trial Court dated 11.04.2018 was

allowed by the learned appellate Court, by rejecting the

application at Exh.5 and allowing the application at Exh.15 by

his judgment dated 07.12.2019. It is against this judgment, the

original plaintiff/petitioner has filed this petition.

6. Mr. Pravin Agrawal, learned counsel for the

plaintiff/petitioner submits, that the impugned judgment, does

not give any reasoning whatsoever for deferring with the

findings of the learned trial Court, regarding the possession of

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the suit property, on which ground alone the same cannot be

sustained. He further submits, that the sale deed dated

28.02.2017, categorically places the plaintiff/petitioner in

actual physical possession of the suit property in pursuance to

which, the mutation has also been effected in favour of the

plaintiff/petitioner, who is in cultivating possession of the same.

Insofar as, the document dated 27.06.2005 is concerned,

learned counsel submits, that the said document, cannot be

taken into consideration for two reasons, one that the said

document is an unregistered document and second, that the

defendant No.2, at the time of execution was minor, aged

around 17 years, and therefore, was in-competent in law to

have executed the same. The said document also does not

depict, that any person was representing the defendant No.2

who was a minor at that time. He also submits, that this

consequently affects the plea of defendant No.2 being placed in

possession of the suit property, as is being claimed incorrectly.

He submits, that there is no document on record to show that

the defendant No.2 was at any point of time in cultivating

possession of the suit property.

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7. Mr. Malode, learned counsel for respondent/

defendant Nos. 1 & 2 submits, that the husband of the

plaintiff/petitioner, was himself witness to the document dated

27.06.2005, and therefore, cannot claim ignorance of the right

being acquired by the defendant No.2 in the land of Survey

No.16/2. He submits, that the document dated 27.06.2005 was

brought into being in view of the fact that the mother of the

defendant No.2, who is the defendant No.1 in the suit, had

relinquished her rights in respect of the land of Survey No.17/1

at Mouza Jalu, which was in lieu of the fact that the defendant

No.2 was being given a right to Survey No.16/2. He further

submits, that the husband of the plaintiff/petitioner, was also

witness to this document too, and therefore, could not claim

ignorance of the same. He submits, that the learned appellate

Court has correctly relied upon both these documents to hold

that it was defendant No.2, who was in cultivating possession of

the suit field.

8. It is not in dispute, that the document dated

27.06.2005, which is claimed to be a partition deed, is an

unregistered document. It is equally not disputed, that the said

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document dated 27.06.2005, does not fall within the category

of a document which could be styled as a list of partition, as the

said document itself purports to create an interest and right of

the defendant No.2 in immovable property being Survey

No.16/2 and does not purport to recognize a pre-existing right.

The contention of Mr. Malode, learned counsel for the

defendant/respondent Nos. 1 & 2, that this document, has to be

construed as a deed of settlement, in view of the claim, that the

suit property was purchased by the defendant No.3, out of the

funds generated by sale of ancestral land, has to be considered,

in view of the fact, that the suit property has been purchased by

the defendant No.3 by a sale deed dated 04.07.1985, which

does not depict that any ancestral funds were used, rather on

the contrary it indicates, that it was the individual purchase by

the defendant No.3 and not otherwise, considering which, the

plea that the corpus for purchase of the suit property by the

defendant No.3 was from an out of the ancestral funds would

necessarily be a matter, which has to be tested on the basis of

the evidence which would have to be laid before the trial Court,

as there is no prima-facie material available for the same, except

for a plea raised by the defendant No.2 in that regard.

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9. The learned trial Court, in holding that the

plaintiff/petitioner was in possession of the suit property, has

relied upon the averments in the sale deed dated 28.02.2017

and the subsequent proceedings for mutation in which the

defendant Nos. 1 and 2 had raised an objection of being in

possession, which was negated by the learned Naib Tahsildar,

Warud by his order dated 02.06.2017, on the basis of 7/12

extracts which showed that from 2001 till 2017 it was the

defendant No.3 who was in cultivating possession of the suit

property. He also disbelieved the partition deed dated

27.06.2005 put forth by the defendant No.2 under which he

claimed to have acquired title to the suit property as well as

possession, on the ground that the said document was an

unregistered document, apart from which there was nothing on

record to indicate defendant No.2 to be in cultivating

possession. The order of the Naib Tahsildar, Warud has also

been confirmed by the learned Sub-Divisional Officer, Morshi in

appeal. Thus, prima-facie possession of the plaintiff/petitioner

over the suit property has been established on account of the

entries in the 7/12 extract of the defendant No.3 being in

cultivating possession of the suit property and the statement of

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the defendant No.3, that he has delivered possession thereof to

the plaintiff/petitioner. As against this, there is nothing on

record, except the document dated 27.06.2005 put forth by the

defendant No.2 to contend that he is in possession. The fact that

since 2005 till 2017, the defendant No.2 has not made any

attempt to get the revenue records corrected regarding his so

called claim for possession of the suit property, would also be an

indicator, which would substantiate the plea of the

plaintiff/petitioner, that the defendant No.2 was never in

cultivating possession of the suit property. That apart since at

the time of the execution of the document dated 27.06.2005,

the defendant No.2, was a minor, the competency of defendant

No.2, to enter into the document itself, comes into question, in

light of Section 11 of the Indian Contract Act, 1872 which

competency would be equally applicable in the matter of

execution of the document dated 27.06.2005.

10. The judgment of the learned appellate Court except

for the document dated 27.06.2005 does not consider any other

document nor does it give any other reason for holding that the

defendant No.2, was ever in cultivating possession of the suit

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property, considering which, the impugned judgment as passed

by the learned appellate Court, cannot be sustained, as it

ignores, the fact that the defendant No.2, was a minor at the

time of the execution of the document dated 27.06.2005. The

contention that the said document was in lieu of the defendant

No.1, relinquishing her right in Survey No. 17/1 at Mouza Jalu

also needs to be tested, in view of the fact, that in land

acquisition proceedings regarding the acquisition of the land of

Survey No.17/1, the defendant No.1, has claimed and received

compensation form the Land Acquisition Officer, for the

acquisition of land of Survey No. 17/1, which is reflected from

the judgment in reference in Land Acquisition Case

No. 49/2013 dated 23.11.2016, in which, the defendant No.1

has been held to be entitled to receive compensation of

Rs. 24,82,299/- in respect of the land bearing Gat No. 17/1

admeasuring 0.81 HR, situated at Village Jalu.

11. In view of the above, the judgment of the learned

appellate Court, clearly cannot be sustained in facts as well in

law. The same is therefore, quashed and set aside and the orders

passed by the learned trial Court below Exh.5 and Exh.15 is

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hereby restored.

12. Mr. Malode, learned counsel for respondent/

defendant Nos. 1 & 2, at this juncture, makes a request for

expediting the suit before the learned trial Court. Considering,

that the suit is of year 2017, the learned trial Court is requested

to decide the same expeditiously, within a period of 24 months

from today, which is needless to say, subject to both the parties

rendering co-operation to the learned trial Court in this regard

and not seeking unnecessary adjournments.

13. Needless to say, that any observations made in this

order shall not come in a way of learned trial Court, who shall

decide the same on its own merits.

14. Rule accordingly. No order as to costs.

(AVINASH G. GHAROTE, J.) S.D.Bhimte