Bombay High Court
Bhavani Lakhamasi Bhate vs Sahebrao Lala Desale And Ors on 15 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.376 OF 2012
WITH
CIVIL APPLICATION NO.7912 OF 2021
BHAVANJI LAKHAMASI BHATE
VERSUS
SAHEBRAO LALA DESALE AND OTHERS
...
Mr. U.S. Malte, Advocate for the appellant
Mr. S.T. Mahajan, Advocate for respondent Nos.1 to 3
Mr. B.V. Virdhe, AGP for the respondent No.6
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 31st AUGUST, 2021
PRONOUNCED ON : 15th SEPTEMBER, 2021
ORDER :
1 Present appeal has been filed by the original plaintiff challenging
the Judgment and Decree passed by learned Adhoc District Judge-1, Amalner,
Dist. Jalgaon in Civil Appeal No.22/2006 dated 06.09.2008, thereby allowing
the appeal filed by the respondent Nos.1 and 2 herein and thereby dismissing
the suit filed by the present appellant-original plaintiff.
2 SA_376_2012
2 Present appellant-original plaintiff had filed Regular Civil Suit
No.52/2004 before Civil Judge Senior Division, Amalner for cancellation of
sale deed and possession. The said suit came to be partly decreed on
25.04.2006. The original defendant Nos.1 and 2 had filed the said Civil
Appeal No.22/2006, which came to be allowed by the First Appellate Court.
Hence, this Second Appeal by the original plaintiff.
3 Heard learned Advocate Mr. U.S. Malte for the appellant, learned
Advocate Mr. S.T. Mahajan for respondent Nos.1 to 3 and learned AGP Mr.
B.V. Virdhe for the respondent No.6.
4 It has been vehemently submitted on behalf of the appellant that
the First Appellate Court has taken a perverse view while allowing the appeal
filed by the original defendant Nos.1 and 2. The appreciation of evidence as
well as consideration of law point suffers from legality, when it was properly
and legally considered by the Trial Court. The plaintiff had specifically come
with a case that the suit property was the joint family property of the plaintiff
and defendant Nos.3 to 5 and one another brother by name Somchand.
Their father was karta of the family. In the year 1970 their father Lakhamasi
borrowed amount of Rs.1,350/- from one Ratanlal Hiralal Jain. Father could
not repay the loan and, therefore, Ratanlal had instituted Regular Civil Suit
No.20/1973 against plaintiff, defendant Nos.3 to 5 and other family
3 SA_376_2012
members. That suit was decreed and the legal heirs of Lakhamasi were
directed to pay the amount along with interest. When the said decree was
put to execution in Regular Darkhast No.26/1976, the suit property CTS
No.79/3 and other four blocks out of CTS No.79/2 were attached. Except
the plaintiff, no other family member came forward to save the property and,
therefore, plaintiff had deposited amount from his salary to the tune of
Rs.2,676/- and saved the suit property as well as another house. According
to the plaintiff, since other family members have not come forward, they
have lost their right in the suit property and he has become sole owner of the
suit property. It is stated that he leased out the suit plot to defendant No.1
on monthly rent in 1978. In the meantime, the defendant No.1 had
approached the Court for seeking relief to decide the ownership over the suit
plot and on the other hand, the plaintiff had instituted Regular Civil Suit
No.240/1987 for possession and arrears of rent, wherein, the defendant No.1
had filed an application for fixation of fair rent. It is further fact that the said
suit i.e. Regular Civil Suit No.240/1987 was dismissed, the First Appeal filed
by him was also dismissed and now that matter is subjudice before this
Court. Thereafter, the defendant Nos.3 to 5 executed sale deed of their
undivided share in the suit plot to defendant Nos.1 and 2 on 15.04.2002.
Plaintiff protested the said sale deed by moving an application to defendant
No.6, but no cognizance was taken. Hence, the suit for cancellation of that
4 SA_376_2012
sale deed was filed. The learned Lower Court though held that the plaintiff
has failed to prove that the suit property is his self acquired property; yet, it
was held that the defendant Nos.3 to 5 have illegally sold the suit property to
defendant Nos.1 and 2. It was also held that the defendant Nos.1 and 2 are
not the bona fide purchasers for value without notice. Under such
circumstance, when the evidence was properly scanned by the learned Trial
Judge, it ought not to have been disturbed by the First Appellate Court and,
therefore, substantial questions of law are arising in this case.
5 Per contra, the learned Advocate appearing for respondent Nos.1
to 3 supported the reasons given by the First Appellate Court for allowing the
appeal and dismissal of the suit. Learned AGP Mr. B.V. Virdhe also submitted
that no substantial questions of law are arising in this case.
6 At the outset, the facts are almost not disputed. Even the
plaintiff himself is coming with a case that his father had taken loan and in
that proceedings against him as well as other legal heirs left by his father, the
suit property and another property was attached. Plaintiff deposited the said
amount under execution. Naturally, thereafter the properties, those were
attached, would have been released. Here, the plaintiff has not come with a
case that in the proceedings of execution of the said decree, the suit
properties were put to auction and then in the auction put by Court he has
5 SA_376_2012
purchased those properties. On the contrary, he comes with a case that he
deposited the amount and then the properties have been released. Under
such circumstance, it cannot be said that by mere depositing of the loan
amount, which was then due of his father, he alone would become owner of
the suit property and the other property. At the most, we can say that one of
the legal heirs of Lakhamasi has done his pious obligation. At the most, he
could have got it recovered from the other heirs to the extent of their share.
But then he cannot become absolute owner of the suit property only on the
basis of deposit of that decreetal amount in the execution proceedings and,
therefore, both the Courts below have correctly held that suit property is not
the self acquired property of the plaintiff. Conversely, all the legal heirs of
Lakhamasi would get their respective shares in the suit property as well as
the another property, that was released from the attachment.
7 Defendant No.1 was the person, according to the plaintiff,
inducted by him as tenant in the year 1978. Though he might have inducted;
yet, taking into consideration the fact that the property belong to the entire
Joint Hindu Family, he cannot say that he alone is the landlord of the
premises, which were let out to defendant No.1. Further, he had instituted
suit for eviction and arrears of rent against defendant No.1. That suit was
dismissed. His First Appeal was also dismissed and then it is said that the
6 SA_376_2012
matter is subjudice before this Court. That requires no comment in this
Second Appeal.
8 The further fact is that the defendant Nos.3 to 5 have executed
sale deed in favour of defendant Nos.1 and 2 on 15.04.2002 and it is an
admitted position that it is to the extent of their undivided share. Now, it is
also to be seen that according to the plaintiff, he had let out the suit plot to
defendant No.1. He has not come with a case that a specific boundary within
the plot was specified when he let out that piece of land. When the
defendant Nos.3 to 5 had right to sell their undivided share in the suit
property, it cannot be said that the said sale deed is void. Plaintiff is not
party to that sale deed and, therefore, he cannot get it cancelled, unless he
shows that there is some legal obstruction in execution of that sale deed. As
aforesaid, when defendant Nos.3 to 5 were the joint owners of the suit
property and they had the right to sell their undivided share, the appropriate
remedy for the plaintiff would have been in some other legal provisions and
not by way of cancellation of sale deed and possession. The First Appellate
Court has rightly considered all these aspects. The factual aspects as well as
legal points have been correctly considered. It leaves no scope for any
substantial questions of law, as contemplated under Section 100 of the Code
of Civil Procedure Code, 1908 and, therefore, in view of Kirpa Ram (D)
7 SA_376_2012
through LRs. and others vs. Surender Deo Gaur and others, 2021 (3)
Maharashtra Law Journal, 250, the Second Appeal stands dismissed, at the
stage of admission. Civil Application No.7912 of 2021 stands dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
