Bombay High Court
Sahebrao Ramrao Shinde And Anr vs Raosaheb Ramrao Shinde on 22 September, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
921 SECOND APPEAL NO.635 OF 2012
WITH
CA/10830/2012 IN SA/635/2012
SAHEBRAO RAMRAO SHINDE AND ANR
VERSUS
RAOSAHEB RAMRAO SHINDE
...
Advocate for Appellants : Mr. A.R. Devakate, Adv. For
Appellant-applicant No.1 (consent Obtained)
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 22nd September, 2021.
PER COURT :-
1. Heard learned Advocate for appellants-
original defendants. Learned Advocate for
respondent-original plaintiff is absent.
2. In view of decision in the case of Ashok
Rangnath Magar Vs. Shrikant Govindrao Sangvikar -
(2015) 16 SCC 763, it is not even necessary to hear
the respondent for the purpose of admission of the
Second Appeal. Further, on the last occasion, it
was made clear by this Court that no adjournment
will be granted and, therefore, learned Advocate
for the respondent ought to have remained present.
3. Present appellants are original
defendants, who challenged the judgment and decree
passed by the learned District Judge-2, Aurangabad
in RCA No.289/2009, dated 17.2.2011, thereby
allowing the appeal filed by the present
respondent-original plaintiff and thereby decreeing
the suit by reversing the judgment and decree
passed by the learned Trial Judge.
4. Present respondent-original plaintiff had
filed RCS No.163/2006 before learned Joint Civil
Judge, Junior Division, Kannad, for perpetual
injunction. That suit came to be dismissed on 16th
October, 2009 and, as aforesaid, the appeal filed
by the original plaintiff, has been allowed by the
learned District Judge-2. The suit came to be
decreed. It has been held by the first Appellate
court that the plaintiff is the owner of the well,
situated in Gut No.144 and the defendants, i.e.
present appellants, have been restrained from
obstructing the plaintiff's actions to take water
from the suit well for cultivating his land bearing
Gut No.262 in village Hatnoor.
5. At the outset, it can be seen that there
is no concurrent finding of the courts below. The
present defendants had challenged the contention of
the plaintiff that he is the exclusive owner of the
well in Gut No.144 of village Shivrai. He claimed
his exclusive ownership over the said well on the
basis of partition and the mutation entry No.1140.
Learned Advocate appearing for the appellant/s is
pointing out that the first Appellate court has
relied on photo copy of the partition-deed
(Exhibit-111), cannot be taken into consideration
as it is a photo copy, which is per se inadmissible
in nature. Though no objection has been given to
exhibit the document, he says that exhibiting of a
a document does not prove the fact itself.
Further, that document is also subject matter of
another suit and the Second Appeal arising from
that litigation has been admitted by this Court and
it is pending for final adjudication.
6. Certainly, it appears that the first
Appellate court has relied on that documentary
evidence as well as alleged admissions by the
witness for the defendant/s in cross-examination.
Question, therefore, arises as to whether, only on
the basis of the admissions in the cross-
examination of the defendant, the plaintiff's suit
can be decreed in such a way, which was based on
the photo copy. It is further informed that
Mutation Entry No.1140 was challenged by the
present appellants before the Revenue officers and
now the said mutation entry, on the basis of which
the plaintiff claimed the exclusive ownership, has
been cancelled. Though,the Civil Court can only go
into the aspect of the ownership and the decision
in the revenue record may not affect or has any
kind of bearing over the jurisdiction of the Civil
Court to decide the ownership; yet that fact is
then required to be considered at this stage for
admission.
7. Another fact that is to be gone into is,
when the ownership claimed by the plaintiff was
challenged by the defendants, then, without seeking
declaration, whether the suit for simplicitor
injunction, is maintainable ? and, therefore,
substantial questions of law, as contemplated under
Section 100 of CPC, are arising in this case.
Hence, the Second Appeal stands admitted.
8. Following are the substantial questions
of law, -
i. Whether the suit for simplicitor
injunction, without seeking declaration
of ownership, was maintainable ?
ii. Whether photo copy of the
document (Exh. 111) was per se
inadmissible and whether it could have
been the basis for claiming ownership by
the plaintiff over the well situated in
Gut No.144 of village Shivrai ?
iii. Whether the first Appellate
court was justified in only relying on
the oral evidence, i.e. cross-examination
of the defendant/s, to come to a
conclusion about the alleged ownership of
the plaintiff over the suit well ?
iv. Whether the plaintiff had proved
his exclusive ownership over the suit
well ?
v. Whether the first Appellate
court was justified in reversing the
findings and conclusions of the learned
Trial Judge ?
9. Since learned Advocate for the respondent
is absent, issue notice to the respondent after
admission of the Second Appeal, returnable on
17.1.2022.
10. Since the Civil Application for stay was
kept pending by the appellant/s for so many years,
it cannot be decided in absence of the respondent.
11. Place the Civil Application for stay on
17.1.2022 for further consideration.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
