Bombay High Court
Mansukh Kisan Rakshe Died Lrs. ... vs Tarabai Aba Rakshe And Ors on 5 April, 2022
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.183 OF 2022
WITH
CIVIL APPLICATION NO. 5155 OF 2022
IN SA/183/2022
1] Mansukh Kisan Rakshe, ]
Died, Through LR's. ]
1-A] Sudam Mansukh Rakshe ]
Age : 36 Years, Occu : Agri. ]
1-B] Ganesh Mansukh Rakshe ]
Age : 34 Years, Occu : Agri. ]
1-C] Pushpa Pandurang Walunj ]
Age : 40 Years, Occu : Household, ]
Applicant Nos.1-A to 1-C ]
R/o Pune-Nagar Highway, Gavanewadi, ]
Tal. Shrigonda, District. Ahmednagar. ] ... Appellants
(LR's of Defendant No.1)
Versus
1] Tarabai Aba Rakshe ]
Age : 52 Years, Occu : Houshold ]
2] Mahesh Aba Rakshe ]
Age : 30 Years, Occu : Agri ]
3] Dipak Aba Rakshe ]
(Orig.Plaintiff No.) ] ... Respondents Nos.1 to 3
(Plaintiff Nos. 1 to 3)
4] Popat Kisan Rakshe ]
Age : 69 Years, Occu : Agri, ]
5] Suresh Kisan Rakshe ]
Age : 67 Years, Occu : Agri, ]
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938-SA-183-2022.odt
6] Sahebao Kisan Rakshe ]
Age 57 Years, Occu : Agri. ]
All R/o At Gavanewadi, ]
Tal. Shrigonda, Dist. Ahmednagar ] ... Respondent Nos.4 to 6
(Defendant Nos.2 to 4)
...
Mrs. Anjali Dube (Bajpai), Advocate for Appellants
Mr. Rahul A. Tambe, Advocate for Respondent Nos. 1 to 3 (Caveator)
...
CORAM : MANGESH S. PATIL, J.
DATED : 05 APRIL 2022.
ORDER :
1. By way of this appeal under section 100 of the Code of Civil
Procedure (for short, "the CPC"), the original defendant no.1 is challenging
the concurrent judgments and orders passed by the courts below holding the
respondent nos.1 to 3, who are the original plaintiffs, to be entitled to
perpetual injunction restraining him from causing obstruction to their
possession in the suit properties, albeit the declaration claimed by them of
having become owner on the basis of Mutation Entry No.495 was refused. The
respondent nos.4 to 6 are the original defendant nos.2 to 4. The parties are
hereinafter referred to by their status in the suit.
2. One Kisan Maruti Rakshe was the common ancestor. He had five
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sons, Aba and defendant nos.1 to 4. The plaintiffs are the widow and sons of
Aba. They averred that Kisan Rakshe died on 01/02/1978. After his demise,
all the ancestral properties were inherited by them jointly though they were
living separately and cultivating different portions of the suit properties. It
was also averred that some of the suit properties were acquired from the
nucleus of the joint family but in the name of the defendant no.1 being a
'Karta' of their family. They then averred that since the dispute arose amongst
all of them, they agreed to get the suit property divided. They submitted an
application to the Revenue Officer on 01/06/2004 for effecting partition and
separation of share of each one in the suit properties. Accordingly Mutation
Entry no. 495 was certified. However, the defendant no.1 started obstructing
their possession in the share allotted to them and claimed the declaration and
injunction.
3. The defendant no.1 contested the suit by filing a written
statement. He did not dispute the relationship and also did not dispute that
three of the suit properties, namely, Gut no.25, 144 and 150 were the
ancestral properties. He also did not dispute that his father Kisan Rakshe died
on 01/02/1978. He contended that after demise of Kisan Rakshe, a partition
had taken place in the year 1980 and each of these brothers got separated and
received separate portion. In the year 1981 and 1993, he purchased couple of
suit properties, namely, gut no.142 and 95 from his separate income and those
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were not the joint family properties. He further contended that the Mutation
Entry No.495 was subsequently cancelled. He prayed for dismissal of the suit
and preferred a counter claim. He averred that the plaintiffs had no concern
with the properties purchased by him which were in his exclusive possession.
They were disturbing his possession and claimed injunction.
4. The plaintiffs contested the counter-claim by filing a written
statement and denied to have ever obstructed him.
5. The defendant nos.2 to 4 admitted the claim in the suit by filing
their separate praceipes.
6. The trial court concluded that all the suit properties were the
ancestral and joint family properties and the partition was effected in the year
2004 and the plaintiffs being in possession of the suit properties were entitled
to injunction. However, it also held that since they were claiming ownership
on the basis of Mutation Entry no.495, which was subsequently cancelled, they
were not entitled to the declaration. The trial court also dismissed the counter-
claim discarding the stand of the defendant no.1 of being in exclusive
possession of the properties purchased by him.
7. The defendant no.1 preferred an appeal before the lower
appellate court, which dismissed it by concurring with the most of the
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observations and the conclusions of the trial court.
8. Learned advocate Mrs. Anjali Dube (Bajpai) for the defendant
No.1 would vehemently submit that the document which was in fact an
application (Exh.65) moved before the revenue authorities was not duly
proved. He is an illiterate person. The courts below have ignored this fact and
have based their conclusions on the so called admissions given by him
unmindfully. The trial court erred in holding the document to be an
agreement. There was ample evidence to show that the ancestral properties
were partitioned in the year 1980 and it is thereafter that couple of properties,
namely, gut no.95 and 142 acquired by him under different sale deeds in the
years 1981 and 1993. The observations and the conclusions drawn by the
courts below were grossly perverse and arbitrary. They failed to take into
account the material circumstances and have given importance to irrelevant
ones. Substantial questions of law arise for determination in the second
appeal and it be admitted.
9. Learned Advocate Mr. Rahul Tambe for the plaintiffs would
submit that no substantial question of law arises in this second appeal. There
are concurrent findings of facts by both the courts below, taking plausible view
on correct appreciation of evidence that was available before them. This court
in exercise of the powers under section 100 of the CPC cannot undertake a
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fresh scrutiny of facts by re-appreciating evidence and the second appeal be
dismissed.
10. At the outset, it is necessary to point out one important defect
which I could notice. As is mentioned hereinabove, the trial court had partly
decreed the suit and dismissed the counter-claim. Still, the defendant no.1
preferred one composite appeal. Even though by the impugned judgment and
order, the lower appellate court has dismissed the appeal, the illegality has
perpetuated even in filing this second appeal. At no point it has been made
clear in the appeal memo as to which part of the judgments and orders of the
courts below, the defendant no.1 is intending to assail. It is not clear as to if
he intends to challenge both the decisions, one decreeing the suit partly and
the other dismissing his counter-claim. This is, indeed, an important
circumstance which, in my considered view, goes to the root of the
maintainability of the second appeal.
11. Be that as it may, treating this to be an appeal seeking to put up a
challenge to the judgment and decree in the suit of the plaintiff as also in the
counter-claim, it is a matter of record that both the courts below, which are the
fact finding courts, have concurred in partly decreeing the suit and dismissing
the counter-claim. The scope of an appeal under section 100 of the CPC in
such circumstances where there are concurrent findings of facts is very limited.
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12. Suffice for the purpose to refer to the decision and observation of
the Supreme Court in the matter of Hero Vinoth (minor) Vs. Seshammal;
(2006) 5 SCC 545, para 19 and Narayanan Rajendran and Ors. Vs. Lekshmy
Sarojini and Ors.; (2009) 5 SCC 264, para 64 :
"19. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of
fact, being the first appellate court. It is true that the lower
appellate court should not ordinarily reject witnesses accepted by
the trial court in respect of credibility but even where it has
rejected the witnesses accepted by the trial court, the same is no
ground for interference in second appeal when it is found that the
appellate court has given satisfactory reasons for doing so. In a
case where from a given set of circumstances two inferences of fact
are possible, one drawn by the lower appellate court will not be
interfered by the High Court in second appeal. Adopting any other
approach is not permissible. The High Court will, however,
interfere where it is found that the conclusions drawn by the lower
appellate court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at by ignoring material
evidence."
"64. Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High Courts
would have jurisdiction of interfering under Section 100 C.P.C.
only in a case where substantial questions of law are involved and
those questions have been clearly formulated in the memorandum
of appeal. At the time of admission of the second appeal, it is the
bounden duty and obligation of the High Court to formulate
substantial questions of law and then only the High Court is
permitted to proceed with the case to decide those questions of law.
The language used in the amended section specifically
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incorporates the words as "substantial question of law" which is
indicative of the legislative intention. It must be clearly understood
that the legislative intention was very clear that legislature never
wanted second appeal to become "third trial on facts" or "one
more dice in the gamble". The effect of the amendment mainly,
according to the amended section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard
only on that question."
13. Bearing in mind the limitations on the powers of this court, I now
propose to deal with the matter in issue. As can be gathered, the defendant is
coming with a case that the ancestral properties were partitioned in the year
1980 after demise of the common ancestor Kisan Rakshe in 1978. However, as
has been concurrently held by the courts below, there was no sufficient, cogent
and reliable evidence to substantiate this stand except the vague averment in
the written statement and equally vague testimonies of defendant no.1 and his
witnesses. On the contrary, as was rightly noticed by the courts below though
the documents (Exhibit-65) was in the form of an application submitted to the
revenue authority, the contents of the application clearly demonstrated that
these brothers had made that joint application seeking separation of the
938-SA-183-2022.odt
revenue record to the extent of share of each one in all the suit properties
including the ones stated to have been acquired by defendant no.1
subsequently. They also noticed that this application purportedly bore his
signature. During his cross examination, he also gave clinching admissions
touching all these aspects regarding dispute in the family, in the year 2004 and
submission of application for separation of the shares. True it is that the
Mutation Entry no.495 effected on that basis was subsequently quashed and
set aside, but the fact remains that this was a joint application of which
defendant no.1 and also all other brothers were the signatories containing
statements regarding they having reached division/partition.
14. Therefore, even if the mutation entry was subsequently cancelled,
this was an important piece of evidence available before the courts below to
take a plausible view that ancestral properties and also the properties acquired
subsequently were the joint family properties and were sought to be divided
amongst all the five brothers by effecting a mutation and the suit properties
were allotted to the share of the plaintiffs as mentioned therein. Right in the
teeth of such clinching evidence and admissions by the defendant no.1, both
the courts below have concurrently held that all properties, the ancestral
properties as also the properties acquired subsequently, which were put into
common hotch-potch were partitioned in the year 2004 and the plaintiffs were
in exclusive possession of the suit properties, which was the share allotted to
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them. In view of such a plausible view taken by the courts below, no
substantial question of law arises for determination in this second appeal. It is
dismissed.
15. Pending Civil Application stands disposed of.
( MANGESH S. PATIL, J.)
Tandale/-
