Bombay High Court
Najirbee Javed Shaikh Abdul ... vs Vidyakala Dnyandeo Kakade And ... on 18 April, 2022
Bench: Mangesh S. Patil
41.SA.623.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.623 OF 2019
WITH CA/6451/2018 IN SA/623/2019
NAJIRBEE JAVED SHAIKH ABDUL RAHEMAN
VERSUS
VIDYAKALA DNYANDEO KAKADE AND ANOTHER
...
Advocate for Appellant : Mr. N.D. Kendre
Advocate for Respondent No.1 : Mr. V. D. Gunale
...
CORAM : MANGESH S. PATIL, J.
DATE : 18.04.2022
PER COURT :
This is the Second Appeal by the original defendant No.2 who
has suffered a decree for declaration that the sale deed executed by the
respondent No.2 (defendant No.1) in her favour was not binding on the
respondent No.1 (plaintiff) and for possession of the suit plot.
2. I have heard the learned advocate Mr. Kendre for the appellant
and learned advocate Mr. Gunale for the respondent No.1 (original
plaintiff).
3. The respondent No.1 averred that she purchased the suit plot
from original owner Mr. Gojamgunde under a registered sale deed dated
18.05.1982. However, later on the plot was transferred from person to
persons who in turn sold it to the successors and lastly the respondent No.2
purchased it and sold it to the appellant. All these sale deeds were
subsequent to the sale deed executed by Mr. Gojamgunde in favour of
41.SA.623.19.odt
respondent No.1. She had filed Regular Civil Suit No.182/2005 against the
respondent No.2 alone seeking declaration and injunction however, since
she lost possession to the respondent No.2, she withdrew the suit with the
leave of the Court and on the very day respondent No.2 executed the sale
deed in favour of the appellant. Hence she claimed the declaration that the
sale deed is not binding on her and claimed possession.
4. The appellant contested the suit. She denied respondent No.1
having purchased the suit plot from Mr. Gojamgunde. She asserted that
Mr. Gojamgunde has sold the suit plot to one Prabha Dhanegaonkar.
Subsequently it was transferred to various persons and ultimately she
purchased it from the respondent No.2 under a registered sale deed and was
in rightful possession as its owner. She claimed to be the bona fide
purchaser for value without notice of the respondent No.1's right and also
put up a plea of adverse possession.
5. The trial court framed issues including the one of the appellant
being the bona fide purchaser for value without notice. Conspicuously the
issue regarding adverse possession was not framed. The trial court decreed
the suit.
6. By the judgment and order under challenge in this Second
Appeal, the appellate court dismissed the appellant's appeal even after
framing a point regarding adverse possession and limitation.
7. Considering the limitation on the powers of this Court to cause
interference in the concurrent findings of facts of the courts below as laid
41.SA.623.19.odt
down in the catena of judgments of the Supreme Court, in the matter of
Hero Vinoth (minor) Vs. Seshammal; (2006) 5 SCC 545 and Narayanan
Rajendran and Ors. Vs. Lekshmy Sarojini and Ors.; (2009) 5 SCC 264, etc.
even if one proceeds to examine the matter in hand, I am afraid, no
substantial question of law arises in the Second Appeal.
8. Though initially the appellant disputed the sale deed in favour
of the respondent No.1, it was subsequently duly proved by examining the
attesting witness as also her husband, being a registered document in the
form of a sale deed (Exhibit-51). Concurrent conclusion drawn by the
courts below about the respondent No.1 having purchased the suit plot
under that sale deed is clearly based on correct appreciation of the evidence
on the record and deserves to be accepted.
9. There is no dispute about the fact that Mr. Gojamgunde was the
original owner. There is evidence on the record to demonstrate that he had
executed a general power of attorney in favour of his son authorizing the
latter to dispose of the properties. Pursuant thereto the sale deed (Exhibit -
51) was executed in favour of the respondent No.1 by the son of the original
owner Mr. Gojamgunde.
10. It does appear that Mr. Gojamgunde subsequently sold the very
same suit plot to one Dhanegaonkar and later on every purchaser of the suit
plot sold it to the successor, the appellant being the last one to have
purchased the suit plot in the year 2007.
11. As has been rightly remarked by the trial court, once having
41.SA.623.19.odt
sold the suit plot to the respondent No.1, Mr. Gojamgunde had no right, title
or interest which he could have validly transferred to the successor even by
executing a sale deed. If such was the state of affairs, no exception can be
taken to the concurrent findings of the facts that the respondent No.1 had
derived the title to the suit plot first in point of time.
12. There was also evidence before the courts to demonstrate that
the respondent No.1 had filed earlier suit against the respondent No.2 for
declaration and injunction. However, asserting that she had lost possession
in the meanwhile, she had purportedly withdrawn the suit with the leave of
the Court as contemplated under Order XXIII Rule 1 of the Code of Civil
Procedure and filed the present suit arraying appellant as the defendant
No.2 in view of execution of the sale deed by the respondent No.2 in the
former's favour.
13. Though it is argued by Mr. Kendre for the appellant that in spite
of plea of adverse possession, the trial court had not framed any issue
regarding adverse possession and limitation and the appellate court did
undertake such exercise and in my considered view, there is no apparent
illegality.
14. Though the appellant was coming with several inconsistent
pleas and was entitled to do so, as was rightly pointed out by the trial court,
it was expected of her to have elected to stick to one such stand. She
claimed to be a bona fide purchaser for value without notice and allowed
the trial to proceed even in the absence of any issue regarding adverse
41.SA.623.19.odt
possession and limitation. This conduct of her is eloquent enough to
conclude that she had elected to take one stand which was considered by
the trial court. Though it was not necessary, the appellate court formulated
a point regarding plea of adverse possession and limitation and has
answered it objectively. Therefore, I see no illegality in the trial court
refusing to frame any issue about adverse possession and limitation.
15. All in all, there are concurrent findings of facts based on correct
appreciation of evidence upholding title of the respondent No.1 to the suit
plot and decreeing the suit as prayed for. No substantial question of law
arises.
16. The Second Appeal is dismissed with costs.
17. Pending application is disposed of.
(MANGESH S. PATIL, J.)
habeeb
