Chandrabhan Manaji Kakade And ... vs Anusaya Gangadhar Kakade And ...
2022 Latest Caselaw 471 Bom

                                                                   sa-294-2021 with ca.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           SECOND APPEAL NO.294 OF 2021

                   CHANDRABHAN MANAJI KAKADE AND ANR
                                VERSUS
                  ANUSAYA GANGADHAR KAKADE AND OTHERS

                                    ...
       Mr. A. D. Sonkawade h/f Mr. A. V. Hon, Advocate for appellants.
        Mr. Umakant U. Wagh, Advocate for respondent Nos.1 to 3.
                                    ...

                                   CORAM           : SMT. VIBHA KANKANWADI, J.

Reserved on : 17.11.2021 Pronounced on : 13.01.2022

ORDER :-

. Present appeal has been filed by original defendants challenging

the concurrent judgment and decree passed by the Courts below.

Present respondents are the original plaintiffs, who had filed Regular

Civil Suit No.114 of 2014 before the learned Joint Civil Judge Junior

Division, Pathardi, Tq. Pathardi, Dist. Ahmednagar for declaration and

perpetual injunction. The said suit came to be decreed on 17.04.2017.

The present appellants - original defendants challenged the said

judgment and decree by filing Regular Civil Appeal No.139 of 2017.

The said appeal came to be dismissed by the learned District Judge-7,

Ahmednagar on 02.02.2021. Hence, this second appeal.

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2. Heard learned Advocate Mr. A. D. Sonkawade holding for learned

Advocate Mr. A. V. Hon for the appellants and learned Advocate

Mr. Umakant U. Wagh for respondent Nos.1 to 3.

3. It has been vehemently submitted on behalf of the appellants that

perusal of the judgment passed by the first Appellate Court would give a

clear picture that there was no proper application of mind. There is no

compliance of order 41 Rule 31 of the Code of Civil Procedure. All the

points for determination were not at all framed nor there is substantial

compliance for the same in the reasons. Further, taking into

consideration the facts of the case, it can be seen that Gangadhar was

serving in Army who was the brother of the present appellants and the

plaintiffs were claiming to be the legal heirs of Gangadhar. The suit plot

was given to him by the Government on 04.04.1968 whereby

Gangadhar had executed Kabulayatnama before Tahsildar, Pathardi.

Name of deceased Gangadhar mutated on 30.05.1973 in Sheet No.9,

however, a Mutation Entry No.963 was taken on 19.01.1985 inserting

the names of the defendants. It has come on record that since that date

or even prior to that, the defendants are in possession of the suit land.

They have erected house and paid taxes in respect of half of the house.

Even Gangadhar was paying taxes in respect of half of the share in the

suit property till 1999. Gangadhar expired on 31.08.1999. Since 1985,

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till his death, Gangadhar never objected to the possession and the

revenue record in the name of defendants. In fact, Gangadhar himself

had given application to the Grampanchayat on 19.01.1985 for transfer

of half of the suit property in the name of defendants. If these things are

to be considered then the point of limitation in the suit which was

admittedly filed on 14.03.2014 has not been decided by both the Courts

below by proper application of mind. At least the trial Court had framed

specific issue regarding limitation, but the first Appellate Court had not

even framed the point and answered it. Under such circumstance, when

defendants - appellants are admittedly possessing the land/constructed

the portion since prior to 1985, due consideration for those points as

well as evidence ought to have been given by both the Courts below. In

such circumstance, second appeal needs to be admitted.

4. Per contra, the learned Advocate appearing for the respondents

supported the reasons given by both the Courts below and submitted

that there is sufficient compliance of Order 41 Rule 31 of the Code of

Civil Procedure by the first Appellate Court. The land was allotted to

Gangadhar as he was serving in the Indian Army earlier. The

Government has honoured him and the land was given on certain

conditions specifically not to transfer or alienate in any manner. It could

not have been so transferred by Gangadhar in the name of his brothers.

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Both the Mutation Entries on which the defendants are relying are

illegal. Merely because they were not challenged by Gangadhar, it will

not create ownership rights in favour of the appellants. No substantial

question of law as contemplated under Section 100 of the Code of Civil

Procedure is arising in this case.

5. At the outset, it can be seen that the first Appellate Court has

formulated only two points for determination and they are nothing to do

with the facts of the case. They are only stating that whether the Trial

Court has rightly decided the suit and whether the defendants have

proved that the judgment and decree passed by the Trial Court requires

interference. Such formulation of points by the first Appellate Court is

not contemplated under Order 41 Rule 31 of the Code of Civil

Procedure. In catena of judgments, especially in Santosh Hazari Vs.

Purushottam Tiwari (Deceased) By Lrs., [(2001) 3 SCC 179], the

Hon'ble Supreme Court has given guidelines as to how the first

Appellate Court should write judgment. No doubt, merely because

points are not properly framed, cannot be the ground for admission of

the second appeal, if the judgment of the first Appellate Court is

complying with the requirements under Order 41 Rule 31 of the Code of

Civil Procedure, in the form that all the points are discussed and

answered in the reasons part by the first Appellate Court. Perusal of the

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judgment of the first Appellate Court would show that the point of

limitation has not been dealt with, as it was raised specifically by the

defendants. So also, assessment of facts is also done in a cryptic way.

The first Appellate Court, being the last fact finding Court, should assess

the facts properly and judiciously and, therefore, the case is made out to

admit the second appeal on the ground raised that there is no

compliance of Order 41 Rule 31 of the Code of Civil Procedure. Hence,

the second appeal stands admitted. Following are the substantial

questions of law :-

I) Whether the judgment of the first Appellate Court complies with the requirements under Order 41 Rule 31 of the Code of Civil Procedure? If No, whether it deserves remand?

II) Whether the suit filed on 14.03.2014 can be said to have been filed within limitation in view of the pleadings in the written statement?

III) Whether defendant Nos.1 and 2 had proved that they had become owner of part of the suit property by virtue of mutation entry Nos.963 and 2020?

IV) What was the nature of possession of the defendants in respect of half portion of the suit property?

V) Whether the decree passed by the Trial Court in favour of plaintiffs can be said to be legal and correct?

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6. Issue notice to the respondents after admission. Learned Advocate

Mr. Umakant U. Wagh waives notice for the respondents.

7. Call record and proceedings.

[SMT. VIBHA KANKANWADI, J.]

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