Bombay High Court

Dajisingh Dasingh Patil Lrs ... vs Ashok Pandharinath Patil And ... on 8 June, 2022

Bench: V. V. Kankanwadi

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    SECOND APPEAL NO.589 OF 2015
                                WITH
                 CIVIL APPLICATION NO.14239 OF 2015
                                WITH
                 CIVIL APPLICATION NO.15170 OF 2015


 1) Dajisingh Dashingh Patil
    Since deceased through L.Rs.

 1) Pratapsingh Dagasingh Patil
    since deceased through L.Rs.
                                                      ...APPELLANTS
        VERSUS

 1) Ashok Pandharinath Patil,

 2) Indubai W/o Kautik Patil,

 3) Kokilabai W/o Gulabrao Patil,

 4) Nirmala W/o Arvind Choudhari,

 5) Nana Pandharinath Patil
    since deceased through L.Rs.
                                                      ...RESPONDENTS

                  ...
    Mr.V.J. Dixit Senior Advocate i/b. Mr.V.B. Garud for Appellants.
    Mr.S.P. Brahme, Advocate for Respondent Nos.1, 5-A, 5-B,
    7-A to 7-C.
    Mr.S.H. Panchal Advocate for Respondent No.11 (Absent).
    Mr.V.B. Patil Advocate for Respondent No.12 (Absent).
                  ...




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                CORAM: SMT. VIBHA KANKANWADI, J.


 DATE OF RESERVING ORDER                :   16th NOVEMBER 2021

 DATE OF PRONOUNCING ORDER :                8th JUNE 2022



 ORDER :

1. Present appellants are the original defendants, who want

to challenge the Judgment and decree passed by the learned 2 nd

Joint Civil Judge, Junior Division, Bhusawal, District-Jalgaon on

5th July 2007 in Regular Civil Suit No.209 of 1989 confirmed by

the Judgment and decree passed by the learned District Judge-1,

Bhusawal, District-Jalgaon in Regular Civil Appeal No.82 of 2014

on 8th December 2014.

2. Heard learned Advocate for the appellants and learned

Advocate for respective respondents.

3. The present respondents - original plaintiffs had filed the

said Regular Civil Suit No.209 of 1989 for possession,

declaration and mesne profit. The said suit came to be decreed

by the learned trial Judge, by holding that the plaintiffs have

proved title over the suit property. It was held that the plaintiffs

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have failed to prove that defendants have obtained possession of

the suit property by fraudulent means. It was held that the

defendants have failed to prove that they have become the

owners of the suit property by adverse possession. They have

also failed to prove that their deceased father had purchased the

suit property from the deceased father of the plaintiffs. It was

held that the suit is within limitation. The learned First Appellate

Court also held that the title over the suit property has been

proved by the plaintiffs. So also it is held that the defendants

have obtained the possession of the suit property without any

legal documents.

4. The learned Senior Counsel Mr. Dixit instructed by learned

Advocate Mr. Garud for the appellants vehemently submitted

that both the Courts below have failed to consider the oral

evidence as well as documentary evidence. The admissions have

not been considered properly, in which the plaintiffs' witness has

specifically admitted that when he was minor, at that time father

of the defendants was in possession. Both the Courts failed to

consider that there was an agreement to sell executed by

Pandharinath Patil on 6th July 1959 in favour of father of the

defendants. Dajising was put in possession of the said property

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by Pandharinath since 1959-60 and after his demise the

defendants are cultivating it. In the meantime, the scheme of

Fragmentation and Consolidation was implemented in their

village, as a result of which the sale deed remained to be

executed. Thereafter Dajising had got that transaction

regularized by paying penalty of Rs.59/-. Even Pandharinath as

well as Dajising had approached the Tahsildar for sell of the

property by giving application on 12th October 1966. In that

proceeding the original agreement to sale was filed. The entries

to the mutation were challenged, however, they are in favour of

the defendants. The said agreement to sale could not be

produced before the trial Court though the defendants had

searched. But now, the original document is found in the old

house which was totally collapsed but some bags and baggages

which were kept by the grand father of the defendants got

buried in the said mud and while removing the debris, on 17 th

September 2015 the said documents were found in old trunk /

suitcase and therefore, Civil Application No.15170 of 2015 has

been filed under Order XLI Rule 27 of the Code of Civil

Procedure. Even if we keep that agreement to sell aside, the

Courts below ought to have considered that since long the

defendants are in possession of the suit property and the

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plaintiffs had the knowledge about the fact that the defendants

are using the said property as owner thereof. The point

regarding ownership by adverse possession has not been

considered by the First Appellate Court. The suit that was filed

by the plaintiffs was barred under Articles 65 and 58 of the

Indian Limitation Act. Though the point was agitated before the

First Appellate Court, there is no determination of the point and

answer to the same. Therefore, substantial questions of law are

arising in this case, requiring the admission of the Second

Appeal. He also prayed that by admitting the Second Appeal, the

possession of the appellants be protected, by staying the

Judgment and decree of both the Courts below.

5. Learned Advocate Mr. Brahme representing respondent

Nos.1, 5-A, 5-B, 7-A to 7-C, vehemently submitted in support of

the reasons those were assigned by both the Courts below while

decreeing the suit and dismissing the appeal. He also submitted

that no case is made out for allowing the production of the

additional evidence. He submitted that the cause of action for

filing the suit arose on 24th January 1981 when the notice was

issued to the defendants and prior to that the plaintiffs had come

to know that possession of the defendants is unauthorized. The

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suit was filed on 21st June 1989 i.e. within the period of twelve

years and therefore, the suit was well within limitation from the

date of cause of action. Both the Courts below have considered

the effect of all the necessary facts and law. The defendants

have not denied that the suit property originally belongs to

Pandharinath. They have not stated as to under which legal

documents or of provisions of which Act / right, the defendants

took possession. Even though opportunity was given, the original

agreement to sale was not produced before the trial Court, nor

there was any attempt to produce that document before the First

Appellate Court. It is hard to believe that after such a long time,

all of a sudden that document will be found in a suitcase, that

too under the debris. At the most, it can be said that the

possession of the defendants over the suit property was

permissive in nature till 24 th January 1981 as no action was

taken against the defendants. But after the notice was issued,

they were bound to vacate the premises. Both the Courts below

have considered all the aspects and appreciated the oral as well

as documentary evidence and therefore, there is no necessity to

interfere in the decisions by the trial Court and First Appellate

Court. No substantial questions of law are arising in this case

requiring admission of the Second Appeal.

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6. At the outset, at the stage of admission of the Second

Appeal, it is required to be seen, as to whether substantial

questions of law are arisen. In order to have this exercise, a

detailed analysis of pleadings and evidence is not required, but a

prima facie view is required to be considered. If we consider the

plaint, then it can be seen that it does not say as to exactly since

which date Dajising had taken possession of the suit property

which is stated by the plaintiffs as fraudulent or unauthorized.

Definitely, the law requires that such disclosure should be made

by the person who claims possession. In other words, the person

who claims possession, should disclose that he was

dispossessed. As per the pleadings itself, Pandharinath i.e. father

of the plaintiffs expired on 1st June 1967. According to the

plaintiffs, at that time all of them were minor. They have not

stated in the pleadings as to when each of them attained the age

of majority. In spite of attaining the age of majority, why they

had kept quiet for a long period was the expected explanation

from the plaintiffs. So far as cause of action is concerned, it is

stated that they came to know that the possession of the

defendants is illegal and they had claimed possession from the

defendants, which was refused. Thereafter the notice dated 24 th

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January 1981 was issued. Here also the things are kept in vague

as to exactly when they came to know that the possession of the

defendants is illegal and when they had, prior to 24 th January

1981, asked the defendants to handover the possession of the

suit property. With this kind of vague pleadings, it appears that

the plaintiffs went for trial.

7. Per contra, the defendants had taken up a specific defence

that their entry in the suit premises was through their deceased

father by virtue of an agreement to sale dated 6 th July 1959.

They could not produce the said original document, but then

they relied on the application before the Tahsildar dated 12 th

October 1966 filed by Pandharinath as well as Dajising to the

Tahsildar for his permission to regularize the said transaction and

thereafter, it is stated that they have got it regularized by

payment of penalty of Rs.59/-. The oral evidence has been led

by both the parties and it appears that certain vital admissions

have been given. Now, it is required to be interpreted as to how

those admissions would affect each others case. But that would

be as a secondary part of law point.

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8. Perusal of the Judgment by the First Appellate Court would

show that it has not considered the point of limitation as well as

no point and/or issue was framed by both the Court about proof

of agreement to sale dated 6 th July 1959 and its effect under

Section 53-A of the Transfer of Property Act. When the plaintiffs

had come with the case that neither the plaintiffs nor their father

had inducted Dajising, then whether the trial Court was justified

in arriving at a conclusion that possession of the defendants and

their predecessor was permissive in nature till 24 th January 1981.

The consequential point would be regarding claim by the

defendants, may be in the alternative, about becoming owner of

the suit property by adverse possession. This point is also not

taken by the learned First Appellate Court as a point for

determination. There might be some observations here and

there in respect of the same. Under such circumstance,

definitely, case is made out to admit the Second Appeal. Merely

because the Judgment and decree passed by the trial Court has

been confirmed by the First Appellate Court will not lead to an

inference that it does not create any substantial question of law

under Section 100 of the Code of Civil Procedure and therefore

the Second Appeal deserves to be admitted.

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9. Accordingly, the Second Appeal is admitted.

10. Following are the substantial questions of law:-

"(1) Whether the defendants have proved their possession over the suit property referable to the agreement to sale dated 6th July 1959 and the defendants were entitled to protect the possession under Section 53-A of the Transfer of Property Act and thereafter, after regularization of the said transaction by payment of penalty they have become owners of the suit property?

(2) Whether, alternatively, the defendants have proved that they have become owner of the suit property by adverse possession?

(3) Whether the suit was within limitation?"

11. In view of the admission of the Second Appeal, Civil

Application No.14239 of 2015, for stay to the impugned

Judgments and decrees, stands allowed in terms of prayer clause

"(B)", till the final decision of the Second Appeal.

12. Turning towards Civil Application No.15170 of 2015, for

production of documents, learned Advocate for the respondents

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has relied on the decision in State of Gujarat and another vs.

Mahendrakumar Parshottambhai Desai (Dead) by L.Rs.,

2006 AIR (SC) 1864, Union of India vs. Ibrahim Uddin

and another, (2012) 8 SCC 148, Andisamy Chettiar vs.

Subburaj Chettiar, 2016 AIR (SC) 79, Shrimant Shamrao

Suryawanshi and another vs. Pralhad Bhairoba

Suryawanshi and another, 2002 (Supp.2) Bom.C.R. 848,

and submitted that in view of the ratio laid down in these

authorities, defendants cannot be allowed to produce the

impugned document. Learned counsel was mainly on the point

that ample opportunity was available at both the stages of the

proceedings to the defendants, to produced the documents but it

was not utilized.

13. Per contra, learned Senior Counsel appearing for the

appellants has relied on the decision in Jaipur Development

Authority vs. Smt. Kailashwati Devi, AIR 1997 SC 3243,

wherein it has been held that refusal in adducing additional

evidence cannot be on the ground that the party has not

adduced any evidence in the trial Court. Further, reliance has

been placed on the decision in Iridium India Telecom Ltd. vs.

Motorola Inc. and others, 2004(2) LJSOFT 14, in which

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reliance was placed on K.J. Somayya vs. State of Bombay,

AIR 1964 SC 1714, wherein the Hon'ble Apex Court had

observed that, "While it is the duty of a private party to a

litigation to place all the relevant matters before the Court, a

higher responsibility rests upon the Government not to withhold

such documents from the Court." Further, it was considered that

when parties were going on producing documents after

documents and had the knowledge about the documents, then

there is no hurdle in allowing the production of the documents.

Learned Senior Counsel for the appellants has further placed

reliance on the decision in Adil Jamshed Frenchman

deceased by LR.s vs. Sardar Dastur School Trust and

others, 2005(2) Mh.L.J. 5, wherein it was held that two

documents were produced and the third document between the

landlord and the third party which could not have been produced

as the tenant would not have had knowledge, then the

statement about the document by the tenant that he could not

produce it before the trial Court in spite of due diligence is

probable and such defence can be accepted.

14. It is to be noted that the Hon'ble Apex Court in M/s.

Eastern Equipment & Sales Ltd. vs. ING. Yash Kumar

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Khanna, AIR 2008, S.C. 2360, in Para-5 of the Judgment,

held that:-

"5. We have heard learned counsel for the parties and after considering the facts and circumstances of the present case, we are of the view that in order to decide the pending appeal in which the application under Order 41 Rule 27 of the Code of Civil Procedure was filed ought to have been taken by the appellate Court along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. In that view of the matter and without going into the merits as to whether the application under Order 41 Rule 27 of the Code of Civil Procedure was rightly rejected by the Appellate Court as well as by the High Court, we set aside the order of the High Court as well as of the appellate Court rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure and we direct that the appellate Court shall decide the pending appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure on merits within a period of three months from the date of supply of a copy of this order to the appellate court. The appeal is allowed to the extent indicated above. There will be no order as to costs. "

15. Thus, the Hon'ble Supreme Court, in the decision referred

above, has held that the applications under Order XLI Rule 27 of

the Code of Civil Procedure be decided along with the appeal.

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16. In Sanjay Kumar Singh vs. the State of Jharkhand

(Civil Appeal No. 1760 of 2022, decided on 10 th March, 2022) the

Hon'ble Apex Court had relied on decision in the case of A.

Andisamy Chettiar v. A. Subburaj Chettiar, reported in

(2015) 17 SCC 713, wherein it was observed that, the

admissibility of additional evidence does not depend upon the

relevancy to the issue on hand, or on the fact, whether the

applicant had an opportunity for adducing such evidence at an