Bombay High Court
Namdeo Ganpat Dherange, Died Thr. L.Rs. ... vs Ramchandra Maroti Dherange, Died Thr. ... on 13 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
1 14-SA.594-13 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 594 OF 2013
WITH
CIVIL APPLICATION NO. 10674 OF 2013
WITH
CIVIL APPLICATION NO. 11130 OF 2018
Namdeo Ganpat Dherange Died Thr. L.rs. Chandrabhaga And
Ors
VERSUS
Ramchandra Maroti Dherange Died Thr. L.rs. Dagadu And Ors
...
Advocate for Appellants : Mr. Nagargoje Ankush N.
Advocate for Respondent Nos.1B to 1E, 2A to 2D, 2F :
Mr. Wani Girish V.
...
CORAM : S. G. MEHARE, J.
DATE : 13.12.2023
PER COURT :-
1. Heard the learned counsel for the appellant and learned
counsel for the respondents.
2. The plaintiff had filed the suit for declaration and
possession of Gut No.675 of village Ambi-Dumala. The plaintiff
has a case, the defendants were his cousin. They had a
partition in 1964. The partition was effected and implemented.
The mutation entries were recorded, and separate survey
numbers were also given to their shares. However, the
Consolidation Officer made the mistake of showing the
plaintiff's land in the defendant's name. That was the cause of
2 14-SA.594-13 & ors.odt
the dispute. The plaintiff immediately objected before the
Consolidation Officer. The Consolidation Officer held the
inquiry. Before the Consolidation Officer, the defendants
admitted that there was partition and field Gut No.675 was the
plaintiff's share. Unfortunately, in the meantime, the portion of
the suit measuring 62 Are land was acquired for the
percolation tank. Since the Consolidation Officer committed a
mistake, the award was also passed in the name of defendant
No.1. The plaintiff immediately rushed to the Court for
declaration and possession and asked not to apportion the
award money. The award money was deposited in the Court.
The suit was decreed. However, the First Appellate Court
reversed the judgment and decree of the Court of First Instance
on the sole ground that the statement of the defendant
recorded before the Consolidation Officer was not confronted
with him. Therefore, the said statement Exh.72 is not
admissible.
3. Learned counsel for the appellants would submit that
apart from the defendant's statement below Exh.72, there were
copies of the mutation entries and the defendants' admission
that there was a partition. Otherwise, there was also sufficient
evidence to prove the title. The factum of the mistake
3 14-SA.594-13 & ors.odt
committed by the Consolidation Officer was also available.
Therefore, the First Appellate Court ought not to have
disturbed the judgment and decree of the Court of First
Instance. He would submit that the substantial questions of law
are involved in this case.
4. As against this, learned counsel for the respondents
would submit that the land put for the Consolidation was
different. The defendants had no concern with the plaintiff's
property. The plaintiff did not prove the statement of the
defendant below Exh.72 by confronting him or examining the
officer who recorded the statement. Hence, the judgment and
decree of the First Appellate Court is legally correct and proper.
5. In reply, learned counsel for the appellants would submit
that the documents produced from the custody of the
Consolidation Officer, including the statement of defendant
No.1 Exh.72, were admitted by the defendants.
6. Learned counsel for the respondents further argued that
the learned counsel for the defendants admitted those
documents, not the parties. Hence, those cannot be received in
the evidence.
4 14-SA.594-13 & ors.odt
7. Considering the arguments of both sides and the issues
involved in this case, the following substantial questions of law
have been formulated :
(i) Is the statement of defendant No.1 below
Exh.72 before the Consolidation Officer inadmissible
for want of confronting the defendants ?
(ii) Does the admission of the advocate's document
bind the parties to the suit ?
(iii) Does the First Appellate Court correctly
appreciate the evidence?
8. Admit.
9. Issue notice to the respondents, returnable on
09.02.2024.
10. Learned counsel Mr. Wani waives service of notice for
respondent Nos.1B to 1E, 2A to 2D, 2F.
11. The dispute is about 62 R. of land acquired for the
percolation tank. Learned counsel for the appellants made a
statement that the award money was deposited in the Court.
However, he has no instructions on whether the said amount
was withdrawn after the dismissal of the appeal. So, the
5 14-SA.594-13 & ors.odt
learned respective counsels have made the statement that such
information is necessary to grant the stay. Hence, civil
application No.11130 of 2018 is kept pending.
12. Stand over to 09.02.2024.
(S. G. MEHARE, J.)
...
vmk/-
Signed by: Vaishali Mahesh Kale
Designation: PA To Honourable Judge
Date: 14/12/2023 12:32:10
