Bombay High Court
Sau. Sojabai Motiram Patil vs Sau. Ahsa Pradeep Jakhete on 2 August, 2024
1 921sa901.16 Ord. or Judg.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
921 SECOND APPEAL NO. 901 OF 2016
WITH
CIVIL APPLICATION NO. 16621 OF 2016
IN SA/901/2016
SAU. SOJABAI MOTIRAM PATIL
VERSUS
SAU. AHSA PRADEEP JAKHETE
...
Advocate for Appellant : Mr. Narwade Vinayak P, and
Mrs.Manjushri V. Narwade
...
CORAM : KISHORE C. SANT, J.
DATE : 02nd AUGUST, 2024.
PER COURT :
1. Heard the appellants.
2. This appeal is circulated just a day before, when next
date the matter is fixed by the Executing Court on 03.08.2024
for issuance of possession warrant. The appeal is of 2016. It
appears that no attempt was made to get the appeal circulated.
The first date appears to be of 13.12.2023. On that date a time
was sought on the ground of personal difficulty and the same
2 921sa901.16 Ord. or Judg.
was adjourned on 16.01.2024. On 16.01.2024 again the matter
was adjourned at the request of the appellant by way of a last
chance. It was adjourned on 13.02.2024. On that date the
matter was mentioned out of turn and time was sought till
12.03.2024. On 12.03.2024, this Court was pleased to call for
record and the proceedings and the matter was adjourned on
02.04.2024. However, since the record and proceedings was
awaited nothing could be done on that date. However, the
record and proceedings is received in the month of May, 2024.
On 12.07.2024 the appeal was again circulate for today and
now the appeal is on board.
3. The appeal is vehemently argued by the learned
Advocate for the appellant.
4. The facts in short are that the plaintiff/respondent in
this appeal executed a sale deed in favour of the
appellant/original defendant. It is the case of the plaintiff that
she is owner and possessor of the land plot No.13 ad-measuring
192 sq. mtrs. from Gut No. 62/3A from Khedi (Bk.) Taluka and
District Jalgaon. She purchased the said land from one
3 921sa901.16 Ord. or Judg.
Udaychand Katariya on 13.01.1986. She has never sold her
land, however, she found lateron that on 01.07.1997 a revenue
entry was taken in respect of the said land in the name of the
defendant by showing that the same is purchased by her by way
of a sale deed. The plaintiff therefore filed a suit stating that
she has never executed the sale deed in favour of the defendant.
The defendant is in habit to get the sale deeds executed in her
favour by presenting dummy person before the Registrar of
Land Records. The husband of the plaintiff therefore lodged a
police complaint against the defendant and others. The learned
Advocate for the appellant has given the details about the
present position of the Criminal Case bearing No. 429 of 1998.
The plaintiff thus, filed a suit for possession and declaration
that the sale deed is bogus and not accepted by the authority.
5. It is the defence of the defendant that she has
purchased the land from the plaintiff for the consideration of Rs.
22,000/-. Thereafter, she became the owner of the plot on the
basis of sale deed and prayed for dismissal of the suit.
6. The trial Court i.e. 2nd joint Civil Judge, Junior
4 921sa901.16 Ord. or Judg.
Division, Jalgaon by judgment and order dated 06.03.2008
decreed the suit bearing RCS No. 328 of 1998. Against the said
judgment the defendant filed the Regular Civil Appeal bearing
No. 133 of 2008 and the same came to be dismissed on
13.11.2015 by the learned Principal District Judge, Jalgaon.
7. The learned Advocate further submits that in the
present case a substantial question of law arises as regards
Section 34 of the Registration Act. She further argued that the
stamp vendor who prepared sale deed is examined before the
Court. He admitted that he had executed a stamped document
of a sale deed. The finger print expert is also examined who
stated that the thumb impression on the sale deed and the
thumb impression of the plaintiff matches. When such evidence
is on record, the Court ought to have pass the decree. She
further submits that the sale deed executed before the
Registrar, there is no dispute. The dispute is only about who
has executed the sale deed and in view of the finger print
expert's report it is sufficiently proved that the thumb
impression on the sale deed is of the plaintiff.
5 921sa901.16 Ord. or Judg.
8. She further submits that the learned appellate Court
has also committed error in not appreciating the evidence in
proper perspective and particularly the report of the finger print
expert.
9. This Court has gone through the record and the
proceedings. This Court has perused the evidence of the
parties. So far as the finger print expert's report is concerned
he admitted in his cross-examination that the report which is
on record does not bear his signature, though the stamp vendor
i.e. scribbler of the document has examined. He in his cross-
examination clearly accepted that he did not verify the identity
of the vendor while executing the sale deed. Thus, on this both
the Courts have held that the identify of the person who
executed the sale deed is not established. It is also further held
that though the finger print expert's report is on record, he
admitted in his cross-examination that the said report does not
bear his signature and, therefore, the said report is not
exhibited by both the Courts. Considering all these aspects, this
Court needs to consider the present appeal.
6 921sa901.16 Ord. or Judg.
10. The learned Advocate has relied upon the judgment
reported in 2010 (2) Mh.L.J. 970 in the case of Sarjerao Maruti
Sathe Vs. Pralhad Laxman Sathe and Others. The said
judgment is in respect of Bombay Tenancy and Agricultural
Lands Act. In the said case the question was about the
reliability of the documentary evidence under Section 61 of the
Indian Evidence Act. The Court held that the certified copy of
the partition deed is not a public document and therefore, it
could not have been read in the evidence without examining the
attesting witness. There is no dispute so far as the preposition
laid down in the said judgment. The question in this case is as
to whether the defendant has specifically proved her case in
respect of the sale deed when the plaintiff has specifically come
with a case that she has never executed the sale deed in favour
of the defendant, the question that goes to the root of the
matter. After the initial burden is discharged by the plaintiff to
show that she has not executed the sale deed it was for the
defendant to specifically prove that the document i.e. the sale
deed is executed by the plaintiff herself as it is her specific case.
11. The defendant in this case has failed to prove the
7 921sa901.16 Ord. or Judg.
said fact. It is also not clear as to what happened about the
criminal case thereafter and the learned Advocate could not give
the details of the said criminal case.
12. With this all, this Court finds that the question
decided by both the Courts are necessarily the questions of fact.
No substantial question of law is made out calling for
adjudication at the hands of this Court.
13. This Court is thus not inclined to entertain the
appeal and the Second Appeal stands dismissed. No order as to
the costs.
14. In view of the disposal of the Second Appeal,
pending Civil Applications, if any, also stand disposed off.
( KISHORE C. SANT )
JUDGE
mahajansb/
