Bombay High Court
Ajitkumar Popatlal Shah vs Chandrabhaga Vilas Dhamal And Anr on 6 August, 2024
2024:BHC-AS:32687
12-SA-393-2021.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.393 OF 2021
WITH
CIVIL APPLICATION NO. 1068 OF 2019
Ajitkumar Popatlal Shah ...Appellant/Applicant
Aged : 69 years, Occupation : Business (Orig. Defendant No.1)
Residing at Loham, Post : Kaneri,
Tal : Khandala, Dist : Satara
Vs.
1. Chandrabhaga Vilas Dhamal ... Respondent No.1.
Age : 64 years, (Orig. Plaintiff )
Occupation : Agriculture
2. Sachin Pandurang Dhamal ... Respondent No.2.
Age : 44 years, (Orig. Defendant No.2)
Occupation : Agriculture
Both R/o. Aswali, Tal : Khandala
Dist : Satara
Mr. Dilip Bodake a/w. Ms. Shradha Pawar for the Appellant.
Mr. Vaibhav Gaikwad for Respondent No. 1.
Mr. Ajitkumar Popatlal Shah-Appellant present in person.
CORAM : GAURI GODSE, J.
DATE : 6th AUGUST 2024
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date: 1/10
2024.08.14
20:32:34
+0530
::: Uploaded on - 14/08/2024 ::: Downloaded on - 21/08/2024 16:35:43 :::
12-SA-393-2021.docx
ORDER :
1. Heard learned counsels for the parties. This appeal is filed by
the original defendant no. 1 to challenge the concurrent Judgments
and decrees declaring that the sale deed dated 1 st November 2001
executed by defendant no. 2 in favour of defendant no. 1 is void ab
initio and hence is directed to be cancelled. The decree further directs
defendant no. 1 to hand over the vacant and peaceful possession of
the suit property to the plaintiff.
2. Learned counsel for the appellant submitted that the suit
property was purchased by Mukinda in the name of Vilas, and hence,
the suit property was a joint family property of Mukinda. To support his
contention that the suit property was purchased by Mukinda in the
name of Vilas, learned counsel for the appellant placed reliance on the
receipt dated 29th May 1994, which, according to him, indicates that
Vilas had no independent source of income, and he had accepted the
amount from Mukinda. The plaintiff is the wife of the deceased Vilas.
3. Learned counsel for the appellant also relied upon the document
at Exhibit No. 137, which is in the form of an agreement signed by
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Vilas, thereby stating that he shall transfer the suit property in the
name of Mukinda. He thus submits that the documents on record show
that though the sale deed in respect of the suit property was executed
and registered in the name of Vilas, it was a joint family property of
Mukinda. He thus submits that by way of family arrangement, the suit
property was allotted to Sachin (defendant no.2) towards his share on
behalf of Pandurang, i.e. Sachin's father.
4. Learned counsel for the appellant relied upon Exhibit No. 154
which is an application signed by Vilas stating that his property be
transferred in the name of Sachin. Learned counsel for the appellant
thus submits that pursuant to the application made by Vilas, suit
property was transferred in the name of Sachin in the Gram Panchayat
record. Accordingly, the assessment extracts of the suit property were
transferred in the name of Sachin. Learned counsel for the appellant
thus submits that the suit property was a joint family property of
Mukinda and that Sachin, as co-sharer, has executed a sale deed in
favour of defendant no.1. Learned counsel for the appellant submits
that there is no dispute that Sachin was the owner of the suit property.
However, the suit property being joint family property, Sachin, as a co-
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sharer, was entitled to execute the sale deed in favour of defendant
no. 1.
5. Learned counsel for the appellant thus submits that inspite of the
aforesaid documents, both the courts erred in holding that the suit
property was exclusive ownership property of Vilas. He thus submits
that both the courts have recorded a perverse finding on the exclusive
ownership of Vilas on the suit property. Thus, the learned counsel for
the appellant submits that the Second Appeal raises substantial
questions of law on the suit property being joint family property, and
thus Sachin was entitled to execute the sale deed in favour of
defendant no. 1.
6. Learned counsel for respondent no. 1 - original plaintiff supports
the impugned judgments and decrees. He submits that the sale deed
at Exhibit No. 119 was admittedly executed in the exclusive name of
Vilas. He thus submits that Vilas was the exclusive owner of the suit
property in view of the registered sale deed dated 26 th December
1986. He submits that the plaintiff, being the widow of Vilas, has
inherited the property and thus filed the suit based on the exclusive
title over the suit property. He submitted that the sale deed in favour of
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Vilas was never under challenge. He thus submitted that there was no
question that by way of any family arrangement, the suit property could
be given to Sachin. He thus submits that the family arrangement or
the application filed by Vilas cannot be termed as a document of a
valid transfer of the title to Sachin.
7. He further submits that even otherwise, it is not the case of the
defendants that any undivided share of Sachin was transferred in
favour of defendant no.1. He further submits that the document relied
upon by the learned counsel for the appellant in support of the
contention that the suit property was a joint family property are not
relatable to execution of the sale deed in favour of Vilas. Thus, in the
absence of any challenge to the sale deed in the name of Vilas, there
was no question of the suit property belonging to the joint family. He
thus submits that the suit, which is filed based on title by relying upon
a registered sale deed in favour of Vilas, is rightly decreed by both the
Courts by declaring that the sale deed executed by Sachin in favour of
defendant no. 1 is a void document and thus defendant no. 1 would
not get any right to retain the possession of the suit property. He thus
submits that the Second Appeal does not raise any question of law.
12-SA-393-2021.docx
8. I have considered the submissions made by both the parties.
Perused the papers of the Second Appeal as well as the paper book of
the district court. The suit is filed on the ground that the plaintiff is the
owner of the suit property being the widow of Vilas who had purchased
the suit property by way of a registered sale deed dated 26 th
December 1986. The execution of the sale deed in the name of Vilas is
not disputed by any party. A perusal of the written statement of Sachin
(defendant no. 2) indicates that he claims exclusive ownership of the
suit property based on an agreement executed by Vilas. Thus, a
perusal of the pleadings of defendant no. 2 indicates that he claimed
exclusive ownership over the suit property and thus executed the sale
deed in favour of defendant no. 1.
9. A perusal of the reasons recorded by the trial court indicates that
all the documents on record, as well as oral evidence, were examined,
and the trial court disbelieved the case of defendant no. 2 that he had
any right to execute the sale deed, claiming to be the owner of the suit
property. The documents with regard to family arrangement and
assessment extracts are also taken into consideration by the trial court
and thus held that the document of sale deed in favour of Vilas would
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prevail over the gram panchayat record. The trial court has also
referred to the pending Regular Civil Suit No. 62 of 2002 for the
partition of the joint family properties of Mukinda. It is not in dispute
that the suit property is not part of the suit filed for partition of the joint
family properties.
10. The case of Sachin (defendant no. 2) appears to be of ownership
over the suit property based on the application filed by Vilas before the
Gram Panchayat for transferring the property in the name of defendant
no.2. The assessment extracts before the gram panchayat, even if in
the name of defendant no. 2, the same would not confer any title on
defendant no. 2 to transfer the suit property. Thus, in view of the
aforesaid reasons recorded by the trial court, this court is not required
to examine the evidence with reference to the arguments made on
behalf of the appellant that the suit property was a joint family property.
11. The reasons recorded by the trial court and confirmed by the
First Appellate court indicate that all the documentary as well as oral
evidence was taken into consideration for accepting the exclusive
ownership of Vilas over the suit property in view of the registered
document of sale deed. It is also important to note that the suit for the
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partition of the joint family properties of Mukinda excludes the suit
property. Thus, the ground raised on the suit property being joint family
property of Mukinda would not require any consideration by this court.
12. The second ground raised with regard to the execution of the
sale deed in favour of the appellant by defendant no. 2 as co-sharer
does not find any support in the pleading and evidence produced by
defendant no. 2. Defendant no. 2's case was that he had exclusive
ownership over the suit property and rightly executed the sale deed in
favour of defendant no.1. Thus, in view of the pleading of defendant
no. 1 regarding his exclusive ownership, the issue with regard to
defendant no.2 executing sale deed as co-sharer cannot be
considered for the first time in Second Appeal.
13. The reasons recorded by the First Appellate Court indicate that
all the documents and oral evidence are reexamined by the court, and
the document of sale deed in favour of Vilas is accepted as an
absolute document of title of Vilas. Thus, once the sale deed in favour
of Vilas is not challenged, I see no reason for defendant no. 2 getting
any right to execute the sale deed in favour of a third party. It was
sought to be argued on behalf of the appellant that the entire property,
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which is the subject matter of the sale deed in favour of Vilas, is not
transferred in the name of the appellant; however, the same would not
confer any right in favour of defendant no. 2 to execute the sale deed
in respect of part of the property which is the subject matter of sale
deed in favour of Vilas. Thus, the suit filed by the wife of Vilas seeking
declaration and possession is purely based on the title of the suit
property. Once there is no valid document conferring any right, title or
interest in the favour of defendant no. 2, the sale deed executed by
defendant no. 2 in favour of defendant no. 1 would not confer any title
in favour of defendant no.1. Thus, for want of any valid document of
title defendant no. 1 i.e. present appellant would not be entitled to
retain possession of the suit property.
14. I do not find any illegality or perversity in the reasons recorded
by both the courts accepting the plaintiff's title through Vilas. Thus, the
grounds raised on behalf of the appellant would not require any
consideration in the present Second Appeal. The second Appeal does
not raise any substantial question of law. Hence, the Second Appeal is
dismissed.
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15. In view of the dismissal of the Second Appeal, Civil Application
No. 1068 of 2019 is dismissed as infructuous.
16. Learned counsel for the appellant submits that during the
pendency of the Second Appeal, the appellant's possession was
protected as a statement was made on behalf of respondent no. 1 that
the decree would not be executed. He, therefore, submits that the
appellant's possession be protected for six weeks.
17. Learned counsel for respondent no.1 does not dispute that such
a statement was made. However, he submits that, as per his
instructions, the appellant has already vacated the suit property.
However, since the decree is for possession of the suit property, the
same shall not be executed for six weeks, if not yet executed, subject
to the appellant not creating any third party interest or parting with
possession in favour of any third party.
[GAURI GODSE, J.]
