Bombay High Court
Ikbal Hamid Kotwadekar And Others vs Hasanminya Abdullah Kotwadekar And ... on 17 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:3265
Kishor 1/4 7 (17.1.24).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 7 OF 2023
WITH
INTERIM APPLICATION NO. 1879 OF 2020
Ikbal Hamid Kotwadekar & Others ...Appellants / Applicants
Versus
Hasanminya Abdullah Kotwadekar & Others ...Respondents
....
Mr. Onkar Virendra Warange, for Appellants / Applicants.
Mr. Sanjiv Sawant, a/w. Mr. Abhishek Matkar, Mr. Malhar Bageshwar for
Respondent Nos.2 to 10, 12 to 23, 25 and 27.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 17 JANUARY 2024.
P.C. :
The challenge in the present Appeal is to the Judgment and
Order dated 21 October 2017 passed by the District Judge, Ratnagiri
dismissing Civil Appeal No.51 of 2015 filed by the Appellants and
confirming decree dated 22 June 2015 passed by the 2nd Jt. Civil Judge
Senior Division, Ratnagiri.
2. Plaintiffs instituted Regular Civil Suit No.110 of 2009 for
recovery of possession, injunction and mesne profit. The Trial Court
proceeded to decree the suit by holding that Plaintiffs proved ownership over
the suit properties and that the Defendant Nos.1 to 7 and 12 to 15 failed to
Kishor 2/4 7 (17.1.24).doc
prove that they are co-sharers in the suit properties. Appellants' Appeal
against decree has been dismissed by the District Court and accordingly
Appellants have preferred present Second Appeal.
3. I have heard Mr. Warange, the learned counsel appearing for
Appellant and Mr. Sawant, the learned counsel appearing for Respondent
Nos.2 to 10.
4. After having considered submissions canvassed by the learned
counsel appearing for parties, it is seen that the suit properties were purchased
by Aayeshabai Abdulla Kotwadekar (Plaintiffs' mother) by way of sale deed
dated 26 Jun 1958. On account of the fact that the suit properties are
purchased by Aayeshabai exclusively in her name, the Appellants who claim
through Abdulla's brother Issak cannot claim any right, title or interest in the
suit properties. It is an admitted position that the sale-deed executed solely in
the name of Aayeshabai Abdulla Kotwadekar on 26 June 1958 was not
challenged by the other brothers Abbas or Issak in any manner.
5. Mr. Warange would contend that prior to execution of the sale-
deed in favour of Aayeshabai on 26 June 1958, the Appellants / or their
predecessors were occupying house property bearing No.402. He would
further submit that the purchase of suit properties in the name of Aayeshabai
was meant for entire family and not exclusively for her. He would take me
through various events that took place prior to 26 June 1958. According to
him, the suit properties were initially in the ownership of the father of
Abdulla, Abbas and Issak i. e. late Ali Kotwadekar. That the suit properties
were mortgaged from time to time by Abbas. That the Panch Yadi executed
on 29 August 1964 would indicate that the suit properties are joint family
Kishor 3/4 7 (17.1.24).doc
properties of Abdulla, Abbas and Issak. Abdulla erroneously claimed
exclusive right in the suit properties on account of redemption of mortgage
by him by paying an amount of Rs.2,100/- on account of alleged failure on
the part of Abbas and Issak to bear their share of Rs.700/- each for
redemption of said mortgage. He would submit that mere repayment of
entire amount of loan by Abdulla did not make him exclusive owner of the
suit property. That therefore even if Abdulla subsequently purchased the suit
property in the name of his wife Aaheshabai, she does not become exclusive
owner of the suit properties. The Panch Yadi dated 29 August 1964 s also
sought to be relied upon to prove that the Appellants possessed suit
properties prior to execution of the sale deed dated 26 June 1958 in favour of
Aayeshabai.
6. I am unable to agree with the contention of Mr. Warange that
Panch Yadi dated 29 August 1964 proves possession of suit properties by
Appellant. In fact the Panch Yadi proves that Issak refused to pay his share of
Rs.700/- for redemption of mortgage and left the house. Thus, Panch Yadi in
fact proves that Issak had left the house. Plaintiffs have came up with a
specific case that after purchase of the suit properties by Aayeshabai on 26
June 1958, she permitted Issak to occupy some portion of house property
No.409 as a gratuitous licensee. It is therefore difficult to believe that Issak
was occupying the house properties prior to purchase by Aayeshabai on 26
June 1958.
7. In my view, Appellants havemiserably failed to prove any title in
respect of the suit properties before the Trial Court. They are proved to be
mere gratuitous licensees without giving any title therein. Appellants /
Kishor 4/4 7 (17.1.24).doc
Defendants did not take any defence of acquisition of title by adverse
possession. In that view of the matter, no serious error can be traced in the
orders passed by the Trial Court and the First Appellate Court directing
possession of the suit properties to be given in favour of the Plaintiffs. No
substantial question of law is involved in the present Appeal. Second Appeal
is accordingly rejected. Since the Appeal is disposed of, nothing survives in
the Interim Application and it is also disposed of.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU Date:
KAMBLE
KAMBLE 2024.01.23
13:08:34 +0530
