Bombay High Court
Sau. Kamubai Ashok Sabate And Others vs Devidas S/O Rambhau Nagose And Others on 24 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1347
-1- 20 sa 305.18.jud. odt..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 305 OF 2018
APPELLANTS : 1. Sau. Kamubai Ashok Sabate,
(Original Plaintiffs on R.A.) Aged about 40 years, Occ:
Household, R/o Bori, Tah.
Maregaon, Distt. Yeotmal
2. Sau. Sarla Shriram Zile,
Aged about 52 years, occ: Household,
R/o Talegaon, Tq. Warora, Dist.
Chandrapur.
3. Sau. Nirmala Devrao Bhonde,
Age about 50 years, Occ: Household,
r/o Bhadrawati, Tq. Bhadrawati,
Dist. Chandrapur.
4. Sau. Baby Dilip Shidam, Aged about
42 years, Occ: Household,
r/o Baldi, Tq. Mul, Dist. Chandrapur
//VERSUS//
RESPONDENTS : 1. Devidas s/o Rambhau Nagose,
(Original) Aged about 39 years, Occ:
Agriculturist, R/o Waghnakh, Ta.
Warora Distt. Chandrapur
2. Abhiman Natthu Gadge,
Aged 47 years, Occ: Agriculturist, R/o
Yewati, Tah. Warora, Dist.
Chandrapur
3. Gahudas Rambhau Fulzele,
Aged about 39 years, Occ:
Agriculturist, R/o Jalka Tq. Warora,
Dist. Chandrapur
-2- 20 sa 305.18.jud. odt..odt
4. Tryambak Rambhau fulzele,
Age 42 years, Occu. Household,
R/o Khandoba Ward, Jai Maharashtra
Chowk, Hinganghat, Tq. Hinganghat,
District Wardha
**************************************************************
Mr. C.S. Dhore, Advocate for the appellants.
Mr. R.D. Bhuibhar, Advocate for respondent No.1.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 24th JANUARY, 2024
ORAL JUDGMENT
1. Heard.
2. ADMIT. Taken up for final disposal forthwith by the
consent of learned advocate for the respective parties.
3. In this second appeal, the challenge is to the judgment
and order dated 15.01.2018 passed by the learned District Judge-1
Warora, District Chandrapur, whereby the learned Judge partly
allowed the appeal and set aside the judgment and decreed dated
23.04.2010 passed by 2nd Joint Civil Judge (Junior Division),
-3- 20 sa 305.18.jud. odt..odt
Warora in Regular Civil Suit No.16/2001 in favour of the
appellants with regard to the land bearing survey No.95.
4. At the stage of notice, the following substantial questions
of law have been framed:
"I) The trial Court having held the sale-deed
dated 28.04.2000 executed by defendant No.1 in favour
of defendant Nos.2 and 3 to be not binding on the
plaintiffs, whether in absence of any appeal by the
defendant Nos.2 and 3 challenging the decree of the
trial Court, was the appellate Court justified in declaring
that said sale-deed was binding on the plaintiffs?
II) Whether the appellate Court was legally
justified in refusing to grant relief to the plaintiffs with
regard to the sale deed dated 14.03.2001?"
5. The facts in brief leading to the above questions need to
be stated.
Appellant Nos.1 to 3 are the original plaintiffs and
appellant No.4 is the original defendant No.4. Respondent No.1 is
the brother of the appellants. The plaintiffs filed the suit seeking
-4- 20 sa 305.18.jud. odt..odt
partition and separate possession of the suit property, more
particularly described in the plaint. According to the plaintiffs, the
ancestral property, which was in the hands of their father, after his
death, devolved upon them. They contended that the transfer of
survey No.95 by defendant No.1, their brother, in favour of
original defendant Nos.2, 3 and defendant 5, was illegal and as
such, not binding on them. On these averments, they claimed
partition of the suit property.
6. Defendant No.1, their brother, did not contest the suit.
Defendant Nos.2 and 3 filed their separate written statements and
contended that defendant No.1 was the absolute owner of field
survey No.95 and by a registered sale deed dated 28.04.2000 for
consideration of Rs.75,000/-, he sold 1.62 H.R. land to them.
According to them, during the lifetime of the father of plaintiffs
and defendant No.1, there was a partition between father and
defendant No.1 and in the said partition, land survey No.95 was
allotted to the share of defendant No.1. They contended that, as
such, defendant No.1 became the absolute owner of the said
property. On these contentions, they opposed the suit.
-5- 20 sa 305.18.jud. odt..odt
7. Defendant No.5 contended that defendant No.1 being
the absolute owner of field bearing survey No.95, sold 1.70 H.R.
land to him by registered sale deed on 14.03.2001, for a
consideration of Rs.75,000/-. As far as defendant No.5 is
concerned, he has reiterated the stand of defendant Nos. 2 and 3
viz-a-viz the rights, titles and interests of defendant No.1 is
concerned.
8. Learned Judge of the Trial Court, on consideration of
the evidence found the plaintiff Nos.1 to 3 and defendant No.4
entitled to get an equal share in the suit property with defendant
No.1 and accordingly, decreed the suit. Defendant Nos. 2 and 3
did not challenge the judgment and decree. The judgment and
decree passed in the Trial Court was challenged by the defendant
No.5. The First Appellate Court, on consideration of the evidence
on record, found that the finding of fact recorded by the trial Court
with regard to the land bearing survey No.95, is concerned, was
not based on proper appreciation of evidence and accordingly, that
was set aside. Being aggrieved by this judgment and order, the
appellants have come before this Court in appeal. At the stage of
notice, the above substantial questions of law have been framed.
-6- 20 sa 305.18.jud. odt..odt
9. I have heard Mr. C.S. Dhore, learned Advocate for the
appellants and Mr. R.D. Bhuibhar, learned Advocate for
respondent No.1. Perused the record and proceedings.
10. Learned Advocate for the appellants submitted that the
finding of fact recorded by the learned trial Judge with regard to
survey No.95 was reversed without assigning any reason and
without any evidence by the Appellate Court. Learned Advocate
pointed out that the learned trial Judge did not believe the
partition deed dated 20.11.1996, Exh. 86. It is pointed out that
the trial Court recorded a finding that a partition deed cannot be
taken into consideration inasmuch as the contents of the same were
not proved. Learned advocate took me through the relevant
observations made by the Appellate Court and submitted that on
the wrong premise, the partition deed was made the basis of the
reversal of the decree by the Appellate Court. Learned Advocate
further pointed out that the right of the defendant No.1 as absolute
owner of the property asserted on the basis of the partition deed
was not established. Learned Advocate submitted that failure to
appreciate the evidence in this manner has resulted in perversity.
Learned Advocate further submitted that defendant Nos.2 and 3
have not challenged the judgment and decree passed by the trial
-7- 20 sa 305.18.jud. odt..odt
Court, but while considering the appeal filed by the defendant
No.5 the judgment and decree in entity viz-a-viz survey No.95 was
reversed by the Appellate Court.
11. Learned Advocate for the respondent No.1 submitted
that the first Appellate Court has recorded cogent reasons while
reversing the finding of fact recorded by the trial Court on this
issue. Learned Advocate pointed out that the partition deed was a
registered document. Learned Advocate further pointed out that
defendant Nos.2 and 3 as well as defendant No.5 had contended
in their respective written statements that on the basis of the
partition deed survey No.95 was allotted the share of defendant
No.1 and as such, he had become the absolute owner of the field.
Learned Advocate pointed out that the Sub Registrar was
examined to prove the document. It is further pointed out that
there was no objection either for production of document or to
give exhibit number to this document by the appellants. Learned
Advocate took me through the relevant part of the judgment of the
Appellate Court and pointed out that the learned Judge has
recorded reasons for placing implicit reliance on the evidence and
for setting aside the judgment and decree.
-8- 20 sa 305.18.jud. odt..odt
12. I am conscious of the fact that mere exhibiting a
document does not amount to proof of the contents of the
document. In a given case, the Court has to take into
consideration the facts of the case and the nature of the document.
Similarly, the Court has to consider the objection, if any, raised by
the party for exhibiting the document as well as the consequences,
keeping in mind the nature of the document and not objecting to
the procedure of exhibiting the document. In this case,
undisputedly, the plaintiffs are sisters of defendant No.1. The
defendant Nos.2, 3 and 5, in their written statements, put forth a
specific defence that the land bearing survey No.95 was allotted to
defendant No.1 in the partition between him and his father.
Defendant No.1 did not file a written statement and contest the
claim. The defendant Nos.2, 3 and 5 have tried their level best to
bring the appropriate evidence on record to justify their stand
taken in the written statement. It is evident that they have done all
that could have been done by a person of ordinary prudence placed
in their position. They summoned the Sub Registrar. The partition
deed was admittedly registered. The certified copy of the partition
deed was produced on record and marked as Exh. 86. The
plaintiffs did not object for exhibiting the document. It needs to
be stated that if the plaintiffs had objected for exhibiting the
-9- 20 sa 305.18.jud. odt..odt
document and the document had not been exhibited by the trial
Court then in that event, defendant Nos.2, 3 and 5 could have
summoned defendant No.1 to depose about that partition deed
because he was signatory to the said document. It is further
pertinent to mention at this stage that defendant No.1 did not file
the written statement and made any statement with regard to his
absolute right in the property. It is, therefore, apparent that the
learned Judge of the trial Court exhibited the certified copy of the
partition deed on the premise that there was no objection from the
plaintiffs and also the document was produced before the Court by
the Sub Registrar, before whom the original partition deed was
registered. It is evident that all these facts have been taken into
consideration by the learned District Judge-1. Learned District
Judge-1, in my view, has not committed any error or illegality while
reversing the finding of fact. The evidence has been properly
appreciated. As such, there is no perversity in the judgment. It is
further pertinent to mention that the conduct of the plaintiffs is
one of the factors that led the learned trial Judge to believe that
they had no objection for giving an exhibit mark to the partition
deed. It is pertinent to note that defendant Nos. 2, 3 and 5
categorically stated in their written statements that on the basis of
the registered partition deed, the defendant No.1 became the
-10- 20 sa 305.18.jud. odt..odt
absolute owner of the property. In my view, in the backdrop of this
situation, they were not only required to object for exhibiting the
document but, they were also required under the law to amend the
plaint and seek a declaration that the said partition deed was null
and void and as such, not binding on them.
13. In my view, therefore, I do not see any substance in the
appeal. Accordingly, the appeal deserves to be dismissed. In view
of the above, the questions are answered.
14. Second Appeal stands disposed of. No order as to costs.
Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 02/02/2024 18:14:47
