Bombay High Court
Mahadeo Haribhau Tayade And Another vs Narayan Kadaji Tayade And Others on 24 April, 2025
2025:BHC-AUG:12691
901-sa-294-1995.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 294 OF 1995
Mahadeo Haribhau Tayad (died)
Through its legal heirs
1-A. Kamalbai Mahadeo Tayad (wife)
Age: 55 years, Occu. Household
R/o. Ranjegaon, Post - Nathpur,
Tq. & Dist. Beed.
1-B. Manoj Mahadeo Tayad (Son)
Age: 34 years, Occu. Agriculture,
R/o. As above.
1-C. Sujeet Mahadeo Tayad (Son)
Age: 32 years, Occu. Agriculture,
R/o. As above.
1-D. Anita Chandrakant Nirmal (Daughter)
Age: 29 years, Occu. Household,
R/o. Limbaganesh, Tq. & Dist. Beed.
1-E. Sidharth Mahadeo Tayad (Son)
Age: 27 years, Occu. Agriculture,
R/o. Ranjegaon, Post - Nathpur,
Tq. & Dist. Beed.
2. Maruti s/o Haribhau Tayad
Died through his L.Rs.
2A. Mahendra s/o Maruti Tayad
Age: 58 years, Occ.: Labour,
2B. Harichandra s/o Maruti Tayad
Age: 40 years, Occ.: Labour,
2C. Sangita w/o Bhagwat Tekal,
Age: Major years, Occ.: Household,
All R/o: Ambika Nagar No. 2,
Bhimgarjana, Chal Road no. 16,
Vagle Estate, Thane,
Tq. & Dist.: Thane
901-sa-294-1995.odt
(2)
2D. Meena w/o Barikrao Kasbe
Age: Major years, Occ.: Household,
R/o: Maida Post Ghatsavali,
Dist: Beed ..Appellants
VERSUS
1) Narayan s/o Kadaji Tayad
Died Through his L.Rs.
1-A) Yemubai w/o Narayan Tayad
Age: 60 years, Occu. Agri. & Household,
R/o at post Nathapur Ranjegaon,
Tq. and Dist. Beed.
2) Kundalik s/o Kadaji Tayad
Died through his L..Rs.
2A) Sumita w/o Kundalik Tayad
Age: 65 years, Occ.: Household,
2B) Dattu s/o Kundalik Tayad
Age: 46 years, Occ.: Agri.
2C) Dilip s/o Kundalik Tayad
Age: 44 years, Occ.: Agri.
2D) Vinod s/o Kundalik Tayad
Age: 29 years, Occ.: Agri.
2.E) Kamal D/o. Kundalik Tayad,
@ Kamlabai W/o. Murlidhar Zine (Died)
through his L'Rs
2.E 1) Murlidhar Machhindra Zine,
Age: 45 years, Occu. Agri,
2.E2) Vijay Murlidhar Zine,
Age: 20 years, Occu. Agri,
Both R/o. Harshi Bk, Tq. Paithan
Dist. Chhatrapati Sambhaji Nagar
2F) Mangal Sukhdeo Potphode,
Age: 50 years, Occ.: Household,
901-sa-294-1995.odt
(3)
R/o: Rakshas Bhavan,
Tq. Georai, Dist. Beed.
3. Sitaram s/o Kadaji Tayad,
Age : 35 years, Occupation - Agriculture,
R/o. As Above.
4. Bhagwat s/o Atamaran Abuj,
Age : 22 years, Occupation Agriculture
R/o. As above.
5. Alka w/o Muktaram Chavan,
Age 31 years, Occupation Agriculture
R/o. As above. ..Respondents
...
Advocate for Appellants : Smt. C.S. Deshmukh
Advocate for Respondent Nos.1-A, 2-A to 2-F & 3 : Mr. S.S. Halkunde
Advocate for Respondent No.4 : Mr. N.J. Patil
...
CORAM : S.G. CHAPALGAONKAR, J.
DATED : APRIL 24, 2025
JUDGMENT :
1. The plaintiffs/appellants impugns judgment and decree
dated 21.06.1995 passed by learned District Judge, Beed in Regular
Civil Appeal No.194 of 1994, thereby upholding judgment and decree
dated 27.06.1994 passed by Civil Judge, Junior Division, Beed in
Regular Civil Suit No.202 of 1990, by which the suit of plaintiffs
seeking relief of declaration of ownership and perpetual injunction
came to be dismissed. (Hereinafter, parties are referred by original
status in the suit for the purpose of brevity and convenience).
2. Plaintiffs instituted suit claiming relief of declaration of
ownership and perpetual injunction in respect of suit land bearing
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Block No.164 situated at Village Ranjegaon, Taluka and District Beed.
According to plaintiffs, the suit land was ancestral property. It was
owned by their father Hariba, who expired on 14.05.1989.
Thereafter, name of plaintiffs have been mutated in revenue record
and they are in enjoyment and possession of property. Defendants,
who are unconcern of suit property obstructed in their possession.
Hence, they filed the suit.
3. Defendants filed written statement and admitted that
Hariba was the owner of suit property and further pleaded that on
24.04.1975, Hariba executed registered sale deed in their favour and
transferred ownership and possession of suit property to them. Since
then, they are in enjoyment of property. The consolidation authorities
while implementing scheme wrongly continued name of Hariba in
record. Plaintiffs by taking disadvantage of aforesaid mistake raised
claim for declaration of ownership and perpetual injunction. The Trial
Court after considering rival submissions and evaluation of evidence
dismissed the suit holding that plaintiffs failed to prove ownership
and possession over suit property. On other hand, accepted case of
defendants that they acquired ownership vide registered sale deed
dated 24.04.1975 and were put in possession of suit land. Aggrieved
plaintiffs filed appeal before the learned District Judge, who pleased
to uphold the decree of Trial Court and dismissed appeal.
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4. Plaintiffs filed present second appeal assailing concurrent
judgments and decree. This Court admitted the appeal on 12.09.1995
as per following order :
"Effect of the alleged admission of the appellant and whether
decree in favour of the defendant for possession in suit filed by
plaintiff was justified are substantial questions of law.
Admit."
5. The second appeal is taken up for final hearing on
aforesaid substantial question. Smt. C.S. Deshmukh, learned advocate
for appellants submits that appellants/plaintiffs have instituted suit
for declaration of ownership and perpetual injunction. The Trial
Court while dismissing suit, passed decree against plaintiff to hand
over possession of suit land to defendants within 60 days from the
date of order. The Appellate Court confirmed the same order.
According to her, in absence of counter claim by defendants, the
decree for possession could not have been passed. She would further
submit that stray admission given by plaintiff that they obtained
possession of suit land in pursuance to order of interim injunction
passed in suit could not have been interpreted to mean that plaintiffs
were not in possession of suit land at the time of institution of suit.
She would further submit that there are no enabling provisions under
the Civil Procedure Code that empowers Court to grant decree of
possession in favour of defendants in suit instituted by plaintiffs
seeking relief of declaration of ownership and perpetual injunction.
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According to her, the Trial Court exceeded the jurisdiction. The
Appellate Court failed to exercise jurisdiction in tune with the scheme
of Order 41 Rule 33 of Civil Procedure Code. She would therefore
urge that second appeal deserves to be allowed and decree of
possession passed against plaintiffs is required to be quashed and set
aside.
6. Per contra, Mr. Halkunde, learned advocate appearing for
respondents supports judgment and decree as passed by the Courts.
He submits that plaintiffs obtained possession of suit property in
pursuance to interim injunction clamped against defendants. Finally
defendants are held to be owner of suit property. Plaintiffs cannot
retain possession obtained under interim order. The Trial Court
rightly exercised inherent powers while directing restoration of
possession to defendants.
7. Having considered submissions advanced, it can be
observed that plaintiffs instituted suit without disclosing that on
24.04.1975, their father transferred suit property under registered
sale deed to defendants. Defendants took specific plea as to
acquisition of ownership and possession under aforesaid sale deed.
The original sale deed is placed at Exhibit-68, which clearly shows
that suit property was put into possession of defendants on the date of
sale deed. Consequently, Mutation Entry No.366 was certified.
Pertinently, plaintiff no.1 admitted in cross-examination about
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execution of sale deed by plaintiff no.2 and his father in favour of
defendants to satisfy financial crunch due to illness of his father. He
admits that possession was delivered to defendants. He candidly
admits that they obtained possession of suit land after grant of
temporary injunction by Court in present suit. It is therefore evident
that on the date of institution of suit, plaintiffs were neither in
possession nor were they owners of suit land. Later on, plaintiffs
secured possession of suit land under interim injunction, clamped
against defendants in the suit. However on trial of suit, it is held that
plaintiffs have no right/title in the suit property. Hence, Trial Court
while dismissing suit, directed plaintiffs to restore possession of suit
land to defendants. In this background, it is to be examined whether
Courts are empowered to direct restoration of possession lost by
defendants pursuance to interim order is the question for
determination in this second appeal.
8. Section 144 of Civil Procedure Code empowers the Court
to restitute party, who has lost possession or property under decree of
Court, which is later on varied, reversed or set aside by Appellate
Court. The Privy Council in the case of Alexander Rodger Charles Vs.
Comptoir D'Escompte De Paris1 observed as under :
"It is the duty of the Court under Section 144 of the Civil
Procedure Code to 'place the parties in the position which they
would have occupied, but for such decree or such part thereof as
has been varied or reversed'.
1 17 ER 120
901-sa-294-1995.odt
Nor indeed does this duty or jurisdiction arise merely
under the said section. It is inherent in the general jurisdiction of
the Court to act rightly and fairly according to the circumstances
towards all parties involved."
9. Similarly, the Hon'ble Supreme Court of India in the case
of Binayak Swain Vs. Ramesh Chandra Panigrahi2 observed as under :
"The principle of the doctrine of restitution is that on the reversal
of a decree, the law imposes an obligation on the party to the suit
who received the benefit of the erroneous decree to make
restitution to the other party for what he has lost. This obligation
arises automatically on the reversal or modification of the decree
and necessarily carries with it the right to restitution of all that
has been done under the erroneous decree; and the Court in
making restitution is bound to restore the parties, so far as they
can be restored, to the same position they were in at the time
when the Court by its erroneous action had displaced them
from."
10. Although in this case, Section 144 of Civil Procedure
Code may not strictly apply but the aforesaid exposition of law by
Privy Council as well as the Hon'ble Supreme Court of India clearly
speaks out inherent duty of the Court to maintain fairness in the
judicial process. Party to the suit, who received benefit of order which
later on found unsustainable cannot be permitted to retain benefit
received. Similarly, party who suffered loss has right of restitution of
all his rights, which were lost under reversed order or decree. In
present case, plaintiffs were successful to convince the Trial Court at
2 (1966) 2 SCR 24, 27
901-sa-294-1995.odt
interim stage as regards to their possession over suit property and
under the garb of temporary injunction, they dispossessed defendants.
As admitted by plaintiff during evidence, on the date of institution of
suit, plaintiffs were not in possession of suit property. Defendants
suffered dispossession deference to interim injunction clamped
against them. Finally, plaintiffs are found disentitled for any relief.
The plaintiff no.1 admitted parting of possession to defendants when
sale deed was executed by his father. So also admits that got it back
only under temporary injunction order passed in present suit. The
admission of plaintiff is clear and unambigious. As such, defendants
have positively established their case of ownership and possession on
the basis of registered sale deed as on date of institution of suit. In
this background, the jurisdiction under Section 151 of Civil Procedure
Code empowering exercise of inherit powers comes into play. The
Courts are duty bound to exercise such powers to achieve ends of
justice and fairness. The Trial Court as well as Appellate Court are
therefore justified in exercising such powers in peculiar facts and
circumstances of the case.
11. In result, second appeal sans merit. Hence, dismissed.
(S.G. CHAPALGAONKAR, J.)
Mujaheed//
