[Cites 2, Cited by 0]
Bombay High Court
Ganesh Kishanrao Pansare vs Arun Ankush Nawale on 12 December, 2025
2025:BHC-AUG:34883
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 450 OF 2008
WITH
CIVIL APPLICATION NO. 1023/2015 IN SA/450/2018
WITH
CIVIL APPLICATION NO. 15740/2022 IN SA/450/2018
WITH
CIVIL APPLICATION NO.12289/2014 IN SA/450/2018
1) Smt. Shantabai Shridhar Pansare,
Age 84 years, Occ. Nil.
2) Smt. Lila Krishnarao Pansare,
Age 69 years, Occ. Nil.
3) Smt. Ushabai Bapu Pansare,
Age 56 years, Occ. Household.
4) Shri. Ganesh Kishanrao Pansare,
Age 39 years,occ. Agriculture,
All r/o. Takaliwalit Tq. Shrigonda,
Dist. Ahmednagar, at present
147, Shaneshwar Peth, Pune.
5) Vidhya d/o Kishanrao Pansare,
Age 58 years, Occ. Housewife,
R/o. 147, Shaneshwar Peth, Pune.
6) Mira w/o Dhananjay Wadkar,
Age 57 years, Occ. Housewife,
R/o. Survey No. 44, Hanuman Nagar,
Pond Road, Near Ekta Mitra Mandal,
Kothrud, Ex-Servicemen Colony,
Pune, Tq. & Dist. Pune. ... Appellants
(Orig. Defendants)
VERSUS
Shri. Arun Ankush Nawale,
Age 48 years, Occ. Agricultural,
R/o. Village Takaliwalit Tq. Shrigonda,
Dist. Ahmednagar ... Respondent
(Orig. Plaintiff)
...
1/9
SA 450 08 451 08.odt
SECOND APPEAL NO. 451 OF 2008
Shri. Ganesh Kishanrao Pansare,
Age 39 years, Occ. Agricultural,
R/o. Village Takliwalit, Tq. Shrigonda,
Dist. Ahmednagar. ... Appellant.
(Orig. Defendant)
VERSUS
1. Shri. Arun Ankush Nawale,
Age 48 years, Occ. Agricultural,
R/o. Village Takaliwalit, Tq. Shrigonda,
Dist. Ahmednagar. ... Respondent.
(Orig. Plaintiff)
...
Mr. Arun G. Dalal,advocate for appellant No. 4.
Mr. G.N. Chincholkar, Advocate for Respondent nos. 5 and 6.
Mr. V.S. Bedre, Advocate for sole respondent
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 09.12.2025
PRONOUNCED ON : 12.12.2025
JUDGMENT :
Heard both sides finally.
2. Both appeals are emanating from common judgment and decree
passed by the Trial Court in Regular Civil Suit No. 164/2001 and Regular
Civil Suit No. 177/2004 and thereafter common judgment of Appellate
Court in Regular Civil Appeal No. 241/2006 and 250/2006.
3. The facts and evidence on record are common. I propose to decide
the appeals by common judgment by referring to the paper book of Second
Appeal No. 451/2008, the parties are referred to as to the original status of
Regular Civil Suit No. 164/2001.
4. At the outset, it is necessary to clarify that appellant No. 5 and 6 were
not parties before the courts below. They had filed application for adding
them parties, as appellant nos. 1 to 3 died, and they are the legal
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representative, along with appellant no. 4. The appellants were represented
by advocate Mr. Dalal, and added appellants are represented by learned
counsel Mr. G.N. Chincholkar.
5. Following substantial questions of law were framed by this Court on
08.08.2025 :
"A) Whether the First Appellate Court has committed
error in answering the issue with regard to the ownership
of the suit property by Pansare, when there was admission
of Nawale in his suit that Pansares' are owners of the suit
property ?
(B) Whether the First Appellate Court has committed
error in decreeing the suit filed by Nawale and dismissing
the suit filed by Pansare by considering the evidence in
respect of matters which are not pleaded by Nawale ?
(C) Whether the First Appellate Court has committed
error in not considering the admitted fact that the
possession of the Nawale on the suit property was
permissive one ?
(D) Whether the First Appellate Court has committed
error in dismissal of suit of Pansare when the title of the
Pansare was not in dispute nor there was a dispute with
regard the Nawale being in permissive possession of suit
property ?
6. The controversy pertains to land Gat No. 7A admeasuring 5-H 17-Are,
situated at Takali Kadevalit Tq. Shrigonda, District Ahmednagar, which is
presently in the possession of plaintiff Navle. He had filed Regular Civil Suit
No. 164/2001 against appellant no. 4 for injunction. The appellants had
filed Regular Civil Suit No. 177/2004 for possession against plaintiff Navle.
By common judgment and decree dated 23.06.2006, Regular Civil Suit No.
164/2001 was dismissed and Regular Civil Suit No. 177/2004 was decreed.
Regular Civil Appeal No. 241/2006 was preferred against decree of Regular
Civil Suit No. 177/2004 and Regular Civil Appeal No. 250/2006 was
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preferred from decree of Regular Civil Suit No. 164/2001 by plaintiff Navle.
The lower appellate Court by common judgment dated 10.03.2008 reversed
the decree of Trial Court in both suits thereby granting injunction in favour
of plaintiff Navle. This is the track record of the present second appeals.
7. It's the case of plaintiff Navle that the suit land was belonging to
Dattatraya Pansare, Bapu Pansare, appellant No. 1 and appellant no. 4 and
that was in his possession since 1987-1988. In the year 1993-1994,
defendant/Pansare is stated to have agreed to sell the suit land for Rs.
4,25,000/- to plaintiff Navle. Earnest of Rs. 12,000/- was given to the
defendant/Pansare. It is further contended that as the suit land was of
Devasthan Inam land, permission was required for selling it. It is further
contended that from time to time the consideration was paid in installments
and plaintiff/Navle developed the land. His possession was obstructed by
the defendant Pansare and that was a cause to file suit for injunction
simplisitor. On the same pleadings Regular Civil Suit No. 177/2004 filed by
defendant Pansare for possession is contested by plaintiff Navle.
8. As against that the claim of the defendant/Pansare is that the suit land
was handed over to the plaintiff Navle for the year 1993-1994 on rent of
Rs. 12000/-After expiry of the year the possession was resumed by them. In
collusion with the revenue authorities record was created by plaintiff Navle
showing his possession. The parties were litigating before the revenue
forums and reached up to this High Court in Writ Petition No. 2527/2002. It
is further contended that the defendant Pansare family are the owners of the
suit land and they were in possession. They were dispossessed on
29.06.2004. Hence, Regular Civil Suit No. 177/2004 was filed for
possession. On the same pleadings Regular Civil Suit No. 164/2001 was
filed by the plaintiff Navle, is contested.
9. After considering oral and documentary evidence on record trial court
held that plaintiff/Navle admitted title of the defendant Pansare. It was
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agreed between them to sell suit land but no written document was
executed. The possession of plaintiff Arun is recorded to be that of trespasser
after 1993-1994, hence his suit for injunction was dismissed and decree of
possession was passed.
10. The lower Appellate Court by common judgment and decree dated
10.03.2008 recorded that there is no tangible evidence of title of the
defendant Pansare. The suit land is recorded to be Devasthan Inam land
and Sindiya family was the original owner. The suit for possession is held to
be bad for non joinder of necessary parties. It is further recorded that
defendant Pansare failed to prove dispossession on 29.06.2004. Hence, the
decree in both suits passed by the Trial Court is reversed by the Lower
Appellate Court.
11. Learned counsel for the appellant submits that it is a grave error of
jurisdiction to hold that defendant Pansare's family are not the owners of the
suit land when at various places and in unequivocal pleadings plaintiff Navle
admitted their title. It is further submitted that the dispute between Pansare
family and Sindiya family was in respect of revenue record and not for
ownership of the suit land. Hence, it is perversity to record that Sindiya
family was owner and necessary party. It is submitted that Sindiya family
did not claim ownership over the suit land and the only owner can be
Pansare family.
12. Learned counsel further submitted that when plaintiff/Navle has put
forth theory of agreement to sell then the ownership of Pansare family
should not have been disputed. It is submitted that possession of plaintiff
Navle is unlawful. The judgment and decree passed by the Trial Court
should have been upheld. It is further submitted it is not pleaded by
plaintiff Navle that Sandiya family was the original owner.
13. Per contra, learned counsel Mr. Bendre appearing for plaintiff Navle
supports impugned judgment and decree passed by the lower Appellate
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Court. He would submit that his client was cultivating the suit land since
1987 and continuously in possession, which is corroborated by revenue
record. He would therefore submit that the suit land was Devasthan Inam
land and no document of title was placed on record by Pansare family. It is
further submitted that Pansare family miserably failed to prove alleged
dispossession on 29.06.2004. It is further submitted that the possession of
plaintiff Navle is settled and lawful. It is further submitted that proceedings
are pending in the High Court in between Pansare family and Sindiya family.
The substantial question of law needs to be answered in his favour.
14. I have considered rival submissions of the parties. With the assistance
of both the counsels, I have gone through the record and proceedings also.
Plaintiff Navle is in possession of the suit land and injunction is operating in
his favour.
15. I have gone through paragraph no. 2 of the plaint of Regular Civil Suit
No. 164/2001, paragraph No. 3 of examination in chief of P.W. 1-Ankush,
P.W. 2 Prakash and P.W. 3 Suresh. I have also gone through paragraph no. 11
of the written statement of Navle filed in Regular Civil Suit No. 177/2004.
These pleadings of Navle unequivocally admits that suit land belongs to
Dattatraya Shridhar Pansare, Bapu Shridhar Pansare, Ganesh Krushnarao
Pansare- appellant No. 4 and Shantabai Shridhar Pansare-appellant no. 1.
Not only that it is own case of Navle that he was inducted in the suit land by
above persons and he is cultivating the same. It is admitted by PW 1 Ankush
Navle in the cross-examination that Pansare family is the owner of the suit
land and he had agreed to purchase the suit land in the year 1993-1994.
Mr. Navle and his witnesses admitted that the consideration was fixed at Rs.
4,25,000/- and out of that Rs. 12,000/- was paid to Pansare family and
further installments were paid, to them aggregating Rs. 3,00,000/-.
16. It has been no where pleaded or brought on record from the
depositions of Mr. Navle and his witnesses that members of Pansare family
SA 450 08 451 08.odt
were not the owners of the suit land and it was ownership of either any
Devasthan or Sindiya family. His plaint in Regular Civil Suit No. 164/2001
does not spell out any plea that the ownership of the suit land was of any
third person. Under these circumstances when ownership of the members of
Pansare family is admitted by Mr. Navle, the lower Appellate Court
committed grave error of jurisdiction in holding that no tangible material is
placed on record to show ownership of Pansre family.
17. Its a case where the ownership was not in dispute. Presuming that the
title was disputed by Mr. Navle, then instead of filing Regular Civil Suit No.
164/2001, simplicitor for injunction he should have claimed relief of
declaration. His possession was challenged by Pansare family in the said
suit. His suit for injunction simplicitor is defective one, in the wake of law
laid down by the Supreme Court in Annathula Sudhakar Vs. P. Buchhi
Reddy; AIR 2008 Supreme Court 2033. This aspect of the matter is lost
sight of by both Courts below. Hence, the substantial questions formulated
in terms of 'A' and 'B' needs to be answered in favour of Pansare family.
18. Plaintiff Navle is recorded to be in continuous possession of the suit
land. He claims to be purchaser. It is admitted that no agreement was
executed between the parties and filed on record. In the absence of any
written agreement his possession cannot be protected under Section 53A of
the Transfer of Property Act. He has not even filed suit for specific
performance of contract. He enjoyed possession without taking proper
recourse of law. The ownership is that of Pansare family. In such
circumstances, he failed to show validity of his possession.
19. Its a trite law that a person in settled possession cannot be
dispossessed without following due process of law. Regular Civil Suit No.
177/2004 preferred by Pansare family for possession is due process of law to
secure possession. There is no material on record to show that after 1993-
1994, the possession of Mr. Navle culminated in lawful possession. Though
SA 450 08 451 08.odt
Pansare family failed to prove dispossession on 29.06.2004, it does not make
any difference. I am of the considered view that Navle is liable to hand
over possession and decree passed by the Trial Court is legal and valid.
20. It is tried to be pointed out by learned counsel Mr. Bedre that
proceedings are pending between Pansare family and Sindiya family in High
Court. It is tried to be contended that the suit land is the Devasthan Inam
land. No material is placed on record to show that erstwhile owner Sindiya
family has ever claimed ownership and title over the suit land. Writ petition
No. 2527/2002 is arising out of the revenue proceedings. No substantive
proceedings have been filed by Sindiya family claiming title over the suit
land against Pansare family. Neither was any claim of possession on title
was made by them. Hence, it is patent illegality to non suit Pansare family
for non joinder of necessary parties.
21. I have already recorded my finding that possession of plaintiff Navle is
unlawful after 1993-1994. Initially his possession can be said to be
permissive when he was inducted by Pansare family. Later on, in the
absence of any attempt to secure the title by resorting to suit for specific
performance of contract, the possession cannot be said to be lawful. The
substantial questions of law in terms of 'C' and 'D' have to be answered in
favour of Pansare family.
22. For the aforesaid reasons, I find that the common judgment and
decree passed by the lower Appellate Court is unsustainable and I pass
following order.
ORDER
(i) Common judgment and order dated 10.03.2008
passed by lower Appellate Court in Regular Civil Appeal
No. 241/2006 and Regular Civil Appeal No. 250/2006 are
quashed and set aside.
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(ii) Common judgment and decree dated 23.06.2001
passed by Jt. Civil Judge, Junior Division, Shrigonda
dismissing Regular Civil Suit No. 164/2001 and decreeing
the Regular Civil Suit No. 177/2004 shall stand restored
and upheld.
(iii) The possession shall be handed over by plaintiff
Navle to Pansare family within a period of one month.
(iv) Decree be drawn accordingly.
23. Pending Civil Applications are disposed of.
( SHAILESH P. BRAHME, J.)
mkd/-
