Bombay High Court
Kashiram Dasaru Pakmode (Dead) Through ... vs Shantabai W/O Khatu Amborkar on 2 January, 2025
2025:BHC-NAG:75
1 sa-71-15j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 71 OF 2015
1. Kashiram Dasaru Pakmode (Dead)
through his legal representatives-
1A. Sau. Bebi W/o. Upasrao Fating
(now dead through legal heirs)
1A-1. Upasrao S/o. Lahanuji Phating,
Aged about 78 years, Occ. Cultivation,
1A-2. Subhash S/o. Upasrao Phating,
Aged about 50 years, Occ. Labour
1A-3. Kishor S/o. Upasrao Phating,
Aged about 45 years, Occ. Cultivation
All R/o. Ward No. 6, Shivaji Chowk,
Nagbhid, Tahsil- Naghbid,
District - Chandrapur.
1A-4. Sau. Chaya W/o. Kishor Bangadkar,
Aged about 40 years, Occ. Household
R/o. Ravindranath Tagore Ward,
Treasury Colony, Tahsil & District
Bhandara.
1B. Sau. Chhabi W/o. Nilkanth Agade,
Aged about 59 years, Occ. Household
& Cultivation, R/o. Nagbhid, Tahsil-
Naghbid, District- Chandrapur.
2. Prabhakar S/o. Kashiram Pakmode
Aged about 53 years,
3. Dinkar S/o. Kashiram Pakmode,
Aged about 53 years,
Both Cultivators, R/o. Talodhi
(Balapur), Tahsil- Nagbhid, . . . APPELLANTS
District- Chandrapur. (Ori Defd./Appellants)
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// V E R S U S //
Shantabai W/o. Khatu Amborkar,
Aged about 74 years, Occ. Household &
Cultivation, R/o. Talodhi (Balapur), Tahsil- . . . RESPONDENT
Nagbhid, District- Chandrapur. (Org. Plaintiff/Respd.)
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Shri Ashish Kadukar h/f. Shri Rohit Joshi, Advocate for appellants.
Ms. Sonal M. Tripathi, Advocate for respondent.
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CORAM :- M. W. CHANDWANI, J.
RESERVED ON :- 11.10.2024
PRONOUNCED ON :- 02.01.2025
JUDGMENT :
-
By consent of the parties, the matter is heard finally.
2. The appeal questions concurrent findings of the Trial Court
recorded in Regular Civil Suit No. 49/1991 vide judgment and decree
dated 27.01.2004 and the First Appellate Court recorded in Regular
Civil Appeal No. 52/2004 vide judgment and decree dated 28.08.2014
whereby, the suit of the respondent for possession came to be allowed
by the Trial Court and the First Appeal filed by the appellants came to
be dismissed by the First Appellate Court.
3. The present respondent is the sister of Kashiram Dasru
Pakmode, the original defendant, who claims that she purchased the
suit property from her father vide registered sale-deed dated
3 sa-71-15j.odt
19.02.1965 for a consideration of Rs.500/-. She wanted to construct
the suit house therefore, she shifted to another house and repaired the
suit house. Kashiram, the father of the present appellants was residing
in the ancestral house, which was in a dilapidated condition. In the
year 1980, during rainy season, Kashiram demanded the possession of
the suit house until his house is repaired. Accordingly, the respondent
permitted him to reside there temporarily. However, he failed to vacate
the suit premises and therefore, the respondent filed the suit for
possession and other ancillary reliefs.
4. Kashiram contested the suit inter alia contending that in
1948, he separated from his father. In the said oral partition he was
allotted the southern ½ portion of the ancestral house, whereas, the
northern portion was allotted to his brother Yashwant. Since then, he
was in possession of the suit house. The respondent obtained a
nominal sale-deed of the suit house from his father- Dasru. She tried
to get the suit house vacated but could not succeed and therefore,
Dasru, father of Kashiram purchased another house for the respondent.
Kashiram also came up with a case that the respondent relinquished
her right on 08.07.1975 in presence of the panchas and hence, sought
dismissal of the suit. In the alternative, Kashiram also took a defense
that he became the owner by adverse possession. During the pendency
of the suit, Kashiram died on 25.04.1998 and the appellants were
4 sa-71-15j.odt
brought on record. The Trial Court framed the following issues and
also answered the same while decreeing the suit.
Issue Findings
1. Whether plaintiff proves her title over the suit house ? Yes
2. Whether plaintiff proves that she allowed the defendants to Yes
reside in the Suit house for 3-4 months on 12/07/1980 ?
3. Whether plaintiff proves that defendant refused to vacate the Yes
suit house and prepared false grampanchayat record in
collusion with members of grampanchayat ?
4. Whether plaintiff is entitled for possession of the suit house ? Yes
5. What order and decree ? As per final
orders
6. Whether the instant suit is properly valued and proper court Yes
fees is paid thereon ?
5. An unsuccessful attempt was made by the appellants
before the learned District Judge, Chandrapur. Feeling aggrieved with
the decree of possession passed by the Trial Court and affirmed by the
First Appellate Court, the present appeal came to be filed.
6. The following substantial question of law came to be
framed on 08.06.2016:-
"i) Could the Sale Deed dated 19/02/1965 executed by Dasaru
Pakmode confer any title on the respondent/plaintiff in view of the
partition of the year 1948, whereunder the suit property was allotted to
the share of the original defendant No. 1 Kashiram Dasaru Pakmode ?
ii) Are not the contents of 30 years old document required to be
proved independently ? Have not the learned Courts below erred in
appreciating that presumption under Section 90 extends only to
execution and attestation of document and the contents have to be
proved independently ?"
5 sa-71-15j.odt
7. Mr. Rohit Joshi, learned counsel appearing on behalf of the
appellant submits that the suit property is the southern part of the
ancestral house owned by Dasru, father of Kashiram, Yashwant and the
respondent. In 1948, Kashiram got the suit property in oral partition,
whereas, Yashwant got the northern portion of the house. According to
him, once Kashiram, the father of the appellants got the suit house in
the oral partition, there was no authority left with Dasru to sell the
property to the respondent in the year 1965. According to him, though
Dasru was the sole owner, in wake of the blending of his share in the
common hotchpot; carrying out partition of the said property and
giving the suit property to Kashiram is permissible and therefore, since
1948, Kashiram is the owner of the suit property and hence, there is no
question of Dasru selling the property to the respondent, his daughter.
8. To show that self acquired property can be blended in
common hotchpot and subjected to division in oral partition, the
learned counsel for the appellant relied upon the decision of the
Supreme Court in the case of Kisansing Mohansing Balwar Vs. Vishnu
Balkrishna Joglekar 1, wherein it has been observed that a transaction
by which a father makes a division of his self-acquired property
between his sons will be regarded as a transaction by which he, in the
first instance, effects a severance of status between his sons; in the
1 1951 ILR 148
6 sa-71-15j.odt
second instance, he naturally throws into the hotchpot his self-acquired
property and then divides it between his sons whether equally or
unequally in accordance with his pleasure. Such a transaction cannot
possibly be regarded as one of the five transactions mentioned in the
Transfer of Property Act which requires registration, namely sale,
mortgage, exchange, lease for more than one year or a gift.
9. He also submits that the Trial Court and the First Appellate
Court failed to consider that the presumption under Section 90 of the
Indian Evidence Act is not applicable to contents of the document and
only realization of formal proof can be dispensed with.
10. Conversely, the learned counsel appearing on behalf of the
respondent submitted that the suit house is different than the house
which has been referred to by the appellants. According to her, there is
no dispute that deceased- Kashiram got the southern portion of the
house owned by Dasru which fell in his share in the partition whereas,
the northern portion fell in the share of Yashwant. According to her,
the suit house is different than the house which has been referred to by
the appellants. Further, Kashiram did not challenge the sale-deed
executed by his father in favour of the respondent in the year 1965 and
therefore, without challenge to the said sale-deed, the defense of the
appellants that the respondent is not the owner of the suit property
7 sa-71-15j.odt
does not stand. According to her, there is ample evidence on record
which shows that the respondent is the owner of the suit property. One
Gram Panchyat record shows her name as the owner of the property.
The notice came to be issued in the year 1990 for terminating the
license and therefore, according to her, the Trial Court has considered
all these aspects and rightly decreed the suit in favour of the
respondent. The First Appellate Court also did not find any substance
in the appeal of the appellants and therefore, the same came to be
dismissed.
11. Having heard the respective counsels and having gone
through the judgments impugned, it is seen that Dasru, the father of
Yashwnat, Shantabai and Kashiram, sold the suit house by a registered
sale-deed (Exh.105). The defense of Kashiram, the father of the
appellants was that, he got the suit house which is a part of their
ancestral property in partition whereas, remaining northern portion fell
in the share of his brother- Yashwant. The said oral partition took
place in 1948 whereas, the sale-deed in favour of the appellants has
been executed in the year 1965 by Dasru when he was not the owner
of the suit house in wake of partition in the year 1948.
12. The crux of the argument of the learned counsel for the
respondent is that, the house which fell in the share of Kashiram is
8 sa-71-15j.odt
different than the suit house. Perusal of the record, in particular the
Akhiv Patrika (record of rights) (Exh.144) goes to show that the
house/land situated at no. 244 stands in the name of Dashrath with a
note that the said house fell in the share of Dashrath in the partition.
Considering the submission of the learned counsel for the appellants, I
find that this house is subject matter of partition in the year 1948 and
½ portion of this house mentioned in Exh.141 fell in the share of
Kashiram. The record, in particular, another Akhiv Patrika (Record of
Right) (Exh.146) further reveals that Dashrath also owned one more
house in his name. The note in the Akhiv Patrika (Record of Right)
(Exh.146) goes to show that the said property has been purchased by
Dasru. Thus, it is not the case that Dasru had only one house.
13. That being said, the appellants may be correct in saying
that they got the house by way of partition in the year 1948.
Therefore, Kashiram got the southern portion of the ancestral property.
However, the submission of the appellants that the said house is the
suit house is not a correct one for more than one reasons. Firstly, the
sale-deed which was executed on 19.02.1965 by Dasru does not speak
about identification no. 244 mentioned in the Akhiv Patrika of the
ancestral house which demonstrates that the respondent has purchased
another house other than the ancestral one. This is also fortified by
sale-deed (Exh.123) executed in favour of Dasru whereby, Dasru
9 sa-71-15j.odt
purchased a house from one Jankibai. Rather, Dinkar (appellant no.
3/DW3), who has been examined on behalf of the appellants has
initially admitted that Dasru purchased the house where Yashwant is
residing.
14. Needless to mention that, even the sale-deed executed by
Dasru in favour of the plaintiff speaks about the remaining portion of
the house towards northern side wherein Yashwant is residing.
Therefore, just because Yaswant is residing in northern portion of the
suit house, the suit house cannot be said to be the ancestral house
which Kashiram got in partition. In view of the material available on
record, the stray admission by the respondent's witness Kashiram
Madankar contrary to his examination-in-chief admitting the four
boundaries of the suit house as of the ancestral house will not help the
appellants.
15. Sofaras, the submission of the learned counsel for the
appellants that the sale-deed (Exh.123) has not been proven in
accordance with law of evidence is concerned, let me say that
Kashiram, in his written statement has admitted execution of the sale-
deed with a rider that the said sale-deed is a nominal one. Thus, the
fact remains that execution of sale-deed of the suit house is admitted.
Once the sale-deed is admitted, though with a rider, it is not obligatory
10 sa-71-15j.odt
on the part of Shantabai to formally prove the sale-deed as per the
Indian Evidence Act. Whether the sale-deed is a nominal one is
another aspect. Therefore, the decision of the Supreme Court in the
cases of City Municipal Council, Bhalki by its Chief Officer Vs. Gurappa
(dead) by L.Rs. 2 and Union of India Vs. Vasavi Co-operative Housing
Society Ltd. 3 stating that onus is upon the plaintiff to prove his title
independently will not be applicable to the case in hand. In wake of
the findings of the Trial Court that the suit house is different than the
ancestral house, which is a correct finding and for the reasons
mentioned above, the substantive question of law no.1 does not arise.
16. Likewise, in wake of the admission of Kashiram in his
written statement regarding execution of the sale-deed by his father in
favour of Shantabai, even substantial question of law no. 2 does not
arise.
17. In view thereof, the appeal fails and consequently it is
dismissed.
(M. W. CHANDWANI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
2 2016 (5) Mh.L.J. 1
Designation: PA To Honourable Judge
3 2014 (3) Mh.L.J. 244
Date: 04/01/2025 17:22:39
