Bombay High Court
Pravin Prabhakar Kanthe And Anor vs Kundlik Narayan Wagh on 19 June, 2025
2025:BHC-NAG:5846
1 SA101.07 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 101 OF 2007
APPELLANT : 1] Pravin Prabhakar Kanthe,
Aged about 33 years,
2] Pradeep Prabhakar Kanthe,
Aged about 31 years,
Both Cultivators, R/o Washim,
Tq. & Dist. Washim.
VERSUS
RESPONDENT : Kundlik Narayan Wagh,
Aged about 56 years, Occu. Cultivator,
R/o Dhumka, Tq. & Dist. Washim.
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Mr. V. A. Lohiya, Advocate I/by Mr. R. L. Khapre, Senior Advocate for
the appellants
Mr. Amit M. Kukday, Advocate for the respondent.
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CORAM : M. W. CHANDWANI, J.
DATE : JUNE 19, 2025
ORAL JUDGMENT
1. On 23.11.2007, this second appeal was admitted on the
following substantial question of law :
"Whether the Courts were justified in ignoring the
provisions of Section 95 of the Evidence Act which
could have enabled the Court as well as the plaintiffs
to decide and prove the question of identity of the
property owned by the plaintiffs ?
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2. The appellants are the original plaintiffs and the
respondent is the original defendant. The appellants have challenged
the dismissal of their suit for recovery of Rs.1,00,000/- filed against
the respondent claiming that the respondent sold to them his
agricultural land bearing Gat No. 243, area 1.89 HR situated at
Dhumkain, Tah. & Dist. Washim, for Rs.1,50,000/- by Sale Deed
dated 13.01.2000. In fact, the respondent was the owner of the land
bearing Gat No. 242, area 1.06 HR of which the appellants are in
possession. Therefore, he has to repay the consideration
proportionate to the difference in area to the appellants.
3. The respondent appeared and filed written statement,
inter alia contending that he had sold the property of Gat No. 243,
area 1.89 HR. Therefore, he sought rejection of the suit.
4. Learned Trial Court after framing the issues, dismissed
the suit observing that though Gat No. 242 has an area of 1.06 HR,
the respondent had sold the land Gat No. 243 which has an area of
1.89 HR. The appellants did not prove that the land Gat no. 243 is
less by 0.83 HR. An unsuccessful attempt was made before the first
Appellate Court which also agreed with the findings of the learned
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trial Court. Feeling aggrieved with the findings recorded by both the
Courts below, the present appeal came to be filed.
5. I have heard Mr. V. A. Lohiya, learned counsel instructed
by Mr. R. L. Khapre, learned Senior Advocate for the appellants and
Mr. Amit Kukday, learned counsel for the respondent. Perused the
record and proceedings.
6. Mr. Lohiya, learned counsel appearing on behalf of the
appellants submitted that the four boundaries mentioned in the sale
deed are of Gat No. 243 and the property which is possessed by the
appellant i.e. Gat no.242, are the same. In fact, in the 7/12 extract,
the respondent was wrongly shown as the owner of Gat no. 243 in
stead of Gat no. 242. According to him, the measurement report
reveals that Gat no. 242 has an area admeasuring 1.06 HR.
Therefore, the respondent is liable to refund the consideration in
proportion to the area which is found less in Gat no. 242 i.e. 0.83 HR.
According to him, after filing the appeal, the revenue authority
corrected the Gat number and it now shows the appellant as the
owner of Gat no. 242 having an area of 1.06 HR. According to him,
the sale deed mentions that Gat no. 243 has an area of 1.89 HR. The
4 SA101.07 (J).odt
four boundaries mentioned in the sale deed are in fact the four
boundaries of Gat no. 242. Therefore, by taking help of Section 95 of
the Indian Evidence Act, learned counsel submitted that the property
can be identified by the four boundaries mentioned in the sale deed
which has not been considered by the trial Court as well as by the first
Appellate Court. Hence, the findings recorded by both the Courts
need to be set aside.
7. Per contra, Mr. Kukday, learned counsel appearing on
behalf of the respondent submitted that there are concurrent findings
of both the Courts. So, unless perversity is shown, the High Court
cannot interfere with the findings of facts recorded by the trial Court
as well as the first Appellate Court. It is also contended that the trial
Court as well as the first Appellate Court have given reasons to justify
dismissal of the suit as well as the appeal. He supported the
judgment of the trial Court as well as the first Appellate Court.
8. Essentially the respondent is trying to demonstrate that
the land Gat no. 243 is in fact the land Gat no. 242 of area 1.06 HR
owned by him but in the 7/12 extract, the respondent is wrongly
shown as the owner of Gat no. 243 having an area of 1.89 HR.
5 SA101.07 (J).odt
Therefore, the appellants could only get the area of 1.06 HR.
According to him, the measurement report demonstrates the four
boundaries of the property which is in possession of the appellants,
i.e. Gat no. 242 and the same match with the sale deed from which it
can be gathered that the appellants were put in possession of Gat no.
242 and not Gat no.243.
9. Perusal of the record and the observations of the learned
trial Court as well as the first Appellate Court reveal that the
appellants failed to prove that the respondent in fact sold to them, the
property Gat no. 243 having an area of 1.06 HR and not 1.89 HR
which is recorded in their pleadings as well as in evidence. There are
concurrent findings of the trial Court and the first Appellate Court to
that effect.
10. It is submitted that, in the year 2006, the 7/12 extract
was corrected by the Revenue Authority and the appellants were
shown as the owners of land Gat no. 242 having an area of 1.06 HR
which supports the case of the appellants. There is nothing on record
to suggest that the corrections were made by the authority. Learned
counsel for the appellant submitted that he has the photocopy of the
6 SA101.07 (J).odt
7/12 extract to that effect. Be that as it may, even if the appellants
are in possession of those documents, the same ought to have been
brought on record. Even though there may be subsequent events post
dismissal of the suit but the fact remains as submitted by the learned
counsel that, the revenue records were corrected in 2006 i.e. post
decision of the suit. No steps were taken by the appellants before the
first Appellate Court for adducing additional evidence in that respect
demonstrating the reason why it could not be brought on record
before the trial Court. Even before this Court, this exercise has not
been done till date. Therefore, they cannot take benefit of it. There is
nothing on record to suggest that the respondent is the owner of Gat
no. 242 having area 1.06 HR. Therefore, the trial Court and the first
Appellate Court were fully justified in non-suiting the appellant.
11. So far as the submission of identification of the property
by the four boundaries is concerned, only on the basis of the four
boundaries it cannot be inferred that the respondent was in fact the
owner of Gat no. 242 unless the possibility of existence of similar four
boundaries of Gat no.243 is excluded by the appellants which they
failed to do. Therefore, the same will not come to the rescue of the
appellants to hold otherwise than what has been held by the trial
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Court as well as by the first Appellate Court, more particularly when
this ground was not raised by the appellant before the trial Court.
12. In view of the above, no interference is required in the
findings recorded by the trial Court as well as by the first Appellate
Court. The Second Appeal is accordingly dismissed.
13. The pending civil applications, if any, shall stand
disposed of accordingly. No costs.
(M.W.Chandwani, J.)
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 24/06/2025 16:59:50
