[Cites 2, Cited by 0]
Bombay High Court
Laxminarayan S/O Dagadulal Somani And ... vs Dipchand S/O Dagadulal Somani And ... on 15 April, 2026
2026:BHC-NAG:5781
-- 1 -- SA 464.2017 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 464 OF 2017
1) Laxminarayan S/o. Dagadulal Somani
(Dead) through LRs.
(a)Nandkishor Laxminarayan Somani
Aged - 42 years,
(b)Sudhir Laxminarayan Somani
Aged - 46 years,
(c) Gopal Laxminarayan Somani
Aged - 44 years,
All 1(a)to (c) R/o. Near P.D.Jain,
Ansingh,
Tq & Dist. Washim
(d)Surekha Kishorkumar Chandak,
Aged- 54 years, R/o. Kanchan Vihar,
.. Appellants
Near Ganpati Temple, P.O. Karanja (Original Defendant)
Tq. Karanja Dist. Washim
(e)Sujata w/o Omprakash Rathi,
Aged - 50 years, R/o. Near Gajanan
Hospital, Ansingh, Tq & Dist. Washim
(f) Shushma w/o Radheshyam Panpaliya
Aged - 48 years, R/o. Samarth
Apartment,
Snehal Nagar, Sewagram Road, Wardha
2) Gopal S/o. Laxminarayan Somani,
Aged 28 years, Occ : Agriculture
3) Nandkishor S/o. Laxminarayan Somani,
Aged 26 years, Occ : Agriculture
R 2 and 3 R/o. Ansing,
Tq. and Dist. Washim.
Versus
1) Dipchand S/o. Dagadulal Somani
Aged - 61 years, Occ : Agriculture,
R/o. Professor Colony, Washim, Dist.
Washim
2) Dr. Lalchand Dagadulal Somani, .. Respondents
Aged about 58 years, Occ : Doctor, (Original Plaintiffs)
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R/o. Main Road, Gondia,
Presently residing at Professor Colony,
Washim
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Mr. N. R. Saboo, Advocate for appellants.
Mr. S. P. Bhandarkar, Advocate for respondents.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : APRIL 06, 2026
PRONOUNCED ON : APRIL 15, 2026
JUDGMENT
(1) The present second appeal is preferred against the
judgment and decree dated 21/03/2017, passed by learned Principal
District Judge, Washim in R.C.A. No.128/2006, whereby the learned
first appellate Court has reversed the judgment and decree dated
02/11/2006 passed by the learned Joint Civil Judge Junior Division,
Washim in R.C.S.No.113/2004. The appellants in the present appeal
are legal representatives of deceased defendant No.1 and original
defendants No.2 and 3. The respondents are original plaintiffs.
(2) The plaintiffs had filed a suit for declaration, permanent
injunction and alternatively for possession of the suit property which is
an agricultural land bearing Gat No.114 admeasuring 4 Acres and 4
Gunthas and Gat No.64 admeasuring 5.54 H.R. situated at village
Sawali, Tahsil and District Washim. The suit property was sold by the
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plaintiff No.1 to plaintiff No.2. The plaintiffs and defendants are real
brothers. The father of the parties Late Dagadulal had six sons and
four daughters. It is the case of plaintiffs that during his lifetime,
Dagadulal had effected partition of the properties of the family in the
year 1958. This partition is oral partition according to the case of the
plaintiffs. The plaintiffs claimed that somewhere around the year 1974,
the defendant No.1 started raising dispute with respect to said partition
of the year 1958. The plaintiffs contended that the defendant No.1
executed a document titled as agreement on 28/12/1974 under which
he had relinquished property that had fallen to his share in the 1958
partition against house property at village Sawali, 100 Qtl. Cotton, 40
Qtl. Jowar, 15 gunny bags of Toor crop, 12 cattles and bullock cart and
also confirmed the partition of the year 1958.
(3) The plaintiffs contended that partition of the year 1958
was also admitted by the defendant No.1 under the document dated
28/12/1974 executed by him.
(4) It is the case of the plaintiffs that oral partition arrived at
in the year 1958 was acted upon by effecting mutation entries in the
names of respective parties to whom the properties were allotted in the
partition.
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(5) The plaintiffs further claimed that the defendant No.1 had
also in terms admitted the partition of the year 1958 in an earlier
litigation with one Nansa Gulabsa Jain. The plaintiffs contended that
Nansa Jain had filed a suit for recovery of money against Dagadulal and
for execution of the said decree bearing Regular Darkhast No.03/1991
was filed by Nansa Jain against Dagadulal. Some property was
attached in the said execution. The plaintiffs stated that the defendant
No.1 had filed objection vide M.J.C.No.17/1994 stating that the
property under attachment was purchased by him from his individual
earnings after separating from his father under a partition which was
arrived at in the year 1958.
(6) The defendant No.1 denied the partition of the year
1958. He also denied the document dated 28/12/1974. It is his
contention that the said document was got executed from him by his
father by exercising undue influence and coercion. With respect to the
objection filed in the proceedings initiated by Nansa Jain, defendant
No.1 contends that the said objection was raised in order to protect the
family properties. The defendants thus disputed allotment of the suit
property to the share of plaintiff No.1 and contended that sale deed
executed by plaintiff No.1 in favour of plaintiff No.2 did not confer any
title upon the plaintiff No.2. The defendant No.1 contended that he
was in possession of the suit property as a co-owner. He further
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claimed that if it is held that partition had taken place then it must be
held that he acquired ownership over the suit property by adverse
possession.
(7) The learned trial Court recorded a positive findings with
respect to oral partition of the year 1958. However, the learned trial
Court discarded the document dated 28/12/1974 on the ground that it
is an unregistered document. The learned trial Court recorded that the
defendant No.1 had proved his possession over the suit property for
long and had become owner thereof by way of adverse possession. In
view of such findings the suit came to be dismissed.
(8) Being aggrieved by the said decree, the plaintiffs
preferred R.C.A.No.128/2006. The learned first appellate Court has
allowed the appeal by passing a decree declaring plaintiff No.2 to be
owner of the suit property and directing the defendant No.1 to deliver
possession of the suit property to the plaintiff No.2. The said reversing
decree is the subject matter of challenge in the present second appeal.
(9) The appeal came to be admitted vide order dated
15/12/2017 on the following substantial questions of law :-
i. Whether reversal of the decree of the trial Court dismissing
the suit as barred by limitation is in accordance with law ?
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ii. Whether the appellate Court was legally justified in taking
into consideration the document at Exh. 67 Relinquishment
Deed that was not registered ?
As to Substantial Question of Law No.(ii) :-
ii. Whether the appellate Court was legally justified in
taking into consideration the document at Exh. 67
Relinquishment Deed that was not registered ?
(10) The agreement dated 28/12/1974 is marked as Exh.67.
The defendant No.1 has not disputed his signature on the said
document. The defendant No.1 has stated that the said document was
signed by him under coercion of deceased Dagadulal, father of the
parties. Perusal of the findings of the learned first appellate Court
demonstrates that the defendant No.1 admitted to have purchased the
stamp paper on which the document at Exh.67 is scribed. The learned
first appellate Court also recorded that although the document is
referred as relinquishment deed, in essence it is not a deed of
relinquishment, but a document confirming earlier partition of the year
1958. The learned first appellate Court held that the document was
admissible in evidence and was duly proved. The learned trial Court
has discarded the said document for want of registration. The learned
trial Court has held that the said document is not a memorandum of
partition, but a deed of relinquishment. Both the learned advocates
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supported the findings recorded by the learned Courts in their favour,
whereas the contention of Mr.Saboo, learned advocate for the
appellants is that the learned trial Court rightly found the document at
Exh.67 to be a relinquishment deed, Mr.Bhandarkar, learned advocate
for respondents contends that the document is a mere confirmation of
earlier oral partition.
(11) I have perused the document at Exh.67 with the able
assistance of the learned advocates. The document in fact comprises
of two parts, both of which are separable.
(12) Initially, the defendant No.1 has confirmed the oral
partition effected in the year 1958. He has further confirmed that the
parties were placed in separate possession of their respective shares
pursuant to the said partition. He has declared that he will not raise
any dispute with respect to the said partition of the year 1958.
Thereafter, the defendant No.1 refers to properties allotted to his share
in the partition of the year 1958 which are mentioned in clause (b) of
the said document. He has declared that he does not have any right or
interest over all the properties except the properties enumerated in
clause (b). To this extent the document at Exh.67 is certainly a
declaration confirming the earlier oral partition of the year 1958. The
document does not require registration, so far as the aforesaid aspect
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is concerned. The document is admissible in evidence to this extent
although it is not registered to this extent.
(13) The second part of the document pertains to
relinquishment. The defendant No.1 has relinquished his rights over
the properties enumerated in clause (b) of the agreement in lieu of
residential house at village Sawali, 100 Qtl. Cotton, 40 Qtl. Jowar, 15
gunny bags Toor crop, 12 cattles and bullock cart. This part of the
document is certainly a deed of relinquishment or exchange. The
defendant No.1 has given up his right over properties enumerated in
clause (b) of the agreement, which according to him had fallen to his
share in the partition of the year 1958, in lieu of a house property and
other movables mentioned above. To the extent of the properties
enumerated in clause (b) of Exh. 67, the document at Exh. 67 is in the
nature of a document of demise and would require compulsory
registration under Section 17 of the Registration Act. To this extent,
the document is inadmissible in evidence in view of bar under Section
49 of the Registration Act.
(14) However, the suit properties are not a part of clause (b)
of the document at Exh.67. I had made a query in this regard to both
the learned advocates. Mr.Bhandarkar, the learned advocate for the
respondent asserted that the suit properties are not properties
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enumerated in clause (b) of the document at Exh.67. Mr. Saboo, the
learned advocate for the appellants did not dispute the statement.
(15) In view of the aforesaid, the document at Exh.67 can be
read in evidence in the present suit, since the suit property is not a
subject matter of relinquishment or exchange by the defendant No.1.
The properties enumerated in clause (b) of the said document are not
subject matter of the suit. The document, therefore, can be read in
evidence as admission of the oral partition effected in the year 1958 by
the defendant No.1.
As to Substantial Question of Law No.(i) :-
i. Whether reversal of the decree of the trial Court dismissing
the suit as barred by limitation is in accordance with law ?
(16) The learned trial Court has accepted the case of adverse
possession set up by the defendant No.1. The learned first appellate
Court has however, reversed the said findings. It must be borne in
mind that the suit property was property of the family, which according
to the plaintiffs had come to the share of plaintiff No.1 in the partition
of the year 1958 and the plaintiff No.1 has sold the suit property to the
plaintiff No.2. The plaintiff No.2 claims ownership over the suit
property on the basis of the said sale deed. As against this, the
defendant No.1 has denied the oral partition of the year 1958. The
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defendant No.1, also contends that the property is held by family
members as co-owners. Since defendant No.1 has denied the oral
partition of the year 1958 and claimed to be in cultivating possession of
the suit property, the only inference that can be drawn is that, even
according to case set up by the defendant No.1, he was in possession
of the suit property as a co-owner and not as exclusive or absolute
owner.
(17) A perusal of the written statement filed by defendant
No.1 would demonstrate that the plea of adverse possession has been
raised in the alternative. In order to establish a case of adverse
possession, the person claiming adverse possession must admit the
title of the true owner. The defendant No.1 is disputing exclusive title
of plaintiff No.1 and thereafter, the plaintiff No.2. Perusal of written
statement will also demonstrate that the defendant No.1 has not
asserted that the plaintiffs were aware that he was claiming to be
exclusive owner of the suit property and therefore, his possession was
adverse to the interest of the plaintiffs. It will be appropriate to refer
the written statement of the defendant No.1 with respect to adverse
possession; relevant portion of the written statement is extracted
herein below :-
"Para No. 16 : That, there is no partition in between the family of
the Dagadulal regarding estate and therefore the possession of
Laxminarayan could be said that of co-owner though he was
individually cultivating the said land. Thus, it is crystal clear that
there is no partition in the family of the Dagadulal Somani and his
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all legal heirs.
......... It is submitted that in the alternative if the Hon'ble Court
holds that the estate of the joint family partition and if the suit field
came to the share of Deepchand Somani as alleged then it is
submitted that in that circumstance the possession of the deft no.1
shall be adverse to the Deepchand Somani etc. As this deft is in
exclusive and absolute possession of the said land against the
whole world including the plaintiffs. And in such circumstance
being deft no.1 is in exclusive possession of the suit fields since
1961 and therefore the suit is time barred and hence it is not
tenable."
(18) Perusal of the written statement of the defendant No.1
would demonstrate that he has failed to plead that his possession was
hostile to the knowledge of plaintiffs. In that view of the matter, the
possession of the defendant No.1 cannot be termed as adverse. This
aspect is properly taken into consideration by the learned first appellate
Court. The learned trial Court has erred in law in construing long-
standing possession as hostile possession, thereby holding that
defendant No.1 had perfected his title over the suit property by way of
adverse possession.
(19) In view of the reasons recorded above, both the
substantial questions of law are answered against the appellants and in
favour of the respondents.
(20) Accordingly, the second appeal is dismissed. Costs shall
follow the cause.
[ ROHIT W. JOSHI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 11 OF 11
Designation: PA To Honourable Judge
Date: 15/04/2026 11:42:41
