Dismissed

Kashinath Lalaji Bhausar and Ors. v. Walmik Ragho Mahale and Ors.

Bombay HC24 Jul 2006SA/546/1984

Case brief

AI extract

What is this about?

The Second Appeal filed by unsuccessful plaintiffs challenging a suit for declaration regarding a sale deed was dismissed. The High Court held that concurrent findings of fact by lower courts regarding the denial of a reconveyance document were not erroneous and refused interference.

What did the court decide?

The Second Appeal was dismissed with no order as to costs.

Kashinath Lalaji Bhausar and Ors. Vs Walmik Ragho Mahale… — Property and Title | Bombay HC (2006)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 546 OF 1984

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Kashinath Lalaji Bhavsar (since deceased through his LRs.) 1a) Sudhakar Kashinath Bhavsar. 1b) Ramesh Kashinath Bhavsar. 1c) Amarnath Kashinath Bhavasar 2. Amarnath Kashinath Bhavasar. 3. Sudhakar Kashinath Bhavsar. 4. Ramesh Kashinath Bhavsar. ... Appellants. Versus. 1. Walmik Ragho Mahale. 2. Kashinath Ragho Mahale. 3. Sitabai Ragho Mahale, (since deceased through her LRs.) 3a) WalmikRagho Mahale. 3b) KashinathRagho Mahale. both residents of Nandgaon, Dist.Nashik. 3c) Smt.Chhabutai Haribhau Gadakh, R/o. Mathur Padi, Taluka: Malegaon,Dist. Nashi. ... Respondents.

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Ms.A.R.S.Baxi for the Appellants. Shri M.M.Sathaye for the Respondents.

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CORAM : ABHAY S.OKA, J.

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DATED : 24th July, 2006.

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ORAL JUDGMENT.

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1.	He	ard the lear	ned Advocat	es appearing for the
parties.	On	28th	Novembe	r 1986 the	Second	Appeal	was
admitted	by	passing	the	following order:		"Admit	as
regards	grounds	Nos.	6, 7	and 8".	The	order	indicates
that	the S	econd	Appeal	was admitted	on	the	questions

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: 2 :

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arising out of Grounds Nos.6, 7 and 8 of the Memorandum

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of Appeal. The said Grounds Nos.6, 7 and 8 read thus:

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The	Court below	has	failed to	consider
that	the Respondents	ha	ve not denied	the
contents	of Ex	h.27	and, therefore,	they
were	admitted.	It	is further	submitted
that	when the	executi	on of the	document
was	held to be	prove	d, it ought to	have
been	held that	the	Appellants have	proved

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that the said document and the Courts

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below ought to have relied upon.

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The	Courts below	have failed	to	consider
that	the Responde	nts have not	denied	the
material	allegations	and	the	factual
statements	made	in respect of	the	sale
deed	and also	the agreement	at	Exh.27.
The	Court below	has erred	in holding	that

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the allegations were denied by implication

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by the Respondents.

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The	Court	belo	w has	failed		to c	onsider
that	the Resp	onden	ts tried		to	contend	that
Exh.27	was	not	legal	and	not	binding	upon
them.	It	was	an error	to	hold	that	by
this	contention,		the		Respon	dents	have

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: 3 :

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denied the execution of the said

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documents.

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The Appellants are the unsuccessful Plaintiffs.

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The Appellants filed a suit for declaration that	the
registered conveyance dated 14th March 1958 executed	by
the Appellants in favour of the father of	the
Respondents Nos.1 and 2 does not reflect the real	nature
of transaction between the parties and the same was	not
to be acted upon between the parties. According to	the
case of the Appellants, in the year 1958, the	1st
Appellant was in financial difficulty and therefore,	he
took a sum of Rs.4999/- from the father of	the
Respondents Nos.1 and 2 and handed over possession	of
the suit lands to the father of Respondents Nos.1 and	2.
According to the case of the Plaintiffs, the sale	deed
was nominally executed on 14th March 1958 in favour	of
the Respondents Nos.1 and 2. According to the case	of
the Appellants on 15th March 1958, the father of	the
Respondents Nos.1 and 2 executed a writing on a	plain
sheet of paper and thereby he agreed to return the	suit
land to the Appellants after enjoying the same for	7
years and to share fruits bearing trees on the	suit
land. According to the case of the Appellants,	acting
upon the said writing the father of the Resp	ondents
Nos.1 and 2 gave a share to the Appellants. H	owever,
from 1965 onwards he stopped giving the share. The	suit

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: 4 :

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is based on a demand made by notice sent by the Advocate

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for the Appellants to the deceased father of the

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Respondents calling upon him to hand over possession.

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3.			The suit	was contes	ted by th	e Respo	ndents Nos.1
and	3	by	filing	the	written	sta	tement.	Accordi	ng	to	the
case	of	the	Res	pondents	No	s.1	and 2,	the	wr	iting/	receipt
dated		15th	March	1958	was	not	produced	on re	cord	by	the
Appella	nts.		Accord	ing	to	the	Respondent	Nos.1	and		3,
such		receipt	was	no	t	exe	cuted.	The	trial		Court

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dismissed the suit and the dismissal of the suit has

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been confirmed by the Appellate Court.

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4.	The learned Advocate for the Appe	llants
submitted	that the execution	of	the	writing/r	eceipt
dated 1	5th March 1958 was not	specifically	de	nied by	the
Respondents	Nos.1 and 3 in their	written	state	ment.	She
submitted	that if execution of the	said	docu	ment is	not
disputed	by the Respondents Nos.	1 and	3,	the	said
Respondents	were under an oblig	ation to		execute	the
conveyance	in favour of the Appella	nts.	It	is sub	mitted
that in	all the three notices which	were	issu	ed prior	to
the	filing of the suit, a specifi	c stand	was	taken	by
the	Appellants that the sale deed	executed	by	them	was
not	to be acted upon and that	there	is	no inconsi	stency
in	the stand taken in the legal	notices	iss	ued prior	to
the	institution of the suit and	the ave	rments	made	in

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: 5 :

¶34

the plaint. The learned Advocate appearing for the Respondents supported the impugned Judgments and decrees.

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5.	I have considered the submissions. It must be
noted	here that in the plaint there is no prayer	for
execution	of the document of reconveyance by	the
Respondents.	The substantive relief sought is for	a
declaration	that the sale deed dated 14th March 1958	was
not to	be acted upon by the parties. There is	a
consequential	prayer for possession. The	first
Appellate	Court has referred to the first legal	notice
issued	by the Appellants through their Advocate on	4th
September	1966 which is at Exh.42. In the said	notice
it is	contended that the sale deed dated 14th March	1958
is no	t legal and valid as it is not executed for	legal
necessity.	There is not even a reference in the	said
notice to	the writing/receipt dated 15th March 1958.	In
the s	aid notice demand for possession was made on	the

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ground that the Sale Deed dated 14th March, 1958 was

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invalid.

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6.		The	Apex Court	in a decision in the case of
K.C.Kapo	or	v/s.	Sm	t.Radhika Devi (dead)	by LRs.		and
others	[(1981)	4	S.C.C.	page 487] held	that	even	though
written	state	ment	may	be inartistically	drafted	the	same
cannot	be	constr	ued in	a hyper- technical	manner	and	the

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: 6 :

¶40

Court	has t	see	wheth	er	the allegati	ons made	therein
gave	sufficient	notice	to	the	Plaintiffs	of what	case
they	have to	meet.	In	the	present	case a	specific
assertion	has	been	made	in	the writt	en statement	that
the	receipt/document	dated	1	5th	March	1958 is	not

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produced by the Plaintiff and such a document is not

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executed by the Respondents.

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7.		The fir	st Appella	te Court held tha	t the conte	nts
of	the	receipt/	document	dated	15th	March,	1958 wer	e not
proved.		The	said	finding is	based	on	consideration	of
oral	and	docu	mentary	evidence	on	record.	The	Appellate
Court	has	also	cons	idered the	fact	that	in notice	dated

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4th September, 1966 issued by the Appellants the said

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document is not even referred to.

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There is no reason to interfere with the concurrent findings of facts recorded by the Courts

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below. The Second Appeal is dismissed with no order as

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to costs.

¶49

Judge.

Kashinath Lalaji Bhausar and Ors. v. Walmik Ragho Mahale and Ors.

Case brief

What is this about?

What did the court decide?

Kashinath Lalaji Bhausar and Ors. v. Walmik Ragho Mahale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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