Second appeal challenging dismissal of a property suit. The High Court rejected the claim of fraud regarding a mutation entry that remained unobserved and unchallenged by the parties for over three years, finding no perversity in the lower courts' conclusion.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SECOND APPEAL NO.1406 OF 2005
Sambha Dhondi Jorwar (Patil)
And Anr. .. Appellants.
Versus
Narayan Dhondi Jorwar & Ors. .. Respondents.
Mr.Surel S.Shah for appellants.
Mr.K.B.Sonwalkar for respondent Nos.1 and 2.
CORAM : S.C.DHARMADHIKARI, J.
DATE : 3rd September 2007.
P.C.
. The appellants, original plaintiffs are
in Second Appeal, to challenge the Judgement and
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order of the lower appellate court confirming
that of the trial court, dismissing their suit.
2. The Substantial question of law,
according to Mr.Shah would be that the
predecessor in title of the respondents one
Dhondi was of advanced age. He was over 90 years
when the suit land Gat No.232 was allegedly
transferred in the name of respondent No.2. He
submits that the deposition of the appellants -
plaintiffs would show that the deceased Dhondi
was not keeping good health and in fact never
understood implications of his acts and deeds.
Fathers of appellants and the original defendants
were cultivating the suit land jointly. There is
material to show that the land has been acquired
out of joint family income and mere mutation
entry would not evidence transfer of the lands in
favour of respondent No.2 by the deceased. In
such circumstances and when the so called entries
have not been proved, the transfer would not be
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binding upon the appellants. Consequently, the
courts were in error in dismissing the suit.
3. The courts below have concurred on the
issue of the appellants proving that the original
defendants have managed to get their names
entered in the records by practicing fraud. Such
fraud is not proved, is the conclusion.
According to respondents - original defendants,
there is ample material to show that the subject
property was the self-acquired property of
deceased and, therefore, no grievance could be
made by the appellants, much less, after more
than three years of the mutation entry.
4. It has come on record that the subject
land was acquired by the deceased by tendering
the consideration/price and obtaining necessary
certificate under section 32M of the Bombay
Tenancy and Agricultural Lands Act, 1948. It is
true that Gat Nos.226 and 244 were partitioned
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amongst all of them but the suit land was not
partitioned. It is alleged that father died in
the year 1967 and the original defendant No.1
with intent to grab land, illegally transferred
the said land to defendant No.2 by practicing
fraud on the father. At the time of death, the
deceased was about 95 years of age. The
allegation is that prior to his death, he was
unconscious and was not aware of what was going
around. However, courts below have observed that
mutation entry No.183 was effected on 8th
February 1985. The other mutation entries were
also produced. The courts below have observed
very clearly that apart from the statements which
have been made orally, there are no documents to
prove the alleged fraud. On the other hand, as
has been rightly observed by the lower appellate
court that mutation entry No.183 was sanctioned
in the name of respondent No.2. It is an
admitted position that no objection was taken
regarding this entry from 1985 to 1988.
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Although, it can be assumed that Appellant No.1
did not have knowledge of the said entry till
1988, however, his father also has not taken any
objection to the transfer during his life time.
5. There is no objection raised inasmuch as
Dhondi expired on 23rd May 1983 and suit came to
be filed in the year 1988. The version that
fraud was practised, according to lower appellate
court gets falsified by plaintiffs own witness.
He deposed that two years prior to the death of
Dhondi, he gave the suit land to original
defendant No.2. Dhondi during his life-time and
the appellants, thereafter, did not object to the
said transfer. Thus, there is substance in the
contention that the transfer was unobjected
through out. Further, against this mutation
entry, no proceedings were initiated. Either the
deceased Dhondi or his sons would have taken
appropriate steps/proceedings challenging this
entry. Once the lower appellate court observed
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that mutation entry goes unchallenged asno
proceedings are initiated, that the land is not
joint family property, then, based upon the above
circumstances which are culled out from the oral
and documentary evidence placed on record, the
suit is rightly dismissed.
6. In my view, there is no perversity
inasmuch as the findings are consistent with the
oral and documentary evidence. This is not a
case where re-appreciation and re-appraisal of
the materials would be permissible by this Court.
Consequently, it is not possible to uphold the
Argument of Mr.Shah that the mutation entry alone
would not evidence transfer and that inaction on
the part of parties to challenge the same should
not deprive them of their share in the property.
7. In the light of the concurrent findings,
I see no merit in the appeal and is accordingly
dismissed.
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(S.C.DHARMADHIKARI, J)
2 issues framed by the court
Whether the unchallenged mutation entry in favor of the respondent proves a valid transfer despite an allegation of fraud by the original defendant.
Whether the delay of more than three years prevents the appellants from challenging the mutation entry as fraudulent.
2 provisions across 2 enactments
Sambha Dhondi Jorwar (Patil) & Anr.
Narayan Dhondi Jorwar & Ors.
S.C.DHARMADHIKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court