Hausabai Limbaji Padwalkar. Vs Chandar Babaji Pandhare and Others.

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 IN THE HIGH COURT OF JUDICATURE AT
BOMBAY

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 BENCH AT AURANGABAD

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SECOND APPEAL NO.398 OF 1990

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 Date of decision: 7/7/2009

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For approval and signature:

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HON'BLE MR. JUSTICE K.U.CHANDIWAL

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`1.Whether the Reporters of Local Papers` `may be allowed to see the Judgment ?`	`Yes/`
`2. To be referred to the Reporter or not ?`	`No`
`3. Whether Their Lordships wish to see` `the fair copy of the Judgment ?`	`/No`
`4. Whether this case involves a substantial` `question of law as to the interpretation` `of the Constitution of India, 1950, or` `any order made thereunder ?`	`/No`
`5. Whether it is to be circulated to the` `Civil Judges ?`	`/No`
`6. Whether the case involves an important` `question of law and whether a copy of` `the Order should be sent to Bombay,` `Goa and Nagpur Office ?`	`/No`

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(A.G.Paralikar)
Private Secretary
office/sa398-90

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.398 of 1990

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Smt. Hausabai w/o Limbaji Padwalkar,
aged 62 years, occupation household,
r/o Ter, Taluka and Dist. Osmanabad.

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...APPELLANT

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ORIGINAL PLAINTIFF

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VERSUS

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1. Chander Babaji Pandhare, Aged 46 years, Occ. Agri., r/o Ter, Tal. & Dist. Osmanabad.

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2. Atmaram Gundiba Chougule, aged 55 years, occ. And r/o as above.

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3. Sarubai w/o Kedari Kachare, aged 65 years, occ. Household, r/o as above.

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...RESPONDENTS
 (Ori.Defendants)

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Mr.Sandeep Gorde Patil, Adv., for
appellant.
Mr. P.B.Rakhunde, Adv., h/f Mr.
S.B.Bhapkar, Adv., for respondent nos. 1
to 3.

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...

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CORAM: K.U.CHANDIWAL,J.
DATE: 7/7/2009

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...

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ORAL JUDGMENT :

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1. Aggrieved plaintiff, owing to the orders

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in Regular Civil Appeal No.149/1983, allowing the
appeal of the original defendant and reversing
the judgment and decree dt.30th July, 1983, in RCS
No.126/1978, is in Second Appeal.

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2.The appeal was admitted on 21st Jan.,
1991, by formulating following grounds as
substantial questions of law between the parties:

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“D)That the suit was in respect of
the house in question bearing No.1-9-19/1
admeasuring 51 hands x 51 hands within
the boundaries specified in the plaint.
The Respondents admitted the ownership of
Appellant and possession to the said
house bearing No.1-9-19/1. The

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Respondents claimed that an area of
13-1/2 x 82-1/2 feet shown in Red colour
in the sketch annexed with the plaint was
not of the Appellant. The respondents
admitted the ownership of the Appellant
and possession in respect of the rest of
the area. It was therefore, apparently
illegally to dismiss the entire suit.
This is a substantial question of law.

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(E)That the substantial question of
law is as to whether the dismissal of the
suit inspite of admission of the
Respondents is legal.

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(G)That the substantial question of
law in the present case is as to whether
the sale deed executed on 16.1.1950 in
favour of Limbaji, the husband of the
Appellant by Dagdu s/o Shivling Shete and
Krishnabaiw/o

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Shivling Shete could be used for
collateral purposes i.e. For determining
the nature of possession of purchaser

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Limbaji and thereafter the Appellant-
plaintiff.

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(I)That the trial Court had
specifically held that the sale deed
dated 7/1/1972 which is tried to be got
corrected on 26.6.72, executed by the
defendant No.3 in favour of defendant No.
1 and the sale deed dated 2.10.1973
executed by defendant no.1 in favour of
defendant no.2 did not transfer any
right, title or interest in favour of the
defendant No.1 and/or defendant no.2.
Similar finding was also recorded in
respect of the collusive decree secured
in R.C.S. No.50 of 1977 in favour of the
defendant no.2. The trial Court
therefore, correctly held that neither
the sale deed not the decree could affect
the right, title and interest or the
possession of the Appellant. The
learned Addl. District Judge has
committed a grave error in ignoring the
above finding and the fact that the sale
deeds referred to above and the decree,
in fact, was a colourable device and that
they were never acted upon. In fact they
were procured to create false evidence
and as such could not affect the right,
title or interest of the Appellant.

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(M)That the Appellant and her
husband were admittedly in possession of
the disputed property since 1950 by
virtue of the sale deed, though
unregistered. Their possession admittedly
was in their own right and title of the
Appellant itself perfected at the time
when the suit was filed by virtue of
their open, continuous, uninterrupted
possession. At the time of evidence,
the sale deed dated 16.1.1950 exhibited
at Exh.93 was more than (30) years old.
It was, therefore, clearly wrong to
refuse decree in favour of the Appellant

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as sought for.

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N)That the Appellant had affirmed
that she was in possession. Her
possession was confirmed by the report of
the Commissioner. The trial Court by
its order dated 4th January, 1979, upheld
the possession of the Appellant. The
finding of possession recorded by the
trial Court was also upheld in Misc.
Civil Appeal No.7 of 1979 by judgment and
order dated 21st of June, 1980. The
appellant’s possession is also recorded
in the Survey record and the Sanad. The
Gram Panchayat record including the
Property Tax Register as well as the
payment of the taxes also established the
Appellant’s possession. One of the
vendors of the Appellant by name Dagdu,
produced as PW 2 and others namely PW 3
Vishwanath as well as P.W.4 Nazir Ahmed
and P.W.5 Durugkar, Advocate have stated
on oath that the Appellant was in
exclusive possession. Even Respondent
No.3 Sarubai and the Respondent No.2
Atmaram have also admitted the possession
of the Appellant over the property in
question. In this view of the matter,
it was absolutely wrong to disturb the
finding of fact recorded by the trial
court. The judgment and decree under
appeal passed by the learned Addl.
District Judge thus being perverse
requires to be set aside.

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(O)That the substantial question of
law is as to whether the first appellate
Court in the facts and circumstances of
the present case, could disturb the
finding of fact recorded by the trial
courtinspiteofadmissionsby
Respondents.

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(Q)That the learned Addl. District
Judge was wrong in holding that the

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Appellant had not proved adverse
possession within the meaning of Article
65 read with Section 27 of the Limitation
Act. “

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3.The controversy between the parties
revolves to the property which has the Gram
Panchay at Nos.1-9-19/1 and also 1-9-19/2. The
plaintiff/appellant stakes claim based on an
unregistered sale deed purportedly executed by
erstwhile vendors Dagdu and his mother
Krishnabai. It was expected of the plaintiff to
have given detailed description of the property
for which declaration was sought. Unfortunately,
no such details are referred in the plaint. Based
on such vague pleadings, it was practically
impossible to entertain the suit, to exercise
discretion in favour of the plaintiff.

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4.The second impediment which the
plaintiff faced was the unregistered sale deed
executed by Krishnabai and her son Dagdu tendered
at Exh.93. The learned Judge of the Court of
first instance recorded presumptive value to the
sale deed oblivious to the fact that it was not
completing the required 30 years period mandated
under Section 90 of the Evidence Act.
Consequently, it was expected of the plaintiff to
establish her title to the property. As stated
above, the plaintiff could not establish the
title. The unregistered sale deed executed by

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Dagadu and his mother, would not divest any title
in favour of the plaintiff and further get a
decree of ownership of title from the Court. If
Dagadu or his mother had the title, nobody
prevented them, as Dagadu is examined, to get
such Kabala ( title document) placed on record.
However, no such title document of Krishnabai,
mother of Dagadu, is tendered in the evidence.
Dagadu accepts, the property was not of
Krishnabai but it has come from mother. No old
receipts are produced by Dagadu to show that
Krishnabai had perfected title to divest in
favour of plaintiffs husband.

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5.It is in the evidence that the Gram
Panchayat in village Ter had the details of the
property recorded somewhere in the year 1952. If
this is so, naturally, the property, to which the
plaintiff is staking claim, should have its
reference and reverence also to the measurement,
befitting to the unregistered sale deed.
Startling position in the matter is, the
plaintiff’s husband’s name appeared in the
property having Gram Panchayat No.1-9-19/1 with
assessment of Rs.925/- while the house Gram
Panchayat No.1-9-19/2 stands in the name of
Sarubai w/o Kedari Kachare, defendant no.3 way
back in the year 1956 -1957. There is no
explanation from the plaintiff as to how she
could have staked right in the property house no.

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1-9-19/2 which, way back in the year 1956, was
recorded in the name of defendant no.3. It is
defendant no.3, who has subsequently divested
title in favour of defendant no.1 by registered
sale deed and also subsequent correction deed.

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6.Thecourtfoundevidenceof

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Subhashchandra, DW No.1, Sarubai, DW 2, Atmaram,
DW 3, Prabhakar, DW 4 and tax receipts from the
year 1967 to 1978-79 were of house Gram Panchayat
No.1/9/19/2 at Exhs. 41 and 42. These receipts,
undoubtedly, were not in the name of plaintiff.
Whatever record the plaintiff has produced like
survey settlement record or tax payment receipts
at Exh.129 to 131 or the Sanad, it remotely
connects to the Gram Panchayat house No.1-9-19/2.
The record of the plaintiff goes to show that it
relates to Gram Panchayat House No.1-9-19/1. In
this situation of the matter, it is difficult to
digest that the plaintiff has any title either by
virtue of unregistered sale deed (Exh.93) or by
virtue of so called adverse possession as such
theory has been propounded during the course of
submissions.

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7.The evidence of Sarubai or Dagadu, could
not be stated to have provided any acceleration
to establish contentions propounded by the
plaintiff. There is no fatal admission from
Sarubai or from Subhashchandra to accept that

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they have admitted plaintiffs possession or
ownership to the disputed property. It is
unfortunate that the Sanad produced on record at
Exh.122 relating to CTS No.1270, Sheet No.2 in
the name of plaintiff Hausabai is short of
dimensions or area. Only scale is given with
the scale 1:500. The next document is extract
produced by the D.I.L.R., Osmanabad, showing land
CTS No.1270 as barren and property 1234 as
constructed. It is not clarified by the
plaintiff that 1234 is from property to which she
is staking claim or that the said property is put
underobstructionbythedefendants.No
interference in the finding recorded by the
learned first appellate Court is warranted. The
plaintiff could not have sought declaration and
injunction in respect of the house 1-9-19/2 as
she has no locus standi to stake claim by way of
declaration. It follows that staking declaration
of cancellation of the sale deed in respect of
the said house or getting a declaration
concerning RCS No.50/1977 or proceedings in RD
No.22/1978 will not be available to the
plaintiff. The plaintiff has no concern with
the house No.1-9-19/2 which unequivocally was in
the name of defendant no.3 flowing since long
i.e. At least from 1956 onwards. In the

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situation, finding recorded by the first
appellate Court, setting aside the judgment and
decree cannot be questioned on its legality,

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propriety and it cannot be said that the first
appellate Court was wrong in appreciation of the
evidence. The grounds formulated, referred
hereinabove, will have to be answered that the
appellant has failed to prove the same. The
grounds are accordingly answered. Second Appeal
sans merit, and dismissed. No costs. Civil
Applications disposed of.

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( K.U.CHANDIWAL)

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JUDGE

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agp/sa398-90

Hausabai Limbaji Padwalkar. v. Chandar Babaji Pandhare and Others.

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Hausabai Limbaji Padwalkar. v. Chandar Babaji Pandhare and Others.

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