Dismissed

Madan Gopal Yadhav v. Bhojappa Smbhu Kapse and Other

Bombay HC20 Jul 2010SA/71/1989

Case brief

AI extract

What is this about?

This second appeal challenges a judgment holding suit property ancestral. The Court upheld the District Court's finding that pleadings binding parties for 33 years established the property as ancestral, resulting in a 1/16th share claim for the daughter instead of 1/4th.

What did the court decide?

The second appeal fails and stands dismissed. Each party to bear their own costs. TotalRs.5000/= was paid as consideration. Therein it is also stated that at the time of agreement of

Madan Gopal Yadhav Vs Bhojappa Smbhu Kapse and Other — Partition | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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SECOND APPEAL NO.71 OF 1989

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Madan Gopal Yadhav
age major,occupation agri.
resident of Khotachi Wadi
under village Mangrul,
Taluka Tuljapur.

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Appellant/
ori.plaintiff
No.2.

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versus

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1. Bhojappa Sambhu Kapse, age major, occup.agri. resident of Mangrul, Taluka Tuljapur.(since deceased through his legal heirs as under:-

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Respondent/
ori.deft.No.1

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1-A) Satappa Bhojappa Kapse age 50 years,occupation agri.

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1-B) Kashinath Bhojappa Kapse age 47 years,occup.Agril.

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1-C) Mahadeo Bhojappa Kapse, age 43 years,occup,agril.

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1-D) Indubai Sakharam Mahamane age 40 years, occup.agril.

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All residents of Mangrul,
Tq.Tuljapur,Dist.Osmanabad.

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2. Sow, Baidabai w/o Shivaji Kadam, age major, occup. household r/of Pimpla, Tq. Tuljapur,

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`3.`	2 `The Collector,` `Osmanabad.`
`4.`	`Kishan Keshav Shinde,` `age major, occupation` `agriculture, resident` `of Mangrul,Tq.Tuljapur,`
`5.`	`Nagnath Keshav Shinde,` `age major, occupation` `agril. r/of Mangrul,` `Taluka L Tuljapur,`
`6.`	`Laxman Keshav Shinde,` `age 40 years, occup.` `agriculture, resident`	`Respondents/` `No.2 is orig.` `pltff No.2 and`
`----`	`of Mangrul,Tq.Tuljapur.` `---------------------------`	`Nos.3 to 6 are` `ori.deft.Nos.3` `to 6.` `-----------------------`
`Shri` `Gods`	`A.S. Gaikwad, Advocate,` `ay, Advocate for the`	`holding for Shri S.M.` `appellant. Shri M.P.`
`Trip` `None` `----`	`athi, Advocate for Respon` `for Respondent Nos. 2,4,5` `---------------------------`	`dent Nos. 1-A to 1-D.` `and 6.` `-----------------------`

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Coram : P.R.Borkar, J.
Date : July 20, 2010.

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ORAL JUDGMENT

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01.This second appeal is filed by original
plaintiff No.2 Madan Yadav being aggrieved by the

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judgment and decree passed by the learned District
Judge, Osmanabad, in Regular Civil Appeal No.154

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of 1982 decided on 12.7.1988 thereby allowing the

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said appeal and modifying the decree that was
passed by the learned Civil Judge, Senior
Division, Osmanabad, in Regular Civil Suit No. 93
of 1977 decided on 26.11.1981.

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02.Brief facts giving rise to this second
appeal may be stated as under:

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Keshav Shinde was the original ancestor of
plaintiff No.1 Baidabai and Defendant Nos. 3 to
5. Survey No. 14 admeasuring 28 acres 35 gunthas
situated at village Mangrul, Taluka Tuljapur,
District Osmanabad was purchased by Keshav Shinde
by sale deed dated 13.10.1955 for Rs.5,000/= from
one Bapurao Kashirao Deshmukh. The copy of Sale

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deed is at Exh.57. Keshav died on 2.6.1966
leaving behind his daughter (plaintiff No.1
Baidabai) and sons (defendants No.3 to 5).
Defendant No.1 Bhojappa purchased the suit

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property from Defendant No. 3 to 5 by sale deed
dated 30.3.1973. Original plaintiff No.1 Baidabai

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alone filed suit for declaration that the sale
deed executed by her brothers defendant Nos. 3 to

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5 in favour of appellant-original defendant No.1

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is not binding on her 1/4th share and also for
partition and separate possession to the extent of
her 1/4th share.

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03.It is not disputed that plaintiff no.1
Baidabai had entered into agreement with
appellant-plaintiff No. 2 and subsequent thereto
the sale deed was executed. Originally, appellant

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Madan Yadav was added as defendant No.6 in the

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suit and he had filed written statement (Exh.24)
and he claimed that plaintiff Baidabai was having

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1/4th share in the suit property and she had sold
her said share in the suit property. Lateron
appellant Madan Yadav had filed R.C.S.No.129 of
1977 for execution of the sale deed which was
partly decreed, directing refund of earnest money
to him. Being aggrieved thereby, he filed Regular
Civil Appeal No.46 of 1978 and pursuant to the

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decree passed by the District Court in the said
appeal, the sale deed was executed in his favour.

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He prayed that in present suit, he should have
been added as plaintiff in stead of defendant. It

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appears that during pendency of the suit,
appellant-original deft.No.6 was added as
plaintiff No.2 and the suit came to be ultimately
decided on 26.11.1981.

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04.The trial court held that plaintiff No.1
Baidabai had 1/4th share and as such she was
entitled to partition and separate possession of
her 1/4th share. The trial court also declared
that the sale deed dated 30.3.1973 at Exh.51 was
not binding on plaintiff No.1 Baidabai to the
extent of her share.

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05.As against the said judgment and decree
of the trial court, Defendant No.1 Bhojappa filed
Regular Civil Appeal No.154 of 1982. It was his
contention that as per plaint para 2, plaintiffs
have made out with a case that the suit property
was ancestral property of Keshav Shinde and in the
circumstances, evidence led before the trial court
that the suit property was self acquired property
of Keshav Shinde could not be considered. The
appellate Court came to the conclusion that

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plaintiff No.1 Baidabai had 1/16th share in the
suit property and it declared that the sale deed
executed by original defendant Nos.3 to 5 in
favour of defendant No.1 was not binding on
plaintiff No.1 Baidabai to the extent of her
1/16th share and the appellate court allowed the
suit for partition and separate possession,
accordingly.

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06.Being aggrieved by the judgment and order
of the District Court, original plaintiff No.2
Madan Yadav has filed this second appeal. The
appeal was admitted by this court vide order dated
12.6.1989 without framing any substantial question
of law. The only substantial question of law that
could arise in this second appeal in the absence
of any cross objection is;

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"Whether the District Judge committed
error in holding that the suit property
was ancestral property of Keshav Shinde
and not his self acquired property and
consequently in further holding that
plaintiff No.1 Baidabai had 1/16th share

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and not 1/4th share in the suit
property ?"

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07.Heard Shri A.S.Gaikwad, learned Advocate
for the appellant and Shri M.P.Tripathi, learned
Advocate for Respondent Nos.1-A to 1-D.

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08.AdvocateShriGaikwadvehemently

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submitted that there is overwhelming evidence on
record indicating that the suit property was the

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self acquired property of Keshav Shinde. For the
purpose, he drew my attention to various pieces of
evidence. He relied upon the sale deed Exhibit 57
obtained by Keshav Shinde from one Bapurao
Deshmukh on 13.10.1955. It shows that an amount of
Rs.5000/= was paid as consideration. Therein, it
is also stated that at the time of agreement of

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sale, the property was put into possession of
Keshav Shinde and Rs.1000/= were paid as earnest

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money.At the time of execution of sale deed,
remaining amount of Rs.4,000/= was paid. Learned
Advocate Shri Gaikwad also relied upon Pahani

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patrak (Exh.56) for the period 1955-56 to 1959-60.
These pahani patraks show the name of Keshav Rama
Shinde as actual cultivator and the name of
Bapurao was shown as owner. One Sopan Sidram was
shown as tenant in column No.13, but in said
column, it is also stated that Sopan Sidram had
given up his tenancy rights. The sale deed shows
that the purchaser Keshav was put in possession of
the suit property at the time agreement for sale
executed prior to sale deed dated 13.10.1955.
These two documents do not lead us to a
conclusion as to whether it is self-acquired
property of Keshav or it was joint family
property. Nothing is stated regarding source of
purchase money paid by Keshav Shinde. Be that as
it may.

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09.One thing is very clear that the suit

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property was not inherited by Keshav from his
forefathers. Source of money is not clear. The
second piece of evidence on which Advocate Shri
Gaikwad for appellant wants to rely is the
statement of the appellant on oath at Exhibit 55.

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In his examination-in-chief, he has deposed that

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the suit land was self acquired property of Keshav
Shinde. Keshav had no land or house before
purchasing suit land. Prior to purchase of suit
property, Keshav was working as a labourer.
However, sale deed at Exh.57 shows that occupation
of Keshav was "agriculture" and not "labourer."
Moreover, appellant-plaintiff No. 2 was interested
in stating that it was self acquiring property of
Keshav Shinde. There is evidence of two more
witnesses on which appellant's counsel wants to
rely upon. The first is admission by Bhojappa
(present respondent No.1-original deft.No.1)
examined at Exh.45. In cross examination para 7,
he has stated that Keshav had no ancestral land.

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Then he denied that Keshav had no ancestral land
before purchasing the suit land and then he also
said that he could not tell the survey number or
area of the land. It may be noted that Bhojappa is

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the purchaser of property from the sons of Keshav.
There is evidence of Dhainakumar Mehta examined as
DW-2 at Exh.50. This witness in his cross
examination stated that he was knowing Keshav and

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that Keshav had purchased property from one
Deshmukh. He further stated that Keshav was
cultivating land and also working as labourer.
So, it is argued on behalf of respondent No.1 that
Keshav, who was labourer, could not have raised
money for purchase of the suit land from mere
labour work.

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10.Shri M.P.Tripathi, learned counsel for

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Respondent Nos.1-A to 1-D submitted that at the
time of purchase of the land by Keshav his sons
were major and, therefore, there is possibility of
joint acquisition.

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11.The learned District Judge in his

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judgment reproduced paragraph 2 of the plaint and
pointed out that original plaintiff No.1 Baidabai
approached the court with a clear case that the
suit property was the ancestral property of Keshav

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and that after his death, she and defendant Nos.3
to 5 became owners of the property and as eldest
son, name of Defendant No.3 Kishan was entered in

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the revenue record in respect of the suit

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property. Therefore, the learned District Judge
has taken a view that the parties cannot be
allowed to lead evidence contrary to their
pleadings. It is specifically stated in the
plaint that it was ancestral property of Keshav
Shinde.

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12.Shri M.P.Tripathi, learned counsel for
Respondent Nos.1-A to 1-D drew my attention to
plaint in R.C.S. No.103 of 1977 filed
simultaneously with present R.C.S. No.93 of 1977.
It was for declaration of 1/4th share in the suit
property and for injunction. Paragraph 2 of the
plaint in said R.C.S. No.103 of 1977 shows
averment that the suit property was ancestral
property of Keshav Shinde. It is specifically
mentioned that the property was ancestral property
of Keshav Shinde. So, original plaintiff Baidabai
in her two suits had approached the court with
concurrent case that the suit property was
ancestral property of her father Keshav.

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13.A.S.Gaikwad, learned counsel for the

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appellant, cited two cases. First case is

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M.Manoharan Chetti vs. M/s C. Coomaraswamy Naidu

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AIR 1980 Madras 212.In paragraph 10 of the
judgment, the Court has observed that the law by
no means regards admissions as conclusive proof of
the matter admitted. It is also observed that
unless clear inference on the fact in issue can be
raised from admission, the admission cannot be
used.Admissionmustbeunequivocal,
comprehensive and whole-hog. A truncated admission
which falls short of totality of requisite

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evidence needed for legal proof of a fact in
issue, cannot be accepted or made basis for a

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valid judicial decision. In present case,
admission in para.2 of the plaint remained intact

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though this litigation has entered into 33rd year

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of pendency. If it was a mistaken admission,

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there ought to have been application for
correction of the same in the trial court or at
least before the District Court. Even in present

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second appeal there is no application to that
effect. Parties have gone for trial with

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particular pleadings on the basis of which issues
are framed. It, therefore, cannot be said that the
admission given in the plaint should be ignored
when it is the very basis of the litigation.

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14.The second case relied upon by learned

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counsel for the appellant is Vidhyadhar vs.

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Manikrao AIR 1999 SC 1441,wherein, in para. 16,
it is laid down that when a party to the suit

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does not enter the witness box and avoids cross
examination by other side, presumption would be
that the case set up by him is not true and such
party may allow raising of the presumption against
it to the effect that had he entered into witness

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box, truth would have come out. It is, therefore,
argued on behalf of the appellant that Defendant
Nos. 3 to 5 in present case have not examined
themselves on oath. But, that is equally true
about plaintiff No.1 Baidabai. In fact,
examination of Baidabai was important as it was
she who had approached the court with a case that

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she had 1/4th share in spite of admission in
paragraph 2 of the plaint. Be that as it may.

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15.Learned Advocate Shri Tripathi for the
legal heirs of Respondent No.1 relied upon the
case ofBondar Sing vs. Nihal Singh AIR 2003 SC
1905and more particularly on para. 7 of the
judgment, wherein it has been laid down that when
the plea of sub-tenancy was not taken in the
written statement, no evidence in respect of such
plea can be looked into by the court.

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16.Having gone through the facts and

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circumstances of the case, in my opinion,
plaintiffs are bound by their pleadings in the
plaint which remained on record intact or
unchanged for 33 years. The parties have gone to
trial with aforesaid pleadings; issues were framed
and even evidence was led on the basis of such
pleadings. The District Court, therefore, cannot
be said to have committed any error in holding the
suit property to be ancestral property of Keshav

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Shinde and as such plaintiff No.1 Baidabai having
1/16th share therein.

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17.In the result, this second appeal fails

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and the same stands dismissed accordingly. Parties

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to bear their own costs.

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pnd/SA71.89 (P.R.BORKAR, J.)

Madan Gopal Yadhav v. Bhojappa Smbhu Kapse and Other

Case brief

What is this about?

What did the court decide?

Madan Gopal Yadhav v. Bhojappa Smbhu Kapse and Other

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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