Single Judge held that suit property was self-acquired by the father of the original plaintiff. Defendants failed to prove it was joint family property or possessed via adverse possession. First appeal allowed; second appeal dismissed.
Second appeal dismissed; first appellate decree affirmed. Execution of decree suspended for 8 weeks.
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.
1/27 SA-25-2024-FC 22 February 2024
Neeta Sawant
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURUSDICTION
SECOND APPEAL NO. 25 OF 2024
Shri. Dagadu Dnyanu Diwase and Ors. ....Appellants
V/s.
Shri. Prakash Dattatraya Diwase (since deceased thr. Its heirs 1A Vandana Prakash Diwase and Ors. ....Respondents
Mr. Chetan Patil i/by. Mr. Mandar Bagkar, for Appellants.
Mr. Drupad S. Patil , for the Respondents .
CORAM : SANDEEP V. MARNE, J. Judg. Resd. On : 5 February 2024. Judg. Pron. On : 22 February 2024.
JUDGMENT :
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Appellants, who are Original Defendants, are aggrieved by the decision of the first Appellate Court and have filed the present Appeal.
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Plaintiff instituted Regular Civil Suit No. 912 of 2014 in the Court of Civil Judge Junior Division, Kolhapur seeking recovery of possession of the suit property from the Defendants as well as for mense profits. The suit was defended by the Defendants by filing Written Statement inter-alia contending that the father of the Defendant had independent income through vegetable business and that the suit property was purchased jointly by the two brothers in the name of Plaintiff’s father, who was the elder brother. Defendants thus claimed that they also have title in the suit property. Defendants also pleaded in the Written Statement that they always resided in the suit property, much prior to the year 2013.
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has decreed Plaintiff’s suit by directing the Defendants to vacate the suit property and deliver its possession to Plaintiff within three months. Plaintiff is also entitled to mesne profits from the date of issuance of notice (21 July 2014) till the date of delivery of possession at the rate to be determined separately by conduct of enquiry under Order 20 Rule 12(1C) of the Code. The Defendants are aggrieved by the decision of the first Appellate Court and have filed the present Appeal.
(i)Whether the finding of the first Appellate Court about suit property being exclusively purchased by Plaintiffs’ father, Dattatray can be sustained in the light of several admissions given by the Plaintiff in the crossexamination?
(ii)Even if it is assumed that Dnaynu and Dattatray had independent sources of income, was it necessary for the Defendants to prove that the purchase of the suit property was through nucleus of the joint family income ?
(iii) Whether the evidence on record proves that the Defendants resided in the suit property much prior to the year 2013 when according to the Plaintiffs, the Defendants started occupying the same ?
(iv) Whether the Defendants are in permissive possession of suit property ?
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(v) Whether Defendants are entitled to protect their possession even if they loose title to the suit property?
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quarters with the reasoning assigned by the Trial Court and thereafter assign its own reasons for arriving at a different finding. That in the present case, the judgment of the first Appellate Court does not indicate that it has made any attempt to even consider the findings recorded by the Trial Court. That the Appellate Court has gone ahead to record its own finding as if it was a Trial Court. That without examining the reasoning of the Trial Court, it was neither possible nor open for the first Appellate Court to reverse the Decree of the Trial Court. In support of his contention, Mr. Patil would rely upon the judgment of the Apex Court in Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRs.1
1 (2001) 3 SCC 179
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admitted in the cross-examination that Defendant No.1 was born in the suit property and that since the birth occurred in the year 1964, it was conclusively proved that Defendant No.1 always resided in the suit property since the year 1964. According to him, this admission completely demolishes the false story set up by the Plaintiff in the plaint that Defendants were granted permissive or temporary use of the suit property by the Plaintiff in the year 2013. He would further submit that Plaintiff specifically admitted that the father of Defendant No.1 was also working in Shahu Mill and that the finding of the first Appellate Court about absence of income of the father of Defendant No.1 is clearly perverse. He would further submit that the finding of the first Appellate Court about Dattatraya and Dnyanu not residing in the joint family at the time of execution of the Sale-deed is again contrary to the specific admissions given by the Plaintiff in his cross-examination.
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No.1 in the suit property is proved since his birth (1964), the decree of the first Appellate Court directing delivery of possession deserves to be set aside.
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Defendants. That therefore the Appellate Court has rightly held that the suit property is purchased by Plaintiff’s father for himself and not for the alleged joint family. In support of his contention, he would rely upon the judgment of the Apex Court in the case of D.S. Lakshmaiah and Anr. V/s. L. Balasubramanyam and Anr.2
2 2003) 10 SCC 310
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in favour of the Defendants, i.e. if this Court arrives at a conclusion that the suit property was jointly purchased by Dattatraya and Dnyanu, Defendants would automatically be entitled to occupy the same. However, if the first issue is decided against the Defendants, the second issue of possession will have to be determined independently. I accordingly proceed to decide the issue of title first.
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knowledge about payment of consideration, absence of witnesses to prove payment of consideration etc. are considered as relevant factors by the Trial Court for holding that the Plaintiff failed to prove that the suit property is self-acquired property of his father.
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has recorded atleast two perverse findings. Firstly, it has held that “ there is no evidence to show that Dattatray and Dnanyu were residing in joint family at the time of the said sale-deed ”. This finding appears to be contrary to the evidence adduced by Plaintiff. In his cross-examination, Plaintiff has given following admissions:
हे म्हणणे खरे की रर.स.कं.१०४६क ही ममिळकत खरेदी केली त्यावेळेस वादी प्रततवादींच्या पूवरहकादारांचे कुटूंब एकत होते.
It is true that there was joint family of Plaintiff and Defendant’s predecessors at the time of purchase of property bearing RS No. 1046-C.
हे म्हणणे खरे की दत्तातय व ज्ञानु यांचे त्यां्या हयातीत संबंध चांगले व खेळीमिेळीचे होते. हे म्हणणे खरे की या संबंधामिुळे त्यां्यात या ममिळकतीं च े वाटप झाले नाही.
It is true that the relationship between Dattaraya and Dnyanu were good and cordial. It is true that the properties were not partitioned because of such relations.
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finding is clearly contrary to the admission given by the Plaintiff in his cross-examination as under :
मिाझे चुलते ज्ञानु हे देखील शाडु ममिलमिध्येच नोकरीस होते . ते कधी मनवृत्त झाले व कोणत्या पदावरुन मनवृत्त झाले हे मिला आठवत नाही .
My uncle was also employed in Shahu Mill. I do not remember as to when and on what post did he retire.
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issue of availability of independent income of Dnyanu at the time of purchase of the suit property. Though Plaintiff has given an admission in his cross-examination that Dnyanu was also working in Shahu Mills, the said admission is clearly contrary to the pleadings in the Written Statement. In their Written Statement, Defendants pleaded that Dnyanu was doing vegetable business and was earning income therefrom. The relevant pleadings in the Written Statement is as under :-
प्र.वादी नं. १ यांचे वडील हे भाजीपाल्याचा व्यवसाय करीत होते. त्यामिधून त्यांना चांगले उत्पन ममिळत असे.
Father of Defendant No. 1 was doing vegetable business and he was earning good income from the same.
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24 . Coming back to the issue of existence of joint family between Dattatraya and Dnyanu, though no evidence is led by the Defendants, Plaintiff’s admissions in his cross-examination would lead one to believe that Dattatraya and Dnyanu lived in joint family at the time of purchase of the suit property. I therefore proceed on an assumption that there was indeed a joint family between Dattatraya and Dnyanu. The sale-deed has been executed in the name of Dattatraya alone. Therefore, the natural presumption is that Dattatraya is the sole owner of the property. Since Defendants contended that despite execution of Sale-deed in the Dattatraya‘s name, the purchased property is of joint family, the burden of proving this assertion shifted on Defendants. And to prove this defence, it became incumbent for them to lead evidence about purchase of the property through joint family income. Therefore, the Defendants ought to have led evidence to show that Dnanyu contributed in payment of consideration for purchase of the suit property. Defendants however chose not to lead evidence. Thus there is no evidence on record that Dnyanu paid any part of consideration for purchase of the suit property. As a matter of fact, perusal of the entire Written Statement filed by the Defendants would indicate that there is no averment that Dnyanu individually contributed for purchase of the property. On the contrary, the defence taken by the Defendants is that the suit property was purchased by Dattatraya and Dnyanu through joint family income. If this is the case, it became incumbent for the Defendants to prove that there existed any joint family income. Perusal of the entire evidence on record would indicate that the evidence to support
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existence of joint family income is clearly lacking. Nothing has come on record to indicate that the joint family owned any property which was generating any income. On the contrary, it has come on record that Dattatraya and Dnyanu were earning their own incomes through service in Shahu Mill and vegetable business respectively.
7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant.
8. There was evidence and it has been established that Item 2 measuring 15 guntas of land was joint Hindu family property but, admittedly, no evidence has been led that the said joint Hindu family property was yielding any income or that any nucleus was available with the aid whereof Item 1 property could be purchased by the first appellant. Admittedly, no evidence has been led on behalf of the respondent-plaintiffs to show income from Item 2 property or value of the property. At the same time no evidence has also been led by the first appellant to prove that he had any separate income so as to acquire them 1 property. In absence of evidence either way which party would succeed and which fail, is the question. The legal position is well settled as we will presently notice.
17. In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of
Neeta Sawant 18/27 SA-25-2024-FC 22 February 2024
the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents’ claim of Item 1 to be joint family property would fail as rightly held by the first appellate court.
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be selfacquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
(emphasis supplied)
(ii) existence of joint family income,
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(iii) purchase of property through nucleus of joint family income.
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share in suit property in name of Plaintiff and his brother. That Defendant No. 1 retained his shares in suit property as well as in property at Ruikar Colony. That he received Rs. 80,000/- from redevelopment of property at Ruikar colony. However, Defendants did not lead evidence to prove these pleadings. Purchase of two separate properties by Dattatraya and Dnyanu in their individual names having independent incomes in fact seem to suggest that both properties were self-acquired properties of Dattatraya and Dnyanu. Non-grant of any share to Plaintiff in property purchased in Dnyanu’s name and receipt of consideration by Defendant No. 1 in redevelopment of that property clearly suggests that suit property is not a joint family property. Defendants made a lame attempt to justify unbelievable story of possessing share in both properties of Dnyanu and Dattatraya by pleading that there was relinquishment by Plaintiff and his brother in favour of Bhikaji in Ruikar Colony property and by Bhikaji in favour of Plaintiff and his brother in the Suit Property. But this story woven by him is not proved by leading evidence.
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was purchased through nucleus of joint family income. First two questions of law are answered accordingly.
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Appellate Court has held that the Defendants are in unauthorised possession of the suit property since the date of revocation of permission.
६ ) वरीलप्रमिाणे वस्तुसस्स्थिती असताना यातील प्रततवादी नं . १ व २ यांनी वादीकडे जानेवारी २०१३ मिध्ये येऊन त्यांची जमिा मवकससत करून आलेली ममिळकत मवक्री केली असून आम्ही भाडेने इतर मठकाणी वास्तव्यास होतो . मिात जागामिालक यांनी जागा खाली करणेस तातडीने सांमगतले असलेने दावा ममिळकतीमिध्ये तात्पुरती सोय करा . नवीन जागा ममिळकतच आम्ही दावा ममिळकत खाली करतो असे सांमगतले . सदर ममिळकतीमिध्ये वादी हे त्यांचे पत्नी व मिुलांसोबत रहाणेस असून प्रततवादीची अडचण मवचारात घेऊन व चुलतभाऊ असलेने वादीने प्रततवादींचना तात्पुरता आसरा दावा ममिळकतीमिध्ये घेणेबाबत परवानगी मदली . यावेळी प्रततवादी हे वादीची जाणूनबुजून मदशाभूल करीत असलेबाबत व वादीची प्रततवादी फसवणूक करत असलेबाबत वादी व त्यांचे कुटुंबास पुसटशी कल्पना आली नाही . वादी यांनी प्रततवादीवर मवश्वास ठेवून स्वतः तळमिजलेवरील दोन खोल्यांमिध्ये अडचणीने राहून पमहले मिजलेवरील ममिळकत प्रततवादींचना तात्पुरती स्वरूपात व प्रततवादीची अडचण मवचारात घेवून प्रततवादींचना वापरणेस मदली .
Neeta Sawant 23/27 SA-25-2024-FC 22 February 2024
हेम्हणणेखरेआहेकीभभकाजीदगडूवमिाझाजनमिसस.स. क्रं१०४६मिध्येझाला.
It is true that Bhikaji, Dagdu and me were born in CS No. 1046.
हेम्हणणेखरेकीप्रततवादीक्रं. १वं२यांचेलगझहालेत्यावेळेसमिीभभकाजीवंप्रततवादी क्रं.1 असेआम्हीसस.स. नं१०४६मिध्येराहणेसहोतो.
It is true that at the time of marriage of Defendant Nos. 1 and 2, me, Bhikaji and Defendant No. 1 were residing in CS No. 1046.
हेम्हणणेखरेआहेकीयाममिळकतीमिध्येदोनमवजममिटसरआहेत. हेम्हणणेखरेआहेकीएक मवजममिटरमिाझानावानेआहेवंत्याचेमबलमिीभरतोवंदुसरेमवजममिटरप्रततवादीक्रं. १ने नावानेआहे, त्याचेमबलतोभरतो.
It is true that there are two electricity meters in the property. It is true that one of the meters is in my name and I pay Bills of the same and the second meter is in the name of Defendant No. 2, who pays its Bills.
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used to reside earlier in Mahadik Vasahat and that she used to visit Defendants there. She stated in her cross examination that at the time of marriage of Defendant No. 1, he was not residing in the suit property. She reiterated that she visited Defendants in their house at Mahadik Vasahat. That the said Plot in Mahadik Vasahat was purchased by Dnyanu. That she last visited Defendants in house at Mahadik Vasahat 10-12 years ago. That prior to 2013, Defendants were residing in rented place at Market Yard and came in suit property in 2013. The third witness was Mohan Baliram Pargande, whose evidence was essentially about electricity connection procured by Defendant No. 2 in 2013.
Neeta Sawant 25/27 SA-25-2024-FC 22 February 2024
1’s brother Bhikaji, who in turn relinquished his share in suit property. That however Defendant No. 1 retained his share in the suit property. That Defendant No. 1 and his brother gave the property at Ruikar colony for redevelopment for which Defendant No. 1 received Rs. 80,000/-. That Defendant No. 1 has 1/4th share in suit property. That Defendants are in possession of 1 room on ground floor and 2 rooms on first floor. However, to prove these assertions, Defendants did not lead evidence. Therefore, the pleadings about Plaintiff relinquishing his share in Ruikar colony property, etc were not proved. On account of failure on the part of Defendant No. 1 to prove above pleadings, his story of possession of suit property for long time is not believable. Though there is some variance in name of the concerned property which is named by Plaintiff and his witness as ‘Mahadik Vasahat’ and by Defendants as ‘Ruikar Colony’. Though property is referred in different names, it is one and the same property. Thus, Defendants’ written statement also proves connection of Defendants with another property at Mahadik Vasahat/Ruikar Colony. Therefore Plaintiff’s story of Dnyanu and Defendants residing at property in Mahadik Vasahat/Ruikar Colony cannot be entirely disbelieved.
Neeta Sawant 26/27 SA-25-2024-FC 22 February 2024
claim in suit property was premised purely on title, which they have failed to establish. On account of failure to prove title, claim for protection of possession must fail.
Neeta Sawant 27/27 SA-25-2024-FC 22 February 2024
SANDEEP V. MARNE, J.
3 issues framed by the court
Whether the suit property was self-acquired by the plaintiff's father or purchased through the nucleus of joint family income.
Whether defendants, lacking title and failing to prove adverse possession, are entitled to continued possession of the suit property.
Whether the first appellate court erred in reversing the trial court's decree that failed the plaintiff due to lack of evidence on self-acquisition.
Colour shows how this judgement treated each authority
Santosh Hazari vs. Purushottam TiwariReferred¶36
Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRs. (2001) 3 SCC 179 · Who else cites this
D.S. Lakshmaiah and Anr. vs. L. Balasubramanyam and Anr.Distinguished¶81
D.S. Lakshmaiah and Anr. V/s. L. Balasubramanyam and Anr. 2003) 10 SCC 310 · Who else cites this
1 provisions across 1 enactments
Shri. Dagadu Dnyanu Diwase and Ors.
Shri. Prakash Dattatraya Diwase
Sandeep V. Marne
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
