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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT NAGPUR
Second Appeal No. 23/2011
1] Hansraj s/o Premlal Rahangdale,
since deceased through its LRS.
A. Smt. Puja wd/o Hansraj Rahangdale
Aged about 46 years, Occ. Agriculture
B. Vivek s/o Hansraj Rahangdale,
Aged about 19 years, Occ. Student.
C. Ku. Diksha d/o Hansraj Rahangdale
Aged about 15 years, Occ. Student.
All R/o Kelwad, Po. Tukumnarayan,
Ta. Arjuni/ Mor Distt. Gondia.
Nos. (B) and (C ) through their mother
no. (A) the natural guardian.
2] Mahesh s/o Premlal Rahangdale
Aged about 40 years.
3] Kausalyabai wd/o Premlal Rahangdale,
aged about 68 years.
4] Sau. Sushila w/o Vasant Shahare,
aged about 50 years, Occ. household,
R/o Pune, Ta & Distt. Pune.
5] Sau. Kamal Premendra Bhagat
aged about 48 years.
6] Sau. Tameshwari w/o Hajraj Katare
aged about 48 years.
7] Sau. Sangita w/o Dhalsingh Bhagat,
aged about 36 years.
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No. 5 to 7 r/o Paraswada, Ta. Tirora,
Distt. Gondia. ... Appellants.
VERSUS
1] Giridhar s/o Gumanbhau Rahangdale
Since died through its LRs.
A. Dinesh Giridhar Rahangdale,
aged about 53 years,
R/o Kelwad, Tq. Arjuni (Mor)
Distt. Gondia.
B. Sau. Pramilabai w/o Moreshwar Katare,
aged about 65 years,
R/o Hirdamali, Ta. Goregaon,
Distt. Gondia.
C. Sau. Shakuntalabai Bhupendar Katare,
aged about 62 years,
C/o Dr. Katre, Civil Lines, Gondia,
Tahsil and District Gondia.
D. Sau. Vidya w/o Chandrasen Patel,
aged about 59 years,
R/o Rampuri, Post Murmadi (Tupkar)
Tq. Lakhni, distt. Bhandara.
E. Sau. Munishwaribai Narayan Bisen,
R/o Rawanwadi, Shakti Rice Mill,
Gondia.
F. Sau. Geetabai w/o Khilendra Yede,
aged about 49 years,
R/o Pathargaon, Ta. Lanji, distt. Balaghat
2. The State of Maharashtra.
representing the Revenue Department,
through the Collector, Bhandara, Tahsil
and district Bhandara.
3. The District Inspector of Land Record,
Bhandara, Tahsil and district Bhandara.
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4. The Taluka Inspector, land records, Arjuni
Morgaon, Tah. Arjuni Morgaon, district
Bhandara. ... Respondents.
Mr. Sharma, Advocate holding for Mr. Anand Parchure, Advocate for the
appellants.
Mr. R.K. Borkar, Advocate for respondent nos.1-A to 1-F..
Mr. S. M. Bhagde, AGP for respondents 2 to 4.
...........
CORAM : R. M. SAVANT, J.
ig DATED :31/1/2011.
ORAL JUDGMENT :
1] Heard the learned counsel for the parties. With the
consent of the parties heard finally at the admission stage.
2] The above Second Appeal takes exception to the
judgment and decree dated 4th August 2010 passed in Regular Civil
Appeal No. 48/2007; by which the judgment and decree passed by
the Trial Court in Regular Civil Suit No. 163/1997 came to be set
aside and the suit came to be dismissed.
3] The appellants are the original plaintiffs, who had filed
the said Regular Civil Suit No. 163/1997 for declaration and
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correction of revenue record in respect of the suit tank, more
specifically described in para 2 of the plaint. The suit property is old
Khasra No. 107, which is now part of Gat No.47 wherein the suit
water tank known as Mahuri Bodi. The plaintiffs and the
defendants claim through a common ancestor Ladkanbapu. The
plaintiffs’ father is one Premlal, who was the grandson of
Ladkanbapu, whereas the father of defendant no.4 Giridhar was the
son of one Gumanbhau, who was the son of said Ladkanbapu. It
was the case of the plaintiffs that the ancestral property had
undergone partition whereby the said Premlal and the said
Gumanbhau were enjoying the property separately.
4] It was the case of the plaintiffs that the suit property
had come to the share of the said Premlal and that after the death of
said Premlal, the plaintiffs were in exclusive possession of the said
property. The cause for filing of the said suit was that the defendant
no.4 had filed an application for correction of the record of rights.
The plaintiffs came to know of the said fact on 1.10.1996 when they
obtained certified copy of the 7/12 extract. The defendant no.4
taking advantage of the said order dated 1.10.1996 had come on the
site and obstructed the plaintiffs from fishing in the tank.
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5] The defendants in their written statement took a
stand that they were owners of the suit property and that it was
jointly owned and possessed by Premlal and defendant no.4 and
that on 19.12.1973 the plaintiffs’ father had applied for mutation of
the said suit tank only in his name and accordingly, the name of
defendant no.4 was deleted vide mutation entry no.189 which
resulted in the defendant no.4 filing a complaint before the higher
revenue authority and by an order dated 16.5.1996 the name of
defendant no.4 was reinstated.
6] It was the case of the defendants that the said order
was not challenged by the plaintiffs before the next higher authority
and, therefore, the plaintiffs do not have right to file the suit. It
was, therefore, case of the defendants that Khasra no.107, area 5.83
acres i. e. suit tank is used for irrigation of lands of both the brothers
and as such there was joint ownership of both brothers which has
continued from the past the defendants denied the exclusive
ownership of the plaintiffs.
7] Based on the pleadings, the Trial Court framed relevant
issues. The Trial Court on the basis of the evidence that was
adduced before it decreed the suit. The Trial Court considered the
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mutation entry at (Ex. 80), notice (Ex. 34) addressed by one
Advocate M. R. Ghodichore, notice (Exhibit 61) under the
Maharashtra Agricultural Land (Ceiling and Holding) Act and the
copy of Wajib-Ul-Arz (Ex. 62). Notice (Ex. 117) which is also
notice under Maharashtra Agricultural Land (Ceiling and Holding)
Act came to the conclusion that the said documentary evidence
suggests that since long the father of the plaintiff nos. 1, 2, 4 to 7
namely Premlal was in possession of the suit tank. The Trial Court
resultantly issued declaration in favour of the plaintiffs that they are
exclusive owners of said Gat No. 107 at mouza Kelwad.
8] Being aggrieved by the decree of the Trial Court dated
8th December, 2004 the defendants filed Regular Civil Appeal No.
48/2007. In view of the finding of the Trial Court that the partition
between the various branches was proved and in the absence of any
direct evidence on the said aspect, the Appellate Court on a
re-appreciation of the documentary evidence which was on record
came to the conclusion that the Trial Court had misinterpreted and
misread the document (Exhibit 80) as well as notice Exhibit 34 of
which much reliance was placed on behalf of the plaintiffs in the
Trial Court. Significantly, reading of the order of the First Appellate
Court makes it clear that the Appellate Court has not referred to the
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document known as Wajib-Ul-Arz or by notices under the
Maharashtra Agricultural Land (Ceiling and Holding) Act namely
Exhibit 61 and 117 which were issued to Premlal and Gumanbhau
though whom the plaintiffs and defendants are claiming. In fact,
there is no discussion at all in the judgment of the First Appellate
Court concerning the aforesaid three documents. It is well settled
by the judgments of the Apex Court that the First Appellate Court
has to come to close quarters with the findings recorded by the Trial
Court if it wants to up-set the findings recorded by the Trial Court
and assign its own reasons a useful reference would be made to the
judgment of the Apex Court reported in 2001 (2) Mh. L. J. 786 in
the matter of Santosh Hazari Vs.Purushottam Tiwari deceased by L.
Rs. Paragraph 15 of the said report is material and is reproduced
hereunder:-
“A perusal of the judgment of the trial Court shows that
it has extensively dealt with the oral and documentaryevidence adduced by the parties for deciding the issue on
which the parties went to trial. It also found that in
support of his plea of adverse possession on the
disputed land, the defendant did not produce any
documentary evidence while the oral evidence adduced
by the defendant was conflicting in nature and hence
unworthy of reliance. The first Appellate Court has, in a::: Downloaded on – 09/06/2013 16:48:33 :::
8very cryptic manner, reversed the finding on question of
possession and dispossession as alleged by the plaintiff
as also on the question of adverse possession as pleadedby the defendant. The Appellate Court has jurisdiction to
reverse or affirm the findings of the trial Court. First
appeal is a valuable right of the parties and unlessrestricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The
judgment of the appellate Court must, therefore, reflectits conscious application of mind, and record findings
supported by reasons, on all the issues arising along with
the contentions put forth, and pressed by the parties fordecision of the Appellate Court. The task of an Appellate
Court affirming the findings of the trial Court is an
easier one. The Appellate Court agreeing with the viewof the trial Court need not restate the effect of the
evidence or reiterate the reasons given by the trial Court;
expression of general agreement with reasons given by
the Court, decision of which is under appeal, would
ordinarily suffice (See Girijanandini Devi & Ors. vs.
Bijendra Narain Choudhary, AIR 1967 1124). We would,
however, like to sound a note of caution. Expression of
general agreement with the findings recorded in the
judgment under appeal should not be a device or
camouflage adopted by the Appellate Court for shirking
the duty cast on it. While writing a judgment of reversal
the appellate Court must remain conscious of two
principles. Firstly, the findings of fact based on
conflicting evidence arrived at by the trial Court must
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weigh with the Appellate Court, more so when the
findings are based on oral evidence recorded by the
same presiding Judge who authors the judgment. This
certainly does not mean that when an appeal lies on
facts, the Appellate Court is not competent to reverse a
finding of fact arrived by the trial Judge. As a mater of
law if the appraisal of the evidence by the trial Court
suffers from a material irregularity or is based on
inadmissible evidence or on conjectures and surmises,
the Appellate Court is entitled to interfere with the
finding of fact (See Madhusudan Das vs. Smt. Narayani
Bai & Ors., AIR 1983 SC 114). The rule is – and it is
nothing more than a rule of practice – that when there is
conflict of oral evidence evidence of the parties on any
matter in issue and the decision hinges upon the
credibility of witnesses, then unless there is some special
feature about the evidence of a particular witness which
has escaped the trial Judge’s notice or there is a
sufficient balance of improbability to displace his opinion
as to where the credibility lie, the Appellate Court should
not interfere with the findings of the trial Judge on a
question of fact . (See Sarju Pershad Ramdeo Sahu vs.
Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC
120). Secondly, while reversing a finding of fact the
Appellate Court must come into close quarters with the
reasoning assigned by the trial Court and then assign its
own reasons for arriving at a different finding. This
would satisfy the Court hearing a further appeal that the
first Appellate Court had discharged the duty expected
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of it. We need only remind the first Appellate Courts of
the additional obligation cast on them by the scheme of
the present Section 100 substituted in the Code. The
first appellate Court continues, as before, to be a final
Court of facts; pure findings of fact remain immune from
challenge before the High Court in second appeal. Now
the first Appellate Court is also a final Court of law in the
sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court
in second appeal because the jurisdiction of the High
Court has now ceased to be available to correct the
errors of law or the erroneous findings of the first
Appellate Court even on questions of law unless such
question of law be a substantial one.”
9] The substantial question of law, therefore, that arises
for consideration is viz. Whether the First Appellate Court could
have reversed the findings of the Trial Court without considering the
documents (Ex.34, 117, 61 and 62)?. In my view, having heard the
learned counsel for the parties and considering the judgment of the
Apex Court in Santosh Hazari (supra) the Appellate Court in
reversing the judgment of the Trial Court has failed to advert to the
principles enunciated in the said judgment by not even adverting to
the documentary evidence (Exhibits 34, 61, 117 and 62). For the
said limited purpose, the impugned judgment and decree of the
First Appellate Court is required to be set aside and the matter is
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required to be relegated back to the First Appellate Court for denovo
consideration of the said Regular Civil Appeal No.40/2007. The
Appellate Court to record its findings in respect of exclusivity of
possession as claimed by the plaintiffs by considering the entire
documentary evidence including the above four documents. On
such remand, the First Appellate court to decide the appeal by 31 st
October, 2011.
10]
The above Second Appeal is accordingly allowed with
no order as to costs.
JUDGE
Ambulkar
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