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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.354 OF 1996.
APPELLANTS : 1. Nandkishore Shamrao Daphe,
aged about 37 years.
2. Shobha w/o Nandkishore Daphe,
aged about 35 years,
3. Shamrao Baliramji Daphe,
aged about 74 years.
Nos.1 to 3 r/o Rajura Bazar,
Tq. Morshi, Distt.Amravati.
..VERSUS..
RESPONDENTS: 1. Laxmibai wd/o Lalchand Wazir,
aged about 65 years, resident of
Amdapur, Tq.Warud, Distt.Amravati
(deleted)
2. Sushilabai w/o Motisingh Rathod,
aged about 47 years, r/o Nandurbar
Railway Quarter Distt.Dhuliya.
3. Ramesh Ambalal Wazir,
aged about 43 years.
4. Parmesh Ambalal Wazir,
aged about 46 years,
Nos.3 and 4 r/o Sarafa, Amravati.
5. Kesharbai wd/o Ambalal Wazir,
aged about 67 years. (deleted)
6. Mulchand s/o Ambalal Wazir,
aged about 44 years. (deleted)
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Mr.N.R.Saboo Advocate for the appellants.
None for the respondents.
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CORAM: C.L.Pangarkar, J.
DATED : 22nd April, 2010.
ORAL JUDGMENT:
1. This is an appeal by original defendants nos.1 to 3
against whom a decree for declaration and injunction has been
passed. The parties shall hereinafter be referred to as the
plaintiffs and the defendants.
2. The facts giving rise to the appeal are as follows –
The plaintiffs/respondent nos.1 to 3 and defendant nos.4
and 5 are the joint owners of field Survey No.52/2, which is
the subject-matter of the suit. It is the contention of the
plaintiffs that until 19/5/1980 the said land was never
partitioned amongst the plaintiffs and defendant nos.4 and 5.
It is contended that plaintiff no.1 has one-half share in the said
suit property while defendant nos.4 and 5 and plaintiff nos.2
and 3 have the other one-half share in the suit property. It is
contended that the relations between defendants nos. 4 and 5
and the plaintiffs are strained. The plaintiffs submit that
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defendant no.4 without the consent of the plaintiffs and
defendant no.5 sold 2 acres 15 gunthas of land surreptitiously
to defendant nos.1 to 3 by registered sale-deed dated
11/5/1980. The plaintiffs have contended that defendant no.4
had no right to sell the said land to defendant nos.1 to 3. They,
therefore, prayed for setting aside that sale.
3. Defendant nos.1 to 3 filed their written-statement. They
admitted that they have purchased the suit property from
defendant no.4. According to them, the suit land had fallen to
the share of defendant no.4 in a partition between defendant
no.4 and Laxmibai – wife of plaintiff no.1. They submit that
since the land had fallen to the share of defendant no.4 in
partition on 21/4/1972 under a registered partition-deed,
Kesharbai was the exclusive owner and she had every right to
sell the property.
4. Defendant nos.4 and 5 did not contest the suit and did
not file any written-statement in the suit.
5. The learned Judge of the trial court found that the
plaintiffs and defendant nos. 4 and 5 were the joint owners of
the suit property. Although he found that there was partition,
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he found that it was not legal as plaintiffs were excluded. It
was also held that defendant no.4 had without any right, title
or interest sold the suit property to defendant nos. 1 to 3. He
also held that defendant no.4 Kesharbai was not the sole owner
of the property by virtue of partition and holding so, he
decreed the suit.
6. Feeling aggrieved thereby, defendant nos.1 to 3 preferred
an appeal before the District Judge. The learned Joint District
Judge, who heard the appeal, also found that the suit property
was joint property of the plaintiffs and defendant nos.4 and 5
and they were in possession of the same. He found that
defendant no.4 had no authority to sell the property and there
was no partition between Laxmibai and Kesharbai. Holding
so, he confirmed the decree passed by the trial court. Hence,
this second appeal by defendant nos. 1 to 3.
7. The appeal was admitted by order dated 23/4/1998 on
the following substantial questions of law.
“In view of the finding and reasons as contained
in appellate court order regarding partition of
properties, whether declaration granted
restrictive it to defendant no.4 is justified and
raised substantial question of law ?.”
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After hearing the learned counsel for the appellants and the
respondents, it was felt that it was necessary to reformulate the
question of law. This was necessary because the appeal was
preferred by the defendants/purchasers and not the plaintiffs.
The above question of law could be formulated had it been the
appeal of the plaintiffs. The questions of law, which are now
formulated, are as follows –
1. Whether the appellate court was justified in
reversing the finding of the Trial court that there
was partition amongst Laxmibai and Kesharbai ?
2. Whether therefore the appellate court could
have set aside the sale in respect of share of the
plaintiffs and defendant no.5 if there waspartition ?
8. I have heard the learned counsel for the appellants and
the respondents.
9. It would be necessary first to see what are the pleadings
of the plaintiffs. In para no.2 of the plaint, the plaintiffs
contended that they and defendant nos.4 and 5 are the joint
owners of the suit property and there was never any partition
amongst them till 19/5/1980 or even any time thereafter.
Thus, they contend that Kesharbai/defendant no.4 alone did
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not have a right to sell the suit property. Defendant nos.1 to 3,
who are the purchasers, specifically in para no.19 of the
written statement plead of there being a partition between
Laxmibai and Kesharbai on 21/4/1972 and same having been
registered and suit property having fallen to share of defendant
no.4. Inspite of such allegations by defendants, plaintiffs do
not come out with a case that the said partition is void. Be that
as it may, the fact is that the plaintiffs pleaded the property to
be joint while defendant nos. 1 to 3 say that there was a
partition and the suit property fell to the share of defendant no.
4. It cannot be disputed that if there was no partition the suit
property would belong to the plaintiffs and defendant nos. 4
and 5. Therefore, it will have to be seen that if courts below
have properly appreciated the evidence and the facts.
Normally, the appellate court is not supposed to interfere with
the findings of the trial court unless it is based on no evidence
or is totally perverse. The trial judge has certainly accepted as
a fact that there was a partition on 21/4/1972 between
Laxmibai and Kesharbai yet he records a finding on issue no.2
in the affirmative.
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Do the plaintiffs prove that S.No.52/2
was not partitioned amongst them and
between defendant nos.4 and 5 till
19/5/1980 or any time thereafter ?
……. ….. Yes
I quote the observations of the learned Judge on that aspect in
para no.10 of the judgment.
“From the record it appears that the partition is
effected in between Laxmibai (Plaintiff No.1-A)
and Kesrabai (defendant No.4). But the questions
arise before me whether Laxmibsai and Kesarabaihave right to partition the property during the life
time of deceased Lalchand and by keeping aside
the plaintiff no.2, 3 and defendant no.4. Theanswer is certainly not, because Laxmibai has no
right to claim partition during the life time of her
husband Lalchand. Even assuming for a momentthat the partition the answer is no, because
extract of 7/12 of the year 1971-72 to 1978-79,
which are at Exhs.108 to 112, are clear that theplaintiffs and defendant nos.4 and 5 are
cultivating the field No.52/2 jointly.”
10. From this discussion, it appears that the learned judge
accepts that there was a partition but finds that these two
ladies could not amongst themselves partition the property. He
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thus finds that although there was a partition, it was not legal
as they could not exclude the plaintiff and defendant no.5.
Here, the plaintiffs do not challenge the partition between
Laxmibai and Kesharbai at all on any count including their
right to partition. When the plaintiffs do not challenge the
registered partition-deed, the learned judge could not have
decided the question if such partition was valid or not and
whether Laxmibai and Kesharbai alone had a right to partition.
11. It appears to me, however, that the trial court had rightly
found that there was a partition. The appellate court’s reasons
negating the theory do not appear to me to be convincing at all
as he has absolutely wrongly appreciated the facts and the
evidence. He forgets that civil cases are to be decided on the
basis of preponderance of the probabilities. In fact, in the
instant case, one need not to go by even preponderance of
probabilities as there is ample evidence on record to hold that
there was partition on 20/4/1972 as pleaded by defendant
nos.1 to 3.
12. The first thing that needs to be noted is that the
defendants specifically plead of partition amongst Laxmibai and
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Kesharbai on 21/4/1972 by registered deed. The plaintiffs do
not traverse this specific plea on part of the defendants nor do
they say by amending the plaint that the said partition is for
certain reasons void or not binding on them. The next
important circumstance is that Kesharbai/defendant no.4, who
executed sale-deed and defendant no.5, who signs the sale-
deed as attesting witness do not appear in the court and are
ex parte. It is in this background, the facts and the evidence
ought to have been appreciated by the courts below.
13. Learned judge of the appellate court observes that though
a photocopy of the registered partition-deed was shown to the
witness of plaintiff i.e. PW 2, defendants nos.1 to 3 did not call
upon the plaintiffs to produce the original deed and since no
such attempt was made, secondary evidence was not
admissible. The observations of the learned Judge of the
appellate court that no notice to produce original was given
and therefore, no secondary evidence could be led is against
the record. In file ‘D’ of the trial court, the defendants, vide
application (Exh.61) produced the copy of notice given under
Order 12 Rule 8 of C.P.C. to the plaintiffs. The copy of the said
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notice is at page No.103 in file ‘D’. By this notice, the plaintiffs
were called upon to produce the original. The original was not
produced inspite of the notice. PW 1 Parmesh was asked a
question as to whether he has produced the original deed and
he answered in the negative. He even says that he does not
know anything about the partition-deed. It is thus clear that
defendants did call upon the plaintiffs to produce the original
but the plaintiffs failed. Therefore, the defendants were
justified in showing the Photostat copy of the registered
partition to PW 2 Balmukund during his cross-examination.
PW 2 Balmukund admits in cross-examination his signature on
the said document as a attesting witness. He even proves the
signature of the executants of the said document. Thus, if the
plaintiffs feign ignorance about the partition-deed and do not
produce the original, the defendants ought to be allowed to
lead secondary evidence. From the admission of PW 2 of his
signature and proving the signature of the executants on the
partition-deed, it could be said that the partition-deed was, in
fact, proved. The learned judges of both the courts below
failed to take into consideration this material piece of evidence.
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There is other evidence available even if the above one is
ignored which I say cannot be. Kesharbai/defendant no.4 had
executed a sale-deed Exh.76 in favour of Ramrao Nikam and
Namdeo Deshmukh on 4/5/1973. This sale-deed is in respect
of southern portion of survey No.78/2. In this sale-deed there
is a recital about the field having fallen to her share in the
registered partition dated 21/4/1972. Similarly, Laxmibai had
also executed a sale-deed (Exh.77) on 2/5/1973 in favour of
the above two persons. This sale-deed is of the Northern
portion of Field S.No.78/2. In this sale-deed also it is
mentioned that this northern portion had fallen to the share of
Laxmibai in the registered partition dated 21/4/1972. Thus,
both these recitals in the sale-deeds executed by Kesharbai and
Laxmibai make a reference to partition between Laxmibai and
Kesharbai. Not only there is a reference to the partition-deed
but there is a consent by the plaintiffs and defendant no.5 to
the execution of the sale-deeds. For execution of sale-deed
(Exh.76), plaintiff no.2/Parmesh, no.3 Ramesh and defendant
no.5 Mulchand – sons of Ambalal and Kesharbai have given
consent. Similarly, for execution of the sale-deed Exh.77 by
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Laxmibai, her husband i.e. plaintiff no.1 Lalchand had given
consent. Both sale-deeds bear their signatures. Even the
registered partition-deed bears signature of plaintiff no.1 as
attesting witness. Inspite of the fact that Lalchand signed the
registered partition-deed, he joins the suit as a plaintiff no.1
and falsely contends that there was no partition at all.
Similarly, the other plaintiffs though signed sale-deed by way of
consent, which contains a recital of partition and Kesharbai
being full owner they have a courage to take an absolutely false
plea that there was never a partition. I may reproduce here an
important recital in Exh.76, which goes to show why the
plaintiffs and defendant no.4 Kesharbai’s son signed the sale-
deed.
";ka l h la i Rrhpk ys [ k fygq u ns . kkj jes ' k
va c kykyth othj o ijes ' oj va c kykyth
othj o eq y pa n va c kykyth othj] jk-
mejkorh la i Rrhpk ys [ k fygw u ns r ks dh] rq E gh
ojhy ds ‘ kj tots va c kykyth othj fgps
toGw u ojhy ‘ks r rq E gh fodr ?ks r ys vkgs –
ojiz e k.ks jft”Vª j okV.kh i=kiz e k.ks rs ‘ks r
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frps p fgLL;kyk vkys y s vkgs ] vkepk R;k
‘ks r kr gDd ukgh- rqEgka l vkeps gDdkfo”k;h
la ‘ k; vkgs Eg.kw u vkEgh rq e ps [kjs n h[krkl
foukeks c nyk la e rh ns r vkgks r – vkEgh gDd
oxS j s nk[kfo.kkj ukgh- nk[kfoY;kl rks jnn~
vls d#u gh fpBB~ h lea r hlg fygq u fnyh
vkgs – ”
This goes to show that the purchaser had a doubt and was
apprehensive about exclusive title of Kesharbai and therefore,
he insisted on plaintiffs nos.2 and 3 and defendant no.5 in
joining the sale-deed as consenting party. This recital clearly
shows that the plaintiffs and defendant no.5 accepted the
partition and right of Kesharbai and gave formal consent to sell
the property. The learned Judges of the courts below have
failed to read the documents on record and ignored the best
piece of evidence available on record once again. There is thus
more than enough proof of there being a partition and
Kesharbai being full and exclusive owner of the suit property.
This was all to the knowledge of the plaintiffs and defendant
no.5.
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14. All this evidence is further corroborated by certain
entries in revenue record. Exh.98 is a crop statement. It shows
that survey No.58/2 is in the name of Laxmibai and Kesharbai
in equal proportion but separate. Exh.99 and 100 are the
copies of the Ferfar register i.e. mutation register. It speaks of
separate mutation upon partition amongst them. Although the
entry is not finally certified, the fact remains that cognizance of
partition was taken and separate sub-divisions were given, as
can be seen from column no.11. Unnecessarily, more
weightage is attached to entry not being certified forgetting
that an intimation of partition was given to the revenue
authorities. In the circumstances, I find that the courts below
completely misdirected themselves and ignored the evidence
available altogether. The findings are, therefore, liable to be
set aside as being perverse. The substantial questions of law
are answered accordingly. Since I find that there was partition
between Laxmibai and Kesharbai, Kesharbai had become full
owner of the property. The plaintiffs and defendant no.5 as
well defendant no.4 were fully aware of this partition which is
a registered document. It was acted upon by the plaintiffs and
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defendant No.5. They are estopped from saying that there was
no partition. Kesharbai could validly transfer the suit property
to defendant nos.1 to 3. They have become full owner of the
property. Resultantly the appeal is allowed and the judgments
and decree passed by the courts below are set aside. The suit is
dismissed. The appeal is allowed with costs throughout. I
would also saddle compensatory costs on the plaintiffs of Rs.
2000/- for having raised an absolutely plea.
JUDGE.
chute
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