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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.193 of 1990
1. Siddhi s/o Chunilal Daubhal
age major, occupation agril.
r/of Ibrahimpur, Taluka
Bhokardan (District Jalna)
2. Kasabai Chunilal Daubhal,
age 67 years, occup.household
r/of Ibrahimpur, Taluka ..Appellants/
Bhokardan. ori.defts.
No. 2 and 3.
versus
1. Suresh s/o Gopikishan Prohit
age major, occup. agriculture
r/of Bhokardan, Dist. Jalna.
2. Chunilal s/o Lukha Daubhal,
age major, occup. agriculture, ..Respondents/
r/of Ibrahimpur, Tq.Bhokardan ..Resp.No.1 is
orig.pltff.&
Resp.No.2 is
ori.deft.No.
2.
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Shri M.D. Joshi, Advocate, for the appellants.
Shri A.M.Dabir, Advocate, for Respondent No.1.
CORAM: P.R.BORKAR, J.
Judgment reserved on 6.7.2009
Judgment pronounced on 10.7.2009
JUDGMENT.
1. This is a second appeal filed by
original defendant Nos. 2 and 3 being
aggrieved by the judgment and decree passed by
the Additional District Judge, Jalna in
Regular Civil Appeal No.191 of 1983 decided on
6.3.1990, whereby the judgment and decree of
the trial court (Civil Judge, Junior Division,
Bhokardan) in Regular Civil Suit No. 16 of
1977 decided on 14.9.1983 was reversed and
suit of Respondent No.1-Plaintiff for
injunction was allowed. The trial court had
not only dismissed the suit, but even in the
absence of Cross Objections, directed the
plaintiff to handover possession of suit
property to the Defendants within three months
from the date of the said judgment.
2. Briefly stated, the facts giving rise
to this second appeal are that, Suresh-
Respondent No.1 herein was the original
plaintiff. He filed suit for injunction in
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respect of six acres portion of land on
northern side out of survey No.15 which in all
is admeasuring 35 acres 6 gunthas situated at
village Ibrahimpur, Taluka Bhokardan, District
Jalna. Plaintiff had purchased the said
property for Rs.2000/= by a registered sale
deed dated 8.5.1974 from respondent No.2
(original defendant No.1) who is father of
appellant No.1 and husband of appellant No.2.
Since the purchase of the land, he has been in
possession of the said property. The
appellants and Respondent No. 2 were
disturbing his possession and, therefore, he
filed suit for perpetual injunction.
3. It is necessary to consider the
written statement filed by Respondent No.2
(original defendant No.1) who is father of
appellant No.1 and husband of Respondent No.2
in some detail, as the same throws much light
on the matter. Respondent No. 2 Chunilal in
paragraph 2 of his written statement at Exh.
14, admitted that he is husband of present
appellant No. 2 and father of appellant No.1.
However, he denied that he was Karta of the
family. He further contended that eastern 15
acres land is belonging to and is in
possession of his family and he himself,
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appellant No. 1 and his other sons were owners
thereof. The property was cultivated by his
sons and wife. He had not sold any portion
from survey No.15 on northern side to
Respondent No.1-plaintiff and that the
plaintiff was never in possession of the suit
property. There is a well, so also 13 mango
trees in the northern portion of said 15 acres
land; the land on that side is fertile and its
price is more than Rs.5000 per acre.
Respondent No. 2 further contended in the
written statement that Dr. Gopikishan, the
father of the plaintiff had joint hands with
revenue officers and on the basis of false and
bogus sale deed had got false mutation
entries made in revenue record without notice
to the Defendants. No amount was received by
Respondent No. 2 from the plaintiff and he had
not handed over possession of any land to the
plaintiff.
In paragraph 10 of the written
statement, it is further stated that the
father of Respondent no.1-Plaintiff is running
illegal business in his dispensary, like
gambling by way of Matka and selling
psychotropic drugs. According to Respondent
No. 2, he used to go to the dispensary of the
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Plaintiff’s father and there he was addicted
to gambling. For 8 to 10 years prior to his
written statement dated 4.7.1977, he was not
looking after management of his family nor
doing any work and everything was being looked
after by his wife-appellant No.2. He had not
sold any land. Marriage of his daughter was
performed one year prior to said written
statement which is filed in July 1977.
4.
Appellants herein-original defendant
Nos.2 and 3 filed their written statement at
Exhibit 15 and made out a case that Defendant
No.1 (Respondent No.2 herein) was not the
Karta of the family; that he was addicted to
various vices; the land is in possession of
the appellants; Respondent No.2 had no right
to sell the property and there was no legal
necessity to sell the property. Defendant Nos.
2 and 3 also stated about illegal business run
by the father of Respondent No.1-Plaintiff and
ultimately prayed for dismissal of suit with
compensatory costs.
5. There was absolutely no prayer by way
of counterclaim either by appellants or
Respondent No.2 in their respective written
statements and in spite of that, the trial
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court misled itself into framing issues as to
whether Respondent No. 2 was Karta of the
family; whether he sold the property to
Respondent No.1-Plaintiff for benefit of the
estate. The learned trial Court answered that
Respondent No. 2 was Karta of the family but
held that he had not sold the property as
Karta and the sale was not for benefit of the
estate. There is no issue framed regarding
legal necessity. But, said issue was discussed
at length. In fact, the issues framed were not
necessary for decision of suit for perpetual
injunction in absence of any counter-claim.
Only questions those should have been
considered were whether the plaintiff was in
the settled possession of the suit property
and whether there was obstruction to his
possession by Respondent No.2 and appellants-
original defendants. Though the trial court
answered that the plaintiff was in possession
of the property as owner, it ultimately
directed the plaintiff to handover possession
of the suit property to defendants within
three months from the date of the order.
6. This Second appeal is admitted on
18.1.1991 on ground Nos. 3, 8 and 9 of the
appeal memo which are as follows;
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“3. The learned Judge has wrongly
held that the suit is not based on
title. Whereas the Plaintiff has
stated that he is claiming the relief
of perpetual injunction on the basis
of his title derived by him. As per
law, unless the Plaintiff proves his
title and right to possess, the
Plaintiff cannot succeed in getting
injunction.
8. Admittedly, it is a joint
family property and ancestral property
of the Defendant No. 1 and Defendant
Nos. 2 and 3 and there are other minor
co-parceners, who are jointly in
possession of the property. In such
circumstance, the suit simplicitor for
injunction is not maintainable, since
the property is a undivided property
and a co-parcener can not be clamped
with injunction.
9. The learned Additional
District Judge has failed to see that
the view of our High Court is that a
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purchaser of a share of joint Hindu
family must bring a suit for general
partition and carve out his share,
assuming that the Defendant No. 1 sold
some portion, and the simplicitor suit
of injunction is not maintainable ?”
7. In this case, respondent No.1-
plaintiff has come out with a case that
particular 6 acres portion of land has been
in his possession. According to him, on
earlier day of sale deed, they had gone to the
land, the portion to be sold was demarcated
and handed over to him by respondent No.2.
So, suit for injunction is in respect of
specific portion of land. So, this is not a
case where undivided share/portion of land is
sold by a coparcener of Hindu family to a
stranger.In that light,we have to answer later
two points raised at the time of admission.
8. Shri A.M.Dabir, learned counsel for
Respondent No.1, has taken me through the
judgment of the trial court and more
particularly discussion about issue Nos. 2, 3
and 4 and the final order. To say least, the
order is simply indefensible. It shows hazy
legal notions and confusion of mind. It
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appears from discussion on issue No. 3 that
the trial court did come to the conclusion
that Respondent No.1-Plaintiff was in
possession of the property. The court has
held this on the basis of sale deed, revenue
entries, but appears to have come to a
conclusion that possession is not delivered as
owner as the sale was not for legal necessity
and, therefore, ultimately directed the
plaintiff to hand over possession to the
defendants. Be that as it may.
9. So far as judgment of the Additional
District Judge is concerned, in paragraph 3 of
the judgment, he has come to a conclusion that
the plaintiff has proved his possession over
the suit property which he has purchased and
described as suit property and, therefore, is
entitled to injunction. Shri M.D. Joshi,
learned counsel for appellants herein argued
that no points for determination are framed
and, therefore, judgment of the first
appellate court needs to be set aside. He
relied the case of Khatunbi vs Aminabai 2006
(6) Mh.L.J.759. Paragraph 3 of the judgment
of the District Court reads as follows;
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“3. Whether the Plaintiff proved
his possession and whether he isentitled to the decree for injunction
are the only two points, which (are)
necessary in the Lower Court and inthis Court. I differ with the
findings given by the learned Civil
Judge and hold that Plaintiff provedboth these points and he is entitled
to the decree. The reasons for my
findings are as below. ”
It, therefore, cannot be said that necessary
points were not framed in the appeal against
decree in a suit for perpetual injunction
simplicitor.
10. Learned Counsel for the appellant
cited case of Thimmaiah vs Ningamma (2000)7
SCC 409 and drew my attention to headnote `B’
which relates to Karta’s powers to dispose of
coparcenery property. In present case,
appellants have not challenged sale deed in
favour of Respondent No.1-plaintiff. There is
no declaration prayed by way of counterclaim
or by separate suit regarding sale deed in
favour of plaintiff. There is no occasion to
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consider whether the sale by Respondent No. 2
in favour of Respondent No.1 was for legal
necessity or benefit of the estate. The sale
by a Karta of the family would be at the most
voidable. In any case, Respondent No. 2 was
entitled to sell his undivided share in the
ancestral property. In a suit for perpetual
injunction, we are concerned with whether the
plaintiff was in settled possession of the
property in question as on the date of the
suit and whether there was threat to his
possession at the hands of the defendants.
11. Learned counsel for the appellant relied
upon paragraph No. 26 of the case of Hardeo
Rai vs. Sakuntala Devi (2008)7 SCC 46. In the
said case, sale of undivided share of co-
parcener in joint family property and right
of purchaser were considered and it is laid
down that the coparcenery interest can be
transferred subject to condition that the
purchaser without the consent of other
coparceners cannot get possession of what he
has purchased. In the present matter, it is
the case of Respondent No.1-Plaintiff that he
was actually put in possession of six acres of
land purchased by him. There is a positive
evidence led to that effect and the
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first appellate court has considered the said
evidence and held that the the plaintiff
proved his exclusive possession over the suit
property. So the case of Hardeo Rai (supra)
is not applicable to the facts of the present
case.
12. Here, I may rely on the case of Rame
Gowda v. M. Vardappa Naidu 2004 AIR SCW 4205.
It is held therein that where the plaintiff is
in settled possession of the property, he is
entitled to protect his possession, even
though he failed to prove his ownership or
title. Even a true owner cannot dispossess
such trespasser except otherwise than in due
course of law and grant of injunction was
proper. What is “settled possession” is also
discussed. I may refer to observations of the
Hon’ble Apex Court in paragraph 8 of the
judgment which read as follows:
“8. It is thus clear that so
far as the Indian law is concerned the
person in peaceful possession is
entitled to retain his possession and
in order to protect such possession he
may even use reasonable force to keep
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13who has been wrongfully dispossessed
of land may retake possession if he
can do so peacefully and without theuse of unreasonable force. If the
trespasser is in settled possession of
the property belonging to the rightfulowner, the rightful owner shall have
to take recourse to law; he cannot
take the law in his own hands andevict the trespasser or interfere with
his possession. The law will come to
the aid of a person in peaceful andsettled possession by injuncting even
a rightful owner from using force or
taking law in his own hands, and alsoby restoring him in possession even
from the rightful owner (of course
subject to the law of limitation), ifthe latter has dispossessed the prior
possessor by use of force.”
13. In order to prove possession, the
Plaintiff-Respondent No. 1 examined himself
on oath at Exhibit 95 and stated that by a
sale deed dated 8.5.1974, Respondent No. 2
sold six acres land out of survey No.15 which
was in all admeasuring 35 acres 6 gunthas, for
Rs.2,000/=. He further deposed that the sale
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was effected by Respondent No. 2 as he
(Resp.No.2) needed money for marriage of his
daughter and private work. It is ancestral
property of Respondent No.2. Respondent No.2
was Karta of the joint family. One day prior
to execution of the sale deed, Respondent No.2
took consideration amount and handed over
possession to him. He paid Rs.2,000/= to
Respondent No. 2 at his house and possession
was delivered to him in presence of his
father and witnesses Vithal and Subhash.
After the sale deed, he continued to be in
possession of the property, mutation entry
produced at Exhibit 96 was sanctioned in his
name. He also produced 7 x 12 extract for the
period 1974-75 to 1976-77 at Exhibit 97 to
prove his possession. Plaintiff also produced
revenue receipts showing payment of taxes by
him.
14. In order to show actual possession,
Plaintiff has examined Vithal Pagare as PW-3
at Exhibit 104. PW-3 Vithal deposed that for
7-8 years property was in possession of
plaintiff-Respondent No.1. He could not tell
boundaries. He appears to be a labourer
engaged by Respondent No.1. If the
agricultural labourer could not tell the
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season or month in which he worked in the
field of respondent No.1, that should not be
the reason for disbelieving his evidence.
15. There is evidence of PW-4Subhash
Deshpande at Exh.105 on the point of execution
of agreement of sale, delivery of possession
and execution of sale deed. He stated that on
earlier day, there was agreement of sale at
the house of Respondent No.1-plaintiff. At
that time, Rs.2,000/= were paid to Respondent
No.2 by Respondent No.1. Thereafter, they went
to the land at about 10 am or 11 am.
Respondent No.2 measured the land, Respondent
No. 1 performed the agricultural operations
and thus possession of land was actually
delivered in his presence. This witness has
also signed the sale deed. Besides sale deed,
there are entries in 7×12 extracts regarding
actual possession of plaintiff over the suit
land.
16. On behalf of Defendants, Respondent
No.2-Defendant No.1 is examined as DW-1 at
Exhibit 107. His evidence shows that he has
no regard for the truth. He changed his
version from time to time. In his
examination-in-chief, he deposed that he did
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not execute sale deed in favour of plaintiff –
respondent No.1; he had not taken any
consideration from plaintiff; he was in
possession of the property. In the cross
examination, he stated that he was knowing
father of Respondent No.1 and he had no
concerned with Dr. Gopikishan-the father of
the plaintiff. Witness was confronted with
allegations made by him in the written
statement against father of Respondent No.1,
to which reference is made earlier. Though
Respondent No.2 admitted his signature on the
written statement, he stated that he could not
tell name of the person who told him that Dr.
Gopikishan runs Worli Matka business. He
stated that he had not gone to dispensary or
house of Dr. Gopikishan Purohit, nor he had
seen Dr. Purohit while running Worli Matka.
Thus, here is a witness, who makes wild
allegations against the father of the
plaintiff and then disowns the same.
Thereafter again he said that the contents of
paragraph 10 of his written statement are true
and that his previous statement before the
court was wrong. Then he said that he had not
personally gone to Dr.Gopikishan, but had
demanded tablets from the doctor. Then he
said that he used to play Matka and doctor
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used to accept bets. Respondent No. 2 then
said that he is living jointly with his son.
There was no partition till then. Appellant
No.1 was 15 years old when the sale had taken
place. He used to work in the land. Then he
said that there was no water in the well in
summer. Then he changed and stated that the
sale deed was obtained from him while he was
under influence of liquor. He did not take any
steps for cancellation of the sale deed. He
stated that his son and wife had filed suit
for cancellation of sale deed but that has
been dismissed on 11.2.1981.
17. Respondent No.2 further changed and
stated that he had not sold the land, but it
was mortgaged by him. The mortgage took place
on the Ota of house of Dr. Purohit. He
received Rs.1975/= on the date of agreement.
On next day, he executed sale deed under
influence of liquor. Exhibits 77 (V.P.) and
103 (the sale deed) bear his signatures. He
was not aware if seven years earlier, court
had issued temporary injunction against him.
Respondent No. 2 was thus hiding the truth.
18. At Exhibit 109, there is evidence of
present appellant No. 1 Siddhesing (DW-1) and
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he has deposed that his father was not Karta
of the family, he never cared for the family,
he was addicted to vices and was a drunkard
and used to play cards. He was gambling
matka. According to Siddhesing, his father was
not doing any work and was living at
Bhokardan.
One Phulsing Bhanderwala is examined
at Exhibit 110, so also one Jaikisan Dobhal
at Exhibit 111. They deposed that the suit
land was in possession of appellant No.1 and
prior to 15-16 years, his father (Respondent
No.2) was in possession of the same.
19. On considering the evidence on record,
findings of facts recorded by District Court
and the conclusion by trial court that the
plaintiff was in possession of the property,
in my opinion, this second appeal must fail.
Respondent No.1-plaintiff is entitled to
decree for injunction as he was in actual
settled possession of the suit property as on
the date of filing of the suit. I, therefore,
answer substantial questions of law raised in
this second appeal at the time of admission
of the appeal, against appellants and
Respondent No.2 and in favour of Respondent
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No.1-plaintiff.
20. In the circumstances, second appeal
fails and is dismissed. Appellants to pay
costs to Respondent No.1-plaintiff throughout
and bear their own.
pnd/sa193.90 (P.R.BORKAR, J.)
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