{"id":228808,"date":"2009-07-10T00:00:00","date_gmt":"2009-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/siddhi-vs-suresh-on-10-july-2009"},"modified":"2015-11-21T01:33:05","modified_gmt":"2015-11-20T20:03:05","slug":"siddhi-vs-suresh-on-10-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/siddhi-vs-suresh-on-10-july-2009","title":{"rendered":"Siddhi vs Suresh on 10 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Siddhi vs Suresh on 10 July, 2009<\/div>\n
Bench: P. R. Borkar<\/div>\n
                                1\n\n\n\n\n                                                               \n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY \n\n\n\n\n                                       \n                       BENCH AT AURANGABAD\n\n\n                 Second Appeal No.193 of 1990\n\n\n\n\n                                      \n     1.   Siddhi s\/o Chunilal Daubhal\n\n\n\n\n                             \n          age major, occupation  agril.\n          r\/of Ibrahimpur, Taluka \n                  \n          Bhokardan (District Jalna)\n                 \n     2.   Kasabai Chunilal Daubhal,\n          age 67 years, occup.household\n          r\/of Ibrahimpur, Taluka          ..Appellants\/\n      \n\n\n          Bhokardan.                             ori.defts.\n   \n\n\n\n                                                 No. 2 and 3.\n                   versus\n\n\n\n\n\n     1.   Suresh s\/o Gopikishan Prohit\n          age major, occup. agriculture\n          r\/of Bhokardan, Dist. Jalna.\n\n\n\n\n\n     2.   Chunilal s\/o Lukha Daubhal,\n          age major, occup. agriculture,        ..Respondents\/\n          r\/of Ibrahimpur, Tq.Bhokardan         ..Resp.No.1 is\n                                                  orig.pltff.&\n                                                  Resp.No.2 is\n                                                  ori.deft.No.\n                                                   2.\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 14:46:34 :::\n                                  2\n\n     Shri M.D. Joshi, Advocate, for the appellants.\n     Shri A.M.Dabir, Advocate, for Respondent No.1.\n\n\n\n\n                                                                 \n                                         \n                           CORAM:  P.R.BORKAR,  J.\n<\/pre>\n
                            Judgment reserved   on  6.7.2009
\n                           Judgment pronounced on 10.7.2009<\/p>\n
      JUDGMENT.\n<\/p>\n
     1.        This   is   a   second   appeal   filed   by <\/p>\n
     original   defendant   Nos.   2   and   3   being <\/p>\n
     aggrieved by the judgment and decree passed by
\n     the   Additional   District   Judge,   Jalna   in <\/p>\n
     Regular Civil Appeal No.191 of 1983 decided on
\n     6.3.1990, whereby the judgment and decree   of
\n     the trial court (Civil Judge, Junior Division, <\/p>\n
     Bhokardan)   in   Regular   Civil   Suit   No.   16   of <\/p>\n
     1977   decided   on   14.9.1983   was   reversed   and
\n     suit   of   Respondent   No.1-Plaintiff   for
\n     injunction   was   allowed.     The   trial   court   had <\/p>\n
     not  only   dismissed   the   suit,   but   even   in   the
\n     absence   of   Cross   Objections,     directed   the
\n     plaintiff   to   handover   possession   of   suit <\/p>\n
     property to the Defendants within three months
\n     from the date of the said judgment.\n<\/p>\n
     2.        Briefly stated, the facts giving rise
\n     to   this   second   appeal   are   that,   Suresh-
\n     Respondent   No.1   herein   was   the   original
\n     plaintiff.   He   filed   suit   for   injunction   in <\/p>\n
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\n                                  3<\/span><\/p>\n
     respect   of   six   acres   portion   of   land   on <\/p>\n
     northern side out of survey No.15 which in all
\n     is  admeasuring 35 acres 6 gunthas situated at <\/p>\n
     village Ibrahimpur, Taluka Bhokardan, District
\n     Jalna.   Plaintiff   had   purchased   the   said
\n     property   for   Rs.2000\/=   by   a   registered   sale <\/p>\n
     deed   dated   8.5.1974   from   respondent   No.2
\n     (original   defendant   No.1)   who   is   father   of
\n     appellant No.1 and husband of appellant No.2.\n<\/p>\n
     Since the purchase of the land, he has been in <\/p>\n
     possession   of   the   said   property.     The
\n     appellants   and   Respondent   No.   2   were <\/p>\n
     disturbing   his   possession   and,   therefore,   he
\n     filed suit for perpetual injunction.\n<\/p>\n
     3.        It   is     necessary   to   consider   the <\/p>\n
     written   statement   filed   by   Respondent   No.2
\n     (original   defendant   No.1)   who   is     father   of <\/p>\n
     appellant No.1 and husband of Respondent No.2
\n     in some detail, as the same throws much light
\n     on   the   matter.    Respondent   No.   2   Chunilal   in
\n     paragraph   2   of   his   written   statement   at   Exh.\n<\/p>\n
     14,   admitted     that   he   is   husband   of   present
\n     appellant No. 2 and father of appellant No.1.
\n     However,   he   denied   that   he   was   Karta   of   the
\n     family.   He further contended that eastern 15
\n     acres   land   is   belonging   to   and   is     in
\n     possession   of   his   family       and   he   himself, <\/p>\n
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\n                                   4<\/span><\/p>\n
     appellant No. 1 and his other sons were owners <\/p>\n
     thereof.     The   property   was   cultivated   by   his
\n     sons   and   wife.     He   had   not   sold   any   portion <\/p>\n
     from   survey   No.15   on   northern   side   to
\n     Respondent   No.1-plaintiff   and   that   the
\n     plaintiff was never in possession of the suit <\/p>\n
     property.  There is a well, so  also  13 mango
\n     trees in the northern portion of said 15 acres
\n     land; the land on that side is fertile and its <\/p>\n
     price   is   more   than   Rs.5000   per   acre.\n<\/p>\n
     Respondent   No.   2   further   contended   in   the
\n     written   statement   that   Dr.   Gopikishan,   the <\/p>\n
     father   of   the   plaintiff   had   joint   hands   with
\n     revenue officers and on the basis of false and
\n     bogus   sale   deed     had   got   false   mutation <\/p>\n
     entries made in revenue record  without notice <\/p>\n
     to the Defendants.   No amount was received by
\n     Respondent No. 2 from the plaintiff and he had <\/p>\n
     not handed over possession of any land to the
\n     plaintiff.\n<\/p>\n
               In   paragraph   10   of   the   written <\/p>\n
     statement,   it   is   further   stated   that   the
\n     father of Respondent no.1-Plaintiff is running
\n     illegal   business   in   his   dispensary,   like
\n     gambling   by   way   of   Matka   and   selling
\n     psychotropic   drugs.   According   to   Respondent
\n     No. 2, he used to go to the dispensary of the <\/p>\n
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\n                                   5<\/span><\/p>\n
     Plaintiff’s   father   and   there   he   was   addicted <\/p>\n
     to gambling.   For 8 to 10 years prior to his
\n     written   statement   dated   4.7.1977,   he   was   not <\/p>\n
     looking   after   management   of   his   family   nor
\n     doing any work and everything was being looked
\n     after   by   his   wife-appellant   No.2.   He   had   not <\/p>\n
     sold   any   land.    Marriage   of  his  daughter   was
\n     performed   one   year   prior   to     said   written
\n     statement which is filed in July 1977.\n<\/p>\n
     4.<\/p>\n
                 Appellants   herein-original   defendant
\n     Nos.2   and   3   filed   their   written   statement   at <\/p>\n
     Exhibit 15 and made out  a case that Defendant
\n     No.1   (Respondent   No.2   herein)   was   not   the
\n     Karta   of   the   family;   that   he   was   addicted   to <\/p>\n
     various   vices;   the   land   is   in   possession   of <\/p>\n
     the   appellants;   Respondent   No.2   had   no   right
\n     to   sell   the   property   and   there   was   no   legal <\/p>\n
     necessity to sell the property. Defendant Nos.
\n     2 and 3 also stated about illegal business run
\n     by the father of Respondent No.1-Plaintiff and
\n     ultimately   prayed   for   dismissal   of   suit   with <\/p>\n
     compensatory costs.\n<\/p>\n
     5.        There was absolutely  no prayer by way
\n     of   counterclaim   either   by   appellants   or
\n     Respondent   No.2   in   their   respective   written
\n     statements   and   in   spite   of   that,   the   trial <\/p>\n
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\n                                   6<\/span><\/p>\n
     court misled itself into framing issues as to <\/p>\n
     whether   Respondent   No.   2   was   Karta   of   the
\n     family;   whether   he   sold   the   property   to <\/p>\n
     Respondent   No.1-Plaintiff   for   benefit   of   the
\n     estate.  The learned trial Court answered that
\n     Respondent   No.   2   was   Karta   of   the   family   but <\/p>\n
     held   that   he   had     not   sold   the   property   as
\n     Karta and the sale was not for benefit of the
\n     estate.     There   is   no   issue   framed   regarding <\/p>\n
     legal necessity. But, said issue was discussed <\/p>\n
     at length. In fact, the issues framed were not
\n     necessary for decision   of suit for perpetual <\/p>\n
     injunction   in   absence   of   any     counter-claim.
\n     Only   questions   those   should   have   been
\n     considered   were   whether   the   plaintiff   was   in <\/p>\n
     the     settled   possession   of   the   suit   property <\/p>\n
     and   whether   there   was   obstruction   to   his
\n     possession   by   Respondent   No.2   and   appellants-\n<\/p>\n
     original   defendants.     Though   the   trial   court
\n     answered that the plaintiff was in possession
\n     of   the   property   as   owner,   it   ultimately
\n     directed   the   plaintiff   to   handover   possession <\/p>\n
     of   the   suit   property   to   defendants   within
\n     three months from the date of the order.\n<\/p>\n
     6.        This   Second   appeal   is   admitted   on
\n     18.1.1991   on   ground   Nos.   3,   8   and   9   of   the
\n     appeal memo which are as follows;\n<\/p>\n
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\n                           7<\/span><\/p>\n
           “3. The learned Judge has wrongly <\/p>\n
      held   that   the   suit   is   not   based   on
\n      title.     Whereas   the   Plaintiff   has
\n      stated that he is claiming the relief <\/p>\n
      of   perpetual   injunction   on   the   basis
\n      of his title derived by him.   As per
\n      law,   unless   the   Plaintiff   proves   his <\/p>\n
      title   and   right   to   possess,   the <\/p>\n
      Plaintiff   cannot   succeed   in   getting
\n      injunction.\n<\/p>\n
           8.   Admittedly,   it   is   a   joint
\n      family property and ancestral property <\/p>\n
      of   the   Defendant   No.   1   and   Defendant <\/p>\n
      Nos. 2 and 3 and there are other minor
\n      co-parceners,   who   are   jointly   in <\/p>\n
      possession   of   the   property.   In   such
\n      circumstance, the suit simplicitor for
\n      injunction   is  not  maintainable,  since
\n      the property is a undivided   property <\/p>\n
      and   a   co-parcener   can   not   be   clamped
\n      with injunction.\n<\/p>\n
           9.   The           learned             Additional
\n      District Judge has failed to see that
\n      the view of our High Court is that a <\/p>\n
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\n                                  8<\/span><\/p>\n
               purchaser   of   a   share   of   joint   Hindu <\/p>\n
               family   must   bring   a   suit   for   general
\n               partition   and   carve   out   his   share, <\/p>\n
               assuming that the Defendant No. 1 sold
\n               some portion, and the simplicitor suit
\n               of injunction is not maintainable ?”\n<\/p>\n
     7.        In   this   case,   respondent   No.1-
\n     plaintiff   has   come   out   with   a   case   that <\/p>\n
     particular   6 acres portion of   land has been <\/p>\n
     in   his   possession.     According   to   him,   on
\n     earlier day of sale deed, they had gone to the <\/p>\n
     land,   the   portion     to   be   sold   was   demarcated
\n     and   handed   over   to   him   by   respondent   No.2.
\n     So,   suit   for   injunction   is   in   respect   of <\/p>\n
     specific   portion   of   land.   So,   this   is   not   a <\/p>\n
     case where undivided share\/portion of land is
\n     sold   by   a   coparcener   of   Hindu   family   to   a <\/p>\n
     stranger.In that light,we have to answer later
\n     two points raised at the time of admission.\n<\/p>\n
     8.        Shri   A.M.Dabir,     learned   counsel   for <\/p>\n
     Respondent   No.1,   has   taken   me   through   the
\n     judgment   of   the   trial   court   and   more
\n     particularly discussion about issue Nos. 2, 3 <\/span>
\n     and 4 and the final order.   To say least, the
\n     order   is   simply   indefensible.   It   shows   hazy
\n     legal   notions   and   confusion   of   mind.       It <\/p>\n
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\n                                   9<\/span><\/p>\n
     appears   from   discussion   on   issue   No.   3   that <\/p>\n
     the   trial   court   did   come   to   the   conclusion
\n     that   Respondent   No.1-Plaintiff   was   in <\/p>\n
     possession   of   the   property.     The   court   has
\n     held   this   on   the   basis   of   sale   deed,   revenue
\n     entries,   but   appears   to   have   come   to   a <\/p>\n
     conclusion that possession is not delivered as
\n     owner as the sale was not for legal necessity
\n     and,   therefore,   ultimately   directed   the <\/p>\n
     plaintiff   to   hand   over   possession   to   the <\/p>\n
     defendants.  Be that as it may.\n<\/p>\n
     9.        So   far   as   judgment   of   the   Additional
\n     District Judge is concerned, in paragraph 3 of
\n     the judgment, he has come to a conclusion that <\/p>\n
     the   plaintiff   has   proved   his   possession   over <\/p>\n
     the   suit   property   which   he   has   purchased   and
\n     described as suit property and, therefore, is <\/p>\n
     entitled   to   injunction.     Shri   M.D.   Joshi,
\n     learned   counsel   for   appellants   herein   argued
\n     that   no   points   for   determination   are   framed
\n     and,   therefore,   judgment   of   the   first <\/p>\n
     appellate   court   needs   to   be   set   aside.     He
\n     relied   the   case  of   Khatunbi   vs   Aminabai   2006
\n     (6)   Mh.L.J.759.     Paragraph   3   of   the   judgment
\n     of the District Court reads as follows;\n<\/p>\n
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\n                                  10<\/span><\/p>\n
                    “3. Whether   the   Plaintiff   proved
\n               his   possession   and   whether   he   is <\/p>\n
               entitled to the decree for injunction
\n               are   the   only   two   points,   which   (are)
\n               necessary   in   the   Lower   Court   and   in <\/p>\n
               this   Court.     I   differ   with   the
\n               findings   given   by   the   learned   Civil
\n               Judge   and   hold   that   Plaintiff   proved <\/p>\n
               both   these   points   and   he   is   entitled <\/p>\n
               to   the   decree.     The   reasons   for   my
\n               findings are as below. ”\n<\/p><\/blockquote>\n
     It,   therefore,   cannot   be   said   that   necessary
\n     points   were   not   framed   in   the   appeal   against <\/p>\n
     decree   in   a     suit   for   perpetual     injunction <\/p>\n
     simplicitor.\n<\/p>\n
     10.         Learned   Counsel   for   the   appellant
\n     cited   case   of  Thimmaiah   vs   Ningamma<\/a>   (2000)7
\n     SCC 409  and drew my attention to headnote `B’
\n     which relates to Karta’s powers to dispose of <\/p>\n
     coparcenery   property.     In   present   case,
\n     appellants   have   not   challenged   sale   deed   in
\n     favour   of   Respondent   No.1-plaintiff.   There   is
\n     no   declaration   prayed   by   way   of   counterclaim
\n     or   by     separate   suit   regarding   sale   deed   in
\n     favour of plaintiff.  There is  no occasion to <\/p>\n
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\n                                  11<\/span><\/p>\n
     consider whether the sale by Respondent No. 2 <\/span><\/p>\n
     in   favour   of   Respondent   No.1     was   for   legal
\n     necessity or benefit of the estate.   The sale <\/p>\n
     by a Karta of the family would be at the most
\n     voidable.     In   any   case,  Respondent   No.   2   was
\n     entitled   to   sell   his   undivided   share   in   the <\/p>\n
     ancestral   property.     In   a   suit   for   perpetual
\n     injunction, we are concerned with whether the
\n     plaintiff   was   in   settled   possession   of   the <\/p>\n
     property   in   question   as   on   the   date   of   the <\/p>\n
     suit   and   whether   there   was   threat   to   his
\n     possession at the hands of the defendants.\n<\/p>\n
     11.   Learned counsel for the appellant relied
\n     upon   paragraph   No.   26   of   the   case   of  Hardeo <\/p>\n
     Rai vs. Sakuntala Devi<\/a> (2008)7 SCC 46.  In the <\/p>\n
     said   case,     sale   of   undivided   share   of   co-
\n     parcener     in   joint   family   property   and   right <\/p>\n
     of   purchaser   were   considered   and   it   is   laid
\n     down   that   the   coparcenery   interest   can   be
\n     transferred   subject   to   condition   that   the
\n     purchaser   without   the     consent   of   other <\/p>\n
     coparceners   cannot   get   possession   of   what   he
\n     has  purchased.    In   the   present   matter,   it   is
\n     the case of Respondent No.1-Plaintiff that he
\n     was actually put in possession of six acres of
\n     land   purchased   by   him.     There   is   a   positive
\n     evidence   led       to   that     effect     and     the <\/p>\n
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\n                                  12<\/span><\/p>\n
     first appellate court has considered the said <\/p>\n
     evidence   and   held   that   the   the   plaintiff
\n     proved his exclusive possession over the suit <\/p>\n
     property.     So   the   case   of   Hardeo   Rai  (supra)
\n     is not applicable to the facts of the present
\n     case.\n<\/p>\n
     12.       Here, I may rely on the case of  Rame <\/p>\n
     Gowda v. M. Vardappa Naidu 2004 AIR SCW 4205.
\n     It is held therein that where the plaintiff is <\/p>\n
     in   settled   possession   of   the   property,   he   is
\n     entitled   to   protect   his   possession,   even <\/p>\n
     though   he   failed   to   prove   his   ownership   or
\n     title.     Even   a   true   owner   cannot   dispossess
\n     such   trespasser   except   otherwise   than   in   due <\/p>\n
     course   of   law   and   grant   of   injunction   was <\/p>\n
     proper.  What is “settled possession”  is also
\n     discussed.  I may refer to observations of the <\/p>\n
     Hon’ble   Apex   Court   in   paragraph   8   of   the
\n     judgment which read as follows:\n<\/p>\n
                         “8. It   is  thus   clear   that  so <\/p>\n
               far as the Indian law is concerned the
\n               person   in   peaceful   possession   is
\n               entitled to retain his possession and
\n               in order to protect such possession he
\n               may even use reasonable force to keep
\n               out a  trespasser.      A  rightful  owner <\/p>\n
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\n                                  13<\/span><\/p>\n
               who   has   been   wrongfully   dispossessed <\/p>\n
               of   land   may   retake   possession   if   he
\n               can   do   so   peacefully   and   without   the <\/p>\n
               use   of   unreasonable   force.     If   the
\n               trespasser is in settled possession of
\n               the property belonging to the rightful <\/p>\n
               owner,   the   rightful   owner   shall   have
\n               to   take   recourse   to   law;   he   cannot
\n               take   the   law   in   his   own   hands   and <\/p>\n
               evict the trespasser or interfere with <\/p>\n
               his possession.   The law will come to
\n               the   aid   of   a   person   in   peaceful   and <\/p>\n
               settled  possession  by  injuncting   even
\n               a   rightful   owner   from   using   force   or
\n               taking law in his own hands, and also <\/p>\n
               by   restoring   him   in   possession   even <\/p>\n
               from   the   rightful   owner   (of   course
\n               subject to the law of limitation), if <\/p>\n
               the latter has dispossessed the prior
\n               possessor by use of force.”\n<\/p><\/blockquote>\n
     13.       In   order   to   prove   possession,   the <\/p>\n
     Plaintiff-Respondent   No.   1   examined   himself
\n     on   oath   at   Exhibit   95   and   stated   that   by   a
\n     sale   deed   dated   8.5.1974,   Respondent   No.   2 <\/span>
\n     sold six acres land out of survey No.15 which
\n     was in all admeasuring 35 acres 6 gunthas, for
\n     Rs.2,000\/=.   He further deposed that the sale <\/p>\n
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\n                                  14<\/span><\/p>\n
     was   effected   by   Respondent   No.   2   as   he <\/p>\n
     (Resp.No.2)   needed   money   for   marriage   of   his
\n     daughter   and   private   work.   It   is   ancestral <\/p>\n
     property   of   Respondent   No.2.   Respondent   No.2
\n     was Karta of the joint family.   One day prior
\n     to execution of the sale deed, Respondent No.2 <\/p>\n
     took   consideration   amount   and   handed   over
\n     possession   to   him.     He   paid   Rs.2,000\/=   to
\n     Respondent   No.   2   at   his   house   and   possession <\/p>\n
     was     delivered   to   him   in   presence   of   his <\/p>\n
     father     and   witnesses   Vithal   and   Subhash.
\n     After   the   sale   deed,   he   continued   to   be   in <\/p>\n
     possession   of   the   property,   mutation   entry
\n     produced   at   Exhibit   96   was   sanctioned   in   his
\n     name.  He also produced 7 x 12 extract for the <\/p>\n
     period   1974-75   to   1976-77   at   Exhibit   97   to <\/p>\n
     prove his possession.  Plaintiff also produced
\n     revenue   receipts   showing   payment   of   taxes   by <\/p>\n
     him.\n<\/p>\n
     14.         In order to show actual   possession,
\n     Plaintiff   has   examined   Vithal   Pagare   as   PW-3 <\/p>\n
     at   Exhibit   104.   PW-3   Vithal   deposed   that   for
\n     7-8   years   property   was   in   possession   of
\n     plaintiff-Respondent   No.1.   He   could   not   tell
\n     boundaries.     He   appears   to   be   a   labourer
\n     engaged   by   Respondent   No.1.                    If   the
\n     agricultural   labourer   could   not   tell   the <\/p>\n
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\n                                  15<\/span><\/p>\n
     season   or   month   in   which   he   worked   in   the <\/p>\n
     field   of   respondent   No.1,   that   should   not   be
\n     the reason for disbelieving his evidence.\n<\/p>\n
     15.       There   is   evidence   of   PW-4Subhash
\n     Deshpande at Exh.105 on the point of execution <\/p>\n
     of   agreement   of   sale,   delivery   of   possession
\n     and execution of sale deed. He stated that on
\n     earlier   day,   there   was   agreement   of   sale   at <\/p>\n
     the   house   of   Respondent   No.1-plaintiff.     At <\/p>\n
     that time, Rs.2,000\/= were paid to Respondent
\n     No.2 by Respondent No.1. Thereafter, they went <\/p>\n
     to   the   land   at   about   10   am   or   11   am.\n<\/p>\n
     Respondent   No.2   measured   the   land,   Respondent
\n     No.   1   performed   the   agricultural   operations <\/p>\n
     and   thus   possession   of   land   was   actually <\/p>\n
     delivered   in   his   presence.     This   witness   has
\n     also signed the sale deed.  Besides sale deed, <\/p>\n
     there   are   entries   in   7×12   extracts   regarding
\n     actual   possession   of   plaintiff   over   the   suit
\n     land.\n<\/p>\n
     16.       On   behalf   of   Defendants,   Respondent
\n     No.2-Defendant   No.1   is   examined   as   DW-1   at
\n     Exhibit 107.   His evidence shows that   he has
\n     no   regard   for   the   truth.     He   changed   his
\n     version     from   time   to   time.     In   his
\n     examination-in-chief,   he   deposed   that   he   did <\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:46:34 :::<\/span>
\n                                  16<\/span><\/p>\n
     not execute sale deed in favour of plaintiff –\n<\/p>\n
     respondent   No.1;   he   had   not   taken   any
\n     consideration   from   plaintiff;   he   was   in <\/p>\n
     possession   of   the   property.     In   the   cross
\n     examination,   he   stated   that   he   was   knowing
\n     father   of   Respondent   No.1   and   he   had   no <\/p>\n
     concerned   with   Dr.   Gopikishan-the   father   of
\n     the   plaintiff.     Witness   was   confronted   with
\n     allegations   made   by   him   in   the   written <\/p>\n
     statement   against   father   of   Respondent   No.1, <\/p>\n
     to   which   reference   is   made   earlier.     Though
\n     Respondent No.2 admitted his signature on the <\/p>\n
     written statement, he stated that he could not
\n     tell name of the person who told him that Dr.
\n     Gopikishan   runs   Worli   Matka   business.     He <\/p>\n
     stated   that  he   had   not   gone  to   dispensary   or <\/p>\n
     house   of   Dr.   Gopikishan   Purohit,   nor   he   had
\n     seen   Dr.   Purohit   while   running   Worli   Matka.\n<\/p>\n
     Thus,   here   is   a   witness,   who   makes   wild
\n     allegations   against   the   father   of   the
\n     plaintiff   and   then   disowns   the   same.
\n     Thereafter again he said  that the contents of <\/p>\n
     paragraph 10 of his written statement are true
\n     and   that   his   previous   statement   before   the
\n     court was wrong.  Then he said that he had not
\n     personally   gone   to   Dr.Gopikishan,   but   had
\n     demanded   tablets   from   the   doctor.     Then   he
\n     said   that   he   used   to   play   Matka   and   doctor <\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:46:34 :::<\/span>
\n                                  17<\/span><\/p>\n
     used   to   accept   bets.   Respondent   No.   2   then <\/p>\n
     said that he is living jointly   with his son.
\n     There   was   no   partition   till   then.     Appellant <\/p>\n
     No.1  was 15 years old when the sale had taken
\n     place. He used to work in the land.   Then he
\n     said that there was no water in the well   in <\/p>\n
     summer.     Then   he   changed   and   stated  that   the
\n     sale   deed   was   obtained   from  him  while   he   was
\n     under influence of liquor. He did not take any <\/p>\n
     steps for cancellation   of the sale deed.   He <\/p>\n
     stated   that his son and wife had filed suit
\n     for   cancellation   of   sale   deed   but   that   has <\/p>\n
     been  dismissed on 11.2.1981.\n<\/p>\n
     17.       Respondent   No.2     further   changed   and <\/p>\n
     stated that he had not sold the land, but it <\/p>\n
     was mortgaged by him.  The mortgage took place
\n     on   the   Ota   of   house   of   Dr.   Purohit.     He <\/p>\n
     received   Rs.1975\/=   on   the   date   of   agreement.
\n     On   next   day,   he   executed   sale   deed   under
\n     influence   of   liquor.     Exhibits   77   (V.P.)   and
\n     103  (the   sale   deed)  bear   his   signatures.     He <\/p>\n
     was  not  aware   if     seven  years   earlier,   court
\n     had   issued   temporary   injunction   against   him.
\n     Respondent No. 2 was thus hiding the  truth.\n<\/p>\n
     18.       At   Exhibit   109,   there   is   evidence   of
\n     present appellant No. 1 Siddhesing (DW-1) and <\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:46:34 :::<\/span>
\n                                  18<\/span><\/p>\n
     he   has   deposed   that  his  father   was   not   Karta <\/p>\n
     of the family, he never cared for the family,
\n     he   was   addicted   to   vices   and   was   a   drunkard <\/p>\n
     and   used   to   play   cards.     He   was   gambling
\n     matka. According to Siddhesing, his father was
\n     not   doing   any   work   and   was   living   at <\/p>\n
     Bhokardan.\n<\/p>\n
               One   Phulsing   Bhanderwala   is   examined <\/p>\n
     at   Exhibit   110,   so   also   one   Jaikisan   Dobhal <\/p>\n
     at   Exhibit   111.   They   deposed   that   the   suit
\n     land   was   in   possession   of   appellant   No.1   and <\/p>\n
     prior   to   15-16   years,   his   father   (Respondent
\n     No.2) was in possession of the same.\n<\/p>\n
     19.       On considering the evidence on record, <\/p>\n
     findings   of   facts   recorded   by   District   Court
\n     and   the   conclusion   by   trial   court   that   the <\/p>\n
     plaintiff   was   in   possession   of   the   property,
\n     in   my   opinion,   this   second   appeal   must   fail.
\n     Respondent   No.1-plaintiff   is   entitled   to
\n     decree   for   injunction   as   he   was   in   actual <\/p>\n
     settled possession of the suit property as on
\n     the date of filing of the suit.  I, therefore,
\n     answer substantial questions of law raised in
\n     this   second  appeal    at   the   time  of   admission
\n     of   the   appeal,   against   appellants   and
\n     Respondent   No.2   and   in   favour   of   Respondent <\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:46:34 :::<\/span>
\n                                19<\/span><\/p>\n
     No.1-plaintiff.\n<\/p>\n
     20.      In   the   circumstances,   second   appeal <\/p>\n
     fails   and   is   dismissed.     Appellants   to   pay
\n     costs   to   Respondent   No.1-plaintiff   throughout
\n     and bear their own.\n<\/p>\n
     pnd\/sa193.90                      (P.R.BORKAR, J.)<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:46:34 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Siddhi vs Suresh on 10 July, 2009 Bench: P. R. Borkar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-228808","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSiddhi vs Suresh on 10 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/siddhi-vs-suresh-on-10-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Siddhi vs Suresh on 10 July, 2009 - 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