{"id":51612,"date":"2011-01-11T00:00:00","date_gmt":"2011-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/madanlal-pannalal-bhangadiya-vs-pralhad-narayan-atole-on-11-january-2011"},"modified":"2018-03-27T02:11:56","modified_gmt":"2018-03-26T20:41:56","slug":"madanlal-pannalal-bhangadiya-vs-pralhad-narayan-atole-on-11-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/madanlal-pannalal-bhangadiya-vs-pralhad-narayan-atole-on-11-january-2011","title":{"rendered":"Madanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Madanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011<\/div>\n
Bench: R. M. Savant<\/div>\n
                                         1\n\n\n\n\n                                                                               \n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                       \n                SECOND APPEAL Nos. 371 & 396 OF 1994.\n\n                               ************\n\n\n\n\n                                                      \n    SECOND APPEAL No. 371 OF 1994.\n\n\n\n\n                                       \n    Madanlal Pannalal Bhangadiya                      ...           APPELLANT.\n                      \n                                   VERSUS\n                     \n    Pralhad Narayan Atole                             ...            RESPONDENT.\n\n                                 ------------------\n                           None for for Appellant.\n      \n\n\n                 Shri S.A. Mohta, Advocate for Respondent.\n                                ---------------\n   \n\n\n\n                                    W I T H\n\n\n\n\n\n    SECOND APPEAL No. 396 OF 1994.\n\n    Pralhad Narayan Atole                             ...           APPELLANT.\n\n\n\n\n\n                                   VERSUS\n\n    Chandulal Pannalal Bhangadiya                     ...            RESPONDENT.\n\n                                 ------------------\n                   Shri S.A. Mohta, Advocate for Appellant\n                             None for Respondent.\n                                 ---------------\n                                      CORAM : R.M.SAVANT, J.\n<\/pre>\n
                                      DATED   : 11.01.2011.\n<\/p>\n
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\n                                             2<\/span><\/p>\n
    ORAL JUDGMENT.\n<\/p>\n
                 The above Second Appeals arise out of the judgment and <\/p>\n
    decree passed in Regular Civil Appeal No.43\/1992 dated 26.08.1994 <\/p>\n
    (i.e. Second Appeal No. 371\/1994) and judgment and decree passed <\/p>\n
    in Regular Civil Appeal No. 410\/1989 dated 20.08.1994 (i.e. Second <\/p>\n
    Appeal No. 396\/1994).  Since the substantial question of law involved <\/p>\n
    in   the   above   Second   Appeals   are   common   viz.   Construction   of <\/p>\n
    document marked at Exh.76 in Second Appeal No. 371\/1994, both <\/p>\n
    the appeals were tagged together and are therefore, being heard and <\/p>\n
    disposed of by this common judgment.\n<\/p>\n
    2.           The facts in nutshell can be stated thus –\n<\/p>\n
                 Respondent in Second Appeal No. 396\/1994 is the plaintiff <\/p>\n
    in Regular Civil Suit No. 29\/1981.   The appellant in Second Appeal <\/p>\n
    No. 396\/1994 is the plaintiff in Regular Civil Suit No.219\/1982.  Both <\/p>\n
    the suits involve a common property which is a Gadhi i.e.  “description  <\/p>\n
    given to an ancestral property coming down from ages, belonging to a  <\/p>\n
    particular   family   and   the   land   surrounding   the   said   gadhi.”     The <\/p>\n
    plaintiff   Chandulal   in   Regular   Civil   Suit   No.29\/1981     prayed   for <\/p>\n
    declaration of his ownership and confirmation of possession.   The suit <\/p>\n
    property is situated at village Bibi, Taluq Mehkar, District Buldhana.\n<\/p>\n
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\n                                            3<\/span><\/p>\n
    The dispute pertains to the pit situated to the West of his house.   The <\/p>\n
    said pit according to the plaintiff is being used by him for  waste water <\/p>\n
    so as to dump manure in the   ditch.   The house property and the <\/p>\n
    disputed property were described by letters A, B, M, K on the map <\/p>\n
    which was filed along with the suit, as the ancestral property.     It is <\/p>\n
    the case of said Chandulal, that the defendant who owns a fortress to <\/p>\n
    the North of the disputed site i.e. gadhi, obstructed his said user to the <\/p>\n
    pit in the month of January, 1989 and therefore, he filed the said suit <\/p>\n
    for declaration of ownership and perpetual and permanent injunction.\n<\/p>\n
                The plaintiff in  Civil Suit No. 219\/1982 has filed the said <\/p>\n
    suit for declaration of  ownership and possession  of the encroached <\/p>\n
    portion.   The plaintiff Pralhad in the said suit averred that he is the <\/p>\n
    owner of the “gadhi” at village Bibi,  Taluka Lonar and that the said <\/p>\n
    gadhi is, his   ancestral property.     He further averred that he is in <\/p>\n
    possession of that property from his forefathers.  It is further averred <\/p>\n
    that there is a Well surrounding the said gadhi for its protection, and <\/p>\n
    that there is open land upto to 10 cubits surrounding the said Wall.\n<\/p>\n
    The plaintiff Pralhad also filed a map along with the plaint.    It is the <\/p>\n
    case of the plaintiff that the defendant Madanlal, who is brother of <\/p>\n
    Chandulal who is the plaintiff’ in Regular Civil Suit No. 29\/1982, has <\/p>\n
    constructed   his   house   by   encroaching   upon   the   said   premises   two <\/p>\n
    years prior to the filing of the suit i.e. some time in the year 1980.\n<\/p>\n
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\n                                              4<\/span><\/p>\n
    That the defendant was prosecuted under Section 447 of the Indian <\/p>\n
    Penal Code.     The plaintiff Pralhad demanded possession of the suit <\/p>\n
    property   from   the   defendant   in   the   year   1982,   but   the   defendant <\/p>\n
    denied the same, hence the plaintiff was constrained to file the said <\/p>\n
    suit.    The defendant Madanlal in his written statement denied that <\/p>\n
    the   plaintiff   was   having   open   land   upto  10   cubits   surrounding   the <\/p>\n
    gadhi.    It is  his  case  that  the  property  in  his  possession  is  also an <\/p>\n
    ancestral   property   and   that   the   constructed   portion   is   in   existence <\/p>\n
    since the time of his forefathers.     The defendant further contended <\/p>\n
    that in the year 1980 he repaired the property as it required repairs <\/p>\n
    and he had done so,  after obtaining permission of the local authority.\n<\/p>\n
    The   defendant   also   raised   a   plea   as   regards   the   non-joinder   of <\/p>\n
    necessary parties.    It was further his case that the property is in his <\/p>\n
    possession for more than 70 years, therefore, he has became owner by <\/p>\n
    adverse possession.   He therefore, prayed for dismissal of the suit.\n<\/p>\n
    3.           In so far as the Civil Suit No.219\/1982 i.e. the suit filed by <\/p>\n
    Pralhad is concerned, the same was dismissed by the trial Court by its <\/p>\n
    judgment   and   order   dated   30.01.1992,   inter-alia   holding   that   the <\/p>\n
    existence of gadhi at the relevant time could not be made out and, <\/p>\n
    therefore, the plaintiff could not claim 10 cubits land surrounding the <\/p>\n
    said   gadhi.       The   trial   Court   disbelieved   the   evidence   adduced   on <\/p>\n
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\n                                              5<\/span><\/p>\n
    behalf of the plaintiff through his witnesses, on the ground that both <\/p>\n
    the witnesses had admitted that they had not seen the title deed of the <\/p>\n
    property of plaintiff before purchase.   The Trial Court was of the view <\/p>\n
    that the testimony of the said witnesses is not at all useful for the <\/p>\n
    plaintiff to prove his title to the property.\n<\/p>\n
    4.           In so far as the encroachment is concerned, the Trial Court <\/p>\n
    on   the  basis   of  the  evidence   on   record,  held   that  the  plaintiff  had <\/p>\n
    failed   to   prove   that   the   defendant   had   encroached   upon   his   land.\n<\/p>\n
    The Trial Court also held that the  suit  was  bad for non  joinder of <\/p>\n
    necessary parties, as the plaintiff’ has not joined his mother, who was <\/p>\n
    then alive, as a party to the suit.\n<\/p>\n
    5.           Being   aggrieved   by   the   said   judgment   and   order   dated <\/p>\n
    30.01.1992,   the   plaintiff     filed   Regular   Civil   Appeal   No.   43\/1992.\n<\/p>\n
    The   said   Regular   Civil   Appeal   was   allowed   by   the   First   Appellate <\/p>\n
    Court by placing reliance on the document Exh.76 which was in Modi <\/p>\n
    script.   The First Appellate Court observed that after going through <\/p>\n
    the translation of the said document, which is at Exh.84, though a <\/p>\n
    doubt can be raised about the existence of gadhi itself at the time of <\/p>\n
    partition, the First Appellate Court was of the view that the recitals in <\/p>\n
    the document positively go to show that the gadhi was very much in <\/p>\n
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\n                                                6<\/span><\/p>\n
    existence.  The said conclusion was arrived at by the Appellate Court <\/p>\n
    on the  basis  that there  were two Wells in the property and it was <\/p>\n
    stated that one Well was inside the gadhi and the other was outside.\n<\/p>\n
    The trial Court also took into consideration the fact that in some other <\/p>\n
    proceeding, plaintiff”s right over the Well which is outside the gadhi, <\/p>\n
    has   been   endorsed   by   a   Court.       This   fact   according   to   the   First <\/p>\n
    Appellate Court also fortified the case of the plaintiff that the gadhi <\/p>\n
    was in existence and that even some portion outside the said gadhi <\/p>\n
    was   owned   by   him.       The   First   Appellate   Court   considering   the <\/p>\n
    existence of other structures like buruj or bastion which was described <\/p>\n
    in the translation Exh.84 of the document in Modi script, reached to a <\/p>\n
    conclusion that the gadhi was in existence at the time of so called <\/p>\n
    partition.     The First Appellate Court   therefore, on the basis of the <\/p>\n
    said document decreed the suit and resultantly the plaintiff Pralhad <\/p>\n
    was declared owner of the suit property and the defendant Madanlal <\/p>\n
    was   directed   to   deliver   the   vacant   possession   of   the   encroached <\/p>\n
    portion as per the Commissioner’s map to the plaintiff.\n<\/p>\n
    6.           In   so   far   as   the   Suit   No.   29\/1981   filed   by   Chandulal   is <\/p>\n
    concerned, the trial Court was of the view that since the defendant <\/p>\n
    had pleaded that he has become owner by adverse possession, implicit <\/p>\n
    in the said defence was the existence of the ownership of plaintiff over <\/p>\n
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\n                                                7<\/span><\/p>\n
    the  disputed property.    The trial Court on the basis, that the plaintiff <\/p>\n
    has  not produced any document to show that the residential house is <\/p>\n
    his   ancestral   property,   was   of   the   view   that   the   plaintiff   has   not <\/p>\n
    brought any material on record to prove his ownership to the disputed <\/p>\n
    property.       However,   in   so   far   as   the   document   Exh.76   and   its <\/p>\n
    translation   Exh.84   is   concerned,   the   said   document   was   though <\/p>\n
    produced by the defendant, was not exhibited   and was marked as <\/p>\n
    Article   “A”,   as   according   to   the   Trial   Court   Pralhad   who   was   the <\/p>\n
    defendant   in   the   said   suit   had   not   proved   the   said   document   of <\/p>\n
    partition, as per law.   The trial Court also observed that the evidence <\/p>\n
    adduced by the defendant also falls short of his case, however since <\/p>\n
    the initial burden is that of the plaintiff namely Chandulal, which he <\/p>\n
    could not discharge, the trial Court dismissed the said suit filed by <\/p>\n
    Chandulal.\n<\/p>\n
                 Being aggrieved by the same, the plaintiff Chandulal filed <\/p>\n
    Regular Civil Appeal No.10\/1989 which came to be allowed by the <\/p>\n
    First Appellate Court by its judgment and decree dated 20.08.1994.\n<\/p>\n
    The   First   Appellate   Court   in   the   said   Regular   Civil   Appeal <\/p>\n
    No.10\/1989,   held   that   since   it   was   the   defence   of   the   defendant <\/p>\n
    Pralhad in the said suit that he became owner by adverse possession, <\/p>\n
    implicit   in   the   said   defence   is   the   existence   of   ownership   of   the <\/p>\n
    plaintiff over the suit property.    The First Appellate Court was of the <\/p>\n
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\n                                               8<\/span><\/p>\n
    view   that   if,   the   defendant   Pralhad   was   serious   about   his   case   of <\/p>\n
    adverse possession, he could have asked for framing of an issue to <\/p>\n
    that   effect   and   could   have   also   led   evidence   to   show   his   adverse <\/p>\n
    possession.   Since  the  said document  which is  Exh.76 in  Civil  Suit <\/p>\n
    No.219\/1982 was not exhibited, as according to the Trial Court the <\/p>\n
    said   document   was   not   proved   in   accordance   with   law,   the   First <\/p>\n
    Appellate Court held that both the plaintiff and the defendant have <\/p>\n
    not produced cogent documentary evidence to show their title over <\/p>\n
    the disputed property.  But considering the two circumstances which <\/p>\n
    were   in   favour   of   the   plaintiff,   namely   the   defence   of   adverse <\/p>\n
    possession taken by the defendant and the possession of the plaintiff <\/p>\n
    over the suit properties, the First Appellate Court decreed the suit and <\/p>\n
    granted permanent injunction restraining the defendant Pralhad from <\/p>\n
    interfering with the plaintiff’s enjoyment over the disputed pit marked <\/p>\n
    by letters A,B, M, K in the Court Commissioner map.\n<\/p>\n
    7.           As indicated above, both the judgments and decrees passed <\/p>\n
    by the First Appellate Court are the subject matter of above appeals, <\/p>\n
    as mentioned above, the question of law which is common to both the <\/p>\n
    appeals, is as regards the construction of the document at Exh.76.  It <\/p>\n
    has to be borne in mind that so far as Regular Civil Suit No.29\/1981 is <\/p>\n
    concerned,   the   said   document   Exh.76   has   not   been   proved   in <\/p>\n
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\n                                                 9<\/span><\/p>\n
    accordance with law.   As the   first appellate stage also no endeavor <\/p>\n
    was   made   to   prove   the   said   document   by   making   any   application, <\/p>\n
    therefore, in so far as the suit i.e. Regular Civil Suit No.29\/1981 is <\/p>\n
    concerned,   the   same   has   been   decided  dehors  the   said   document, <\/p>\n
    being proved.     In my view, therefore, the construction of the said <\/p>\n
    document though produced in the said suit, but not proved, would not <\/p>\n
    entail   an   adjudication   of   the   question   of   law   framed   in   the   above <\/p>\n
    Second Appeal No.396\/1994.\n<\/p>\n
    8.            In so far as the Second Appeal No. 371\/1994 is concerned, <\/p>\n
    though   the   Trial   Court   has   in   terms   recorded   a   finding   that   the <\/p>\n
    existence   of   the   gadhi   at   the   time   of   partition   is   not   proved,   and <\/p>\n
    therefore,   has   held   that   the   plaintiff   could   not   be   said   to   own   10 <\/p>\n
    cubits   of   land   around   the   said   gadhi.     In   the   appeal,   the   First <\/p>\n
    Appellate   Court   has   gone   threadbare   into   the   recitals   of   the   said <\/p>\n
    document Exh.76, and its translation Exh.84, and recorded a finding <\/p>\n
    that   though   the   said   document   Exh.76     raises   a   doubt   about   the <\/p>\n
    existence   of   the   gadhi   itself   at   the   moment   of   partition,   the   First <\/p>\n
    Appellate   Court   was   of   the   view   that   the   other   recitals   in   the <\/p>\n
    document   positively   go   to   show   that   the   gadhi   was   very   much   in <\/p>\n
    existence, and that since in respect of  one  of the Wells which was <\/p>\n
    outside   the   gadhi,   the   plaintiff”s   right   over   the   same   has   been <\/p>\n
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\n                                                 10<\/span><\/p>\n
    endorsed by a Court in another proceeding.     The existence of the <\/p>\n
    gadhi could not be disputed.   The First Appellate Court also took into <\/p>\n
    consideration   the   recital   in   the   document   Exh.76,   concerning   the <\/p>\n
    position   of   bastion   or     buruj   of   the   said   gadhi,   as   also   the   access <\/p>\n
    mentioned to the said gadhi which according to the First Appellate <\/p>\n
    Court, as reveals in the document, was in existence at the time of the <\/p>\n
    so called partition in Exh.84.   In   my view having perused the said <\/p>\n
    document and its translation Exh.84,   the interpretation of the said <\/p>\n
    document   by   the   First   Appellate   Court   on   the   basis   of   the   recitals <\/p>\n
    therein, cannot be faulted with.     The said recitals in unmistakable <\/p>\n
    terms   point   out   the   existence   of   the   said   gadhi   and   the   Appellate <\/p>\n
    Court   therefore,   has   rightly   held   that   the   plaintiff   had   proved   his <\/p>\n
    ownership to the property in question.    The substantial question of <\/p>\n
    law would therefore, stand answered accordingly in the above Second <\/p>\n
    Appeal No. 371 of 1994..\n<\/p>\n
    9.            In the light of the aforesaid discussion, I do not find any <\/p>\n
    merit in both the Appeals, which are accordingly dismissed with no <\/p>\n
    order as to costs.\n<\/p>\n
                                                                            JUDGE<\/p>\n
    Rgd.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:45:23 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Madanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011 Bench: R. M. Savant 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL Nos. 371 & 396 OF 1994. ************ SECOND APPEAL No. 371 OF 1994. Madanlal Pannalal Bhangadiya … APPELLANT. VERSUS Pralhad Narayan Atole … […]<\/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-51612","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMadanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011 - 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\/madanlal-pannalal-bhangadiya-vs-pralhad-narayan-atole-on-11-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Madanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011 - 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