High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 463 OF 1994Ganpat Rama Gund.VERSUSDattu Rama Gund.WITH CIVIL APPLICATION NO. 8535 OF 2017 IN SA/463/1994Ganpat Rama Gund Lrs Baban Ganpat Gund VERSUSDattu Rama Gund Lrs Namdeo And OthersCORAM: R. M. JOSHI, J.DATE: 13th February, 2025PER COURT :-1.Unsuccessful plaintiff in Regular Civil Suit No. 4/1977 has filedthis appeal under Section 100 of the Code of Civil Procedure takingexception to the dismissal of the suit and confirmation thereof by theFirst Appellate Court in Regular Civil Appeal No. 581/1987.2.Parties are referred to as “Plaintiff” and “Defendant” for thesake of convenience.3. Suit is filed for partition claiming that there was no partitionin respect of the suit property. Though, partition was effected betweenplaintiff and defendant in respect of the other ancestral properties. In thewritten statement, defendant has denied the said contention and claimedthat the suit property is already partitioned and the same has come902-SA-463-1994.odt1 of 6 exclusively to his share.4.Plaintiff, in his evidence, in no uncertain terms, admitted thatthe previous partition between plaintiff and defendant including partitionof the suit property. He, specifically claimed that he received half sharetowards western side, whereas, half share towards eastern side wasallotted to the defendant. Trial Court on the basis of this admission heldthat there was already a partition between the parties and dismissed thesuit.5.First Appellate Court passed the order of dismissal of suithowever recorded findings in paragraph 10 and 11 referred as under:-10.It is pleaded by the plaintiff that suit landwas kept intact and both are brother were jointlycultivating it even after the said partition of theirancestral property. However, there is no satisfactoryevidence on record corroborating the said version of theplaintiff. The plaintiff has placed on record the certifiedcopy of the 7X12 extract of the suit land bearing Gat No.364 of the year 1975-76, Exh 5 to show that the plaintiffand the defendant are having 8 Annas share in it. Itappears that the name of the plaintiff came to berecorded in the 7X12 extract of the suit land at theinstance of the Collector who was moved by the plaintiffas a Military personnal to record his name on the 7X12extract of the suit land. The documents placed at recordExh 28 support the said contention of the plaintiff.However, there is nothing on record to show that thedefendant was heard by the Collector or any RevenueOfficer while effecting entry of the name of the plaintiff902-SA-463-1994.odt2 of 6 in the record of the 7X12 extract of the suit land or onthe Record of Rights of the suit land. There is nothing onrecord to show that the defendant or any body on hisbehalf was heard. On the contrary, it appears that thesaid entry in the Record of Rights of the suit land waseffected by the Collector exparte. It is needless to saythat there is no abstract principle that whereever willappear in the Record of Rights will be presumed to becorrect when it is shown by evidence that the entries arenot correct. It is the evidence of the plaintiff himself thatpartition of their ancestral property took place in theyear 1952-53 and at that time all the property includingthe suit land was partitioned in the said partition. Hewas allotted ½ western portion of the suit land and thedefendant was allotted ½ eastern portion of the suitland. Under such circumstances, the suit land will beactually divided into two parts allotting it to two PotHissaj showing the name of allottee on it. In the instantcase, nothing to that effect is shown on 7X12 extract ofthe suit land. Under such circumstances, the entries ofthe name of the plaintiff and defendant on he suit landas mentioned on its 712 extract exh.5 doesnot inspireconfidence about its correctness. It is the settled law asobserved by Their Lordships of the Supreme Court ofIndia in Sita Ram Bhau patil V/s Ramchandra Nago Patil(dead) By L.Rs. And another reported in A.I.R. 1977SUPREME COURT 1712:“With regard to the record of rights counselfor the appellant said that presumption arises withregard to its correctness. There is no abstract principlethat whatever will appear in the record of rights will bepresumped to be correct when it is shown by evidencethat the entries are not correct. Apart from the intrinsicevidence in the record of rights that they refer to factswhich are untrue it also appears that the record of rightshave reference to the mutation entry that was made by902-SA-463-1994.odt3 of 6 the Circle Officer on 30 January 1956. Counsel for therespondent rightly contended that no presumption couldarise for two principal reasons. First the oral evidence inthis case nullified the entries in the record of rights asshowing a state of affairs opposed to the real state ofaffairs and, second, no notice was ever given to therespondent with regard to mutation proceedings.Therefore, the respondent is right in contending that nopresumption can validly arise from the record of rights”11. In view of the above mentioned authorityplaced at service by the learned counsel for therespondent, I hold that the entry of the name of theplaintiff showing him to be 8 Annas owner of the suitland in the certified copy of the 7X12 extract Exh.5 doesnot appears to be correct in view of the evidence of theplaintiff himself as mentioned above. I therefore,disbelieve and discard the version of the plaintiff on thesaid point, which leads me to record my finding as topoints No.1 and 2 in the negative.6.This Court by order dated 06.12.1994 admitted the appealand substantial question of law was framed on grounds 3 to 7, 8, 13 and15 of the appeal memo.7.This Court framed additional substantial question of law asunder :- “As to whether the Trial Court and the First Appellate Courtcommitted error in practically setting aside review entries in respect ofthe suit property without there being any challenge thereto in the suit.8.Learned counsel for both sides were heard on the point of902-SA-463-1994.odt4 of 6 substantial question of law framed at the stage of admission as well asadditional question framed.9.Learned counsel for the plaintiff submits that the FirstAppellate Court has exceeded its jurisdiction by entering upon thedeciding issue with regard to the correctness of the revenue entries,which is never challenged and otherwise not permissible for the CivilCourt to go into. It is her submission that even defendant has neverraised any issue about the correctness of those entries, however, withoutany pleading or without any case being made out to that effect, FirstAppellate Court has entered upon the said issue and recorded findingthat the entry in the 7X12 extract indicating share of plaintiff anddefendant to the extent of half share each of plaintiff and defendant isdoubtful. According to him, in the circumstances, the said findings arenot tenable.10.Learned counsel for the defendant attempted to convince thisCourt from the said findings on the ground that it was open for the TrialCourt and First Appellate Court to appreciate the evidence and record thefindings of fact afresh.11.Perusal of the pleadings indicate that defendant has neverraised any dispute with regard to the revenue entries in respect of the902-SA-463-1994.odt5 of 6 suit property. Section 157 of the Maharashtra Land Revenue Code, 1966provides for presumption of the correctness of the said entries unless itis shown in the evidence that there are no any order to enter upon suchcontroversy, there has to be a pleading and challenge to the entries atfirst instance. Since, admittedly, no pleading is taken in writtenstatement and has not challenged to the said entry, the findings recordedby the Trial Court as well as the First Appellate Court in this regardcannot sustain. As a result of this discussion, substantial question of lawneeds to be answered in affirmative.12.As far as dismissal of the suit as well as appeal on merit ofplaintiff’s case for suit for partition is concerned, from the admissions ofplaintiff about previous partition and allotment of separate share to bothparties, no interference is called therein. Hence, second appeal standspartly allowed. Though the final judgment and decree passed by the TrialCourt and confirmed by the First Appellate Court of dismissal of suit ismaintained. However, findings recorded in respect of the entries in 7X12extract of the suit property are hereby set aside.13.Appeal stands partly allowed in above terms. Pending CivilApplication, if any, stands disposed of.(R. M. JOSHI, J.)bsj902-SA-463-1994.odt6 of 6