Mr. Narwade Vinayak P, andMrs.Manjushri v. Narwade
Case Details
1 921sa901.16 Ord. or Judg.IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD921 SECOND APPEAL NO. 901 OF 2016WITHCIVIL APPLICATION NO. 16621 OF 2016 IN SA/901/2016SAU. SOJABAI MOTIRAM PATILVERSUSSAU. AHSA PRADEEP JAKHETE...Advocate for Appellant : Mr. Narwade Vinayak P, andMrs.Manjushri V. Narwade... CORAM : KISHORE C. SANT, J. DATE : 02nd AUGUST, 2024. PER COURT : 1.Heard the appellants.2.This appeal is circulated just a day before, when nextdate the matter is fixed by the Executing Court on 03.08.2024for issuance of possession warrant. The appeal is of 2016. Itappears that no attempt was made to get the appeal circulated.The first date appears to be of 13.12.2023. On that date a timewas sought on the ground of personal difficulty and the same
Legal Reasoning
2 921sa901.16 Ord. or Judg.was adjourned on 16.01.2024. On 16.01.2024 again the matterwas adjourned at the request of the appellant by way of a lastchance. It was adjourned on 13.02.2024. On that date thematter was mentioned out of turn and time was sought till12.03.2024. On 12.03.2024, this Court was pleased to call forrecord and the proceedings and the matter was adjourned on02.04.2024. However, since the record and proceedings wasawaited nothing could be done on that date. However, therecord and proceedings is received in the month of May, 2024.On 12.07.2024 the appeal was again circulate for today andnow the appeal is on board.3.The appeal is vehemently argued by the learnedAdvocate for the appellant.4.The facts in short are that the plaintiff/respondent inthis appeal executed a sale deed in favour of theappellant/original defendant. It is the case of the plaintiff thatshe is owner and possessor of the land plot No.13 ad-measuring192 sq. mtrs. from Gut No. 62/3A from Khedi (Bk.) Taluka andDistrict Jalgaon. She purchased the said land from one 3 921sa901.16 Ord. or Judg.Udaychand Katariya on 13.01.1986. She has never sold herland, however, she found lateron that on 01.07.1997 a revenueentry was taken in respect of the said land in the name of thedefendant by showing that the same is purchased by her by wayof a sale deed. The plaintiff therefore filed a suit stating thatshe has never executed the sale deed in favour of the defendant.The defendant is in habit to get the sale deeds executed in herfavour by presenting dummy person before the Registrar ofLand Records. The husband of the plaintiff therefore lodged apolice complaint against the defendant and others. The learnedAdvocate for the appellant has given the details about thepresent position of the Criminal Case bearing No. 429 of 1998.The plaintiff thus, filed a suit for possession and declarationthat the sale deed is bogus and not accepted by the authority.5.It is the defence of the defendant that she haspurchased the land from the plaintiff for the consideration of Rs.22,000/-. Thereafter, she became the owner of the plot on thebasis of sale deed and prayed for dismissal of the suit.6.The trial Court i.e. 2nd joint Civil Judge, Junior 4 921sa901.16 Ord. or Judg.Division, Jalgaon by judgment and order dated 06.03.2008decreed the suit bearing RCS No. 328 of 1998. Against the saidjudgment the defendant filed the Regular Civil Appeal bearingNo. 133 of 2008 and the same came to be dismissed on13.11.2015 by the learned Principal District Judge, Jalgaon.7.The learned Advocate further submits that in thepresent case a substantial question of law arises as regardsSection 34 of the Registration Act. She further argued that thestamp vendor who prepared sale deed is examined before theCourt. He admitted that he had executed a stamped documentof a sale deed. The finger print expert is also examined whostated that the thumb impression on the sale deed and thethumb impression of the plaintiff matches. When such evidenceis on record, the Court ought to have pass the decree. Shefurther submits that the sale deed executed before theRegistrar, there is no dispute. The dispute is only about whohas executed the sale deed and in view of the finger printexpert’s report it is sufficiently proved that the thumbimpression on the sale deed is of the plaintiff. 5 921sa901.16 Ord. or Judg.8.She further submits that the learned appellate Courthas also committed error in not appreciating the evidence inproper perspective and particularly the report of the finger printexpert.9.This Court has gone through the record and theproceedings. This Court has perused the evidence of theparties. So far as the finger print expert’s report is concernedhe admitted in his cross-examination that the report which ison record does not bear his signature, though the stamp vendori.e. scribbler of the document has examined. He in his cross-examination clearly accepted that he did not verify the identityof the vendor while executing the sale deed. Thus, on this boththe Courts have held that the identify of the person whoexecuted the sale deed is not established. It is also further heldthat though the finger print expert’s report is on record, headmitted in his cross-examination that the said report does notbear his signature and, therefore, the said report is notexhibited by both the Courts. Considering all these aspects, thisCourt needs to consider the present appeal. 6 921sa901.16 Ord. or Judg.10.The learned Advocate has relied upon the judgmentreported in 2010 (2) Mh.L.J. 970 in the case of Sarjerao MarutiSathe Vs. Pralhad Laxman Sathe and Others. The saidjudgment is in respect of Bombay Tenancy and AgriculturalLands Act. In the said case the question was about thereliability of the documentary evidence under Section 61 of theIndian Evidence Act. The Court held that the certified copy ofthe partition deed is not a public document and therefore, itcould not have been read in the evidence without examining theattesting witness. There is no dispute so far as the prepositionlaid down in the said judgment. The question in this case is asto whether the defendant has specifically proved her case inrespect of the sale deed when the plaintiff has specifically comewith a case that she has never executed the sale deed in favourof the defendant, the question that goes to the root of thematter. After the initial burden is discharged by the plaintiff toshow that she has not executed the sale deed it was for thedefendant to specifically prove that the document i.e. the saledeed is executed by the plaintiff herself as it is her specific case.11.The defendant in this case has failed to prove the
Decision
7 921sa901.16 Ord. or Judg.said fact. It is also not clear as to what happened about thecriminal case thereafter and the learned Advocate could not givethe details of the said criminal case.12.With this all, this Court finds that the questiondecided by both the Courts are necessarily the questions of fact.No substantial question of law is made out calling foradjudication at the hands of this Court.13.This Court is thus not inclined to entertain theappeal and the Second Appeal stands dismissed. No order as tothe costs.14.In view of the disposal of the Second Appeal,pending Civil Applications, if any, also stand disposed off. ( KISHORE C. SANT ) JUDGE mahajansb/