High Court

Legal Reasoning

(1) sa-97-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.97 OF 2025WITHCIVIL APPLICATION NO.2494 OF 20251.Vinayak Jagannath Shinde,Age: 67 years, Occupation: AgricultureR/o: Apegaon, Taluka Ambajogai, Dist. Beed.2.Omprakash Jagannath Shinde,Age: 63 years, Occupation: Agriculture,R/o: Apegaon, Taluka Ambajogai, Dist. Beed...Appellants(Original Plaintiffs)Versus1.Nanasaheb Narayan Kale,Age: 75 years, Occupation: Nil,R/o: Apegaon, Taluka Ambajogai, Dist. Beed.2.Arvind Nanasaheb Kale,Age: 37 years, Occupation: Agriculture,R/o: Apegaon, Taluka Ambajogai, Dist. Beed.3.Sudarshan Kishanrao Shinde,Age: 45 years, Occupation: Agriculture,R/o: Apegaon, Taluka Ambajogai, Dist. Beed.4.Shrihari Dattatray Shinde,Age: Major, Occupation: Agriculture,R/o: Apegaon, Taluka Ambajogai, Dist. Beed...Respondents (Original Defendants) …Mr. R. V. Dasalkar, Advocate for Appellants.Mrs. Anjali Bajpai Dube, Advocate for Respondent Nos.1 and 2.Mr. P. P. More, Advocate for Respondent Nos.3 and 4.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 25th MARCH, 2025.ORDER:- 1.The appellants/original plaintiffs impugn judgment anddecree dated 01.01.2025 passed by District Judge, Ambajogai in (2) sa-97-2025.odtRegular Civil Appeal No.62/2016, thereby upholding judgment anddecree dated 28.03.2016 passed by Civil Judge, Junior Division,Ambajogai in Regular Civil Suit No.135/2009, by which suit ofplaintiffs to the extent of relief of declaration of ownership has beendecreed and relief as to perpetual injunction is declined.(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The appellants/plaintiffs filed Regular Civil Suit No.135/2009before Civil Judge Junior Division, Ambajogai seeking relief ofdeclaration of ownership and perpetual injunction in respect ofland, which is part and parcel of Survey No.1/9. According toplaintiffs, it is their ancestral properties. During partition,plaintiff no.1 received 41R land from Eastern side and plaintiffno.2 received 1H 60R land from Western side. Since then, they areenjoying ownership and possession over property. However, on11.07.2009, defendants attempted to erect tin shed over suitproperty. They denied title of plaintiffs and attempting to raiseconstruction over suit property.3.The defendant nos.1 to 4 filed written statement and pleadedthat plaintiff no.2 put them into possession of suit property on thebasis of oral agreement to sale. The plaintiff no.2 was in need ofmoney as he was indebted and also for marriage expenses of hisdaughter. Eventually, he received sum of Rs.68,000/- from (3) sa-97-2025.odtdefendant nos.1 and 2 and put them in possession of 66 X 66 sq. ft.plot. The plaintiffs further assured to execute registered sale deed,but failed to execute the same. The defendant nos.3 and 4 also tookplea that plaintiff no.2 received amount of Rs.1,20,000/- andRs.90,000/- respectively from defendant nos.3 and 4 and put themin possession of suit plot, but failed to execute sale deed. Accordingto them, they are in lawful possession of suit property and presentsuit is filed only in order to avoid execution of sale deed.4.The Trial Court framed issues based on pleadings of theparties, recorded evidence and finally decreed suit of plaintiffs tothe extent of declaration of ownership, however, refused to grantdecree of perpetual injunction as defendants were found inpossession of property. Aggrieved plaintiffs filed Regular CivilAppeal No.62/2016 before District Judge at Ambajogai. However,same came to be dismissed vide judgment and decree dated01.01.2025, upholding decree as passed by Trial Court.5.Mr. Dasalkar, learned Advocate appearing for appellantssubmits that both Courts have concurrently held thatappellants/plaintiffs are owners of suit property. The defendantscould not prove oral agreement to sale as pleaded by them. In thatview of matter, there was no reason for rejecting claim of plaintiffsfor grant of consequential reliefs of perpetual injunction afterupholding plaintiffs’ title. Mr. Dasalkar would submit that (4) sa-97-2025.odtplaintiffs’ ownership as well as possession is consistently depictedin revenue record. However, only on the basis of so calledpanchanama recorded by Revenue Officer, Courts accepteddefendants’ possession. He would, therefore urge to admit Appealon proposed substantial questions of law.6.Per contra, Mrs. Bajpai-Dube, learned Advocate appearingfor respondent nos.1 and 2 and Mr. More, learned Advocateappearing for respondent nos.3 and 4 supports impugned judgmentand decree contending that concurrent findings of possession ofdefendants over suit property has been recorded by fact findingCourts. The finding is based on appreciation of evidence. Hence,do not require interference in this Second Appeal.7.Having considered submissions advanced and after goingthrough reasoning adopted by Courts below, it is undisputed thatplaintiffs are owners of suit property. Both the Courts have,therefore, granted declaration to that effect. The dispute in thisAppeal is only as regards to the relief of perpetual injunction,which has been declined by both Courts. Essentially, relief ofperpetual injunction can be granted on the basis of fact as topossession of parties. Although plaintiffs are owners of suitproperty, it was for them to establish their possession to claimdecree of perpetual injunction against defendants. In present case,defendants have specifically pleaded that plaintiffs entered into (5) sa-97-2025.odtoral agreement to sale and put them into possession over suit plot.It has been brought on record that plaintiff no.2 was indebted andin need of money for marriage expenses of his daughter. In thateventuality, he entered into transaction with defendants. Thedefendants and their witnesses deposed about handing over ofpossession of suit plots by plaintiff no.2.8.Apart from aforesaid evidence, a panchanama carried byCircle Officer depicting possession of defendant nos.1 and 2 withconstruction of tin shed has been brought on record. The TrialCourt as well as Appellate Court on appreciation of aforesaidevidence, recorded finding of fact that defendant nos.1 and 2 anddefendant nos.3 and 4 are in possession of suit plots, which arepart of 1H 60R belonging to plaintiff no.2. On the other hand,plaintiffs failed to bring on record evidence depicting theirpossession over suit property. In that view of matter, concurrentfindings of fact based on appreciation of evidence appears to haverecorded by fact finding Courts. In absence of proof of theirpossession, relief of perpetual injunction as claimed by plaintiffshas been rightly declined. Inspite of aforesaid findings, plaintiffsdid not ask for relief of possession. At this stage reference can begiven to the observations of Supreme Court of India in case ofGurdev Kaur and Ors. Vs. Kaki and Ors.1, which reads thus:1AIR 2006 SC 1975. (6) sa-97-2025.odt“68.The analysis of cases decided by the Privy Counciland this Court prior to 1976 clearly indicated the scope ofinterference under Section 100 C.P.C. by this Court. Evenprior to amendment, the consistent position has been thatthe Courts should not interfere with the concurrent findingsof facts. 69.Now, after 1976 Amendment, the scope of Section 100has been drastically curtailed and narrowed down. TheHigh Courts would have jurisdiction of interfering underSection 100 C.P.C. only in a case where substantial questions of law are involved and those questions have beenclearly formulated in the memorandum of appeal. At thetime of admission of the second appeal, it is the boundenduty and obligation of the High Court to formulatesubstantial questions of law and then only the High Court ispermitted to proceed with the case to decide those questionsof law. The language used in the amended sectionspecifically incorporates the words as "substantial questionof law" which is indicative of the legislative intention. Itmust be clearly understood that the legislative intention wasvery clear that legislature never wanted second appeal tobecome "third trial on facts" or "one more dice in thegamble.”9.In light of aforesaid exposition of law, there is no reason tointerfere in findings of fact or even re-appreciation evidence onrecord. In result, no substantial question of law arises forconsideration in this Second Appeal. Hence, Second Appeal standsdismissed.10.In view of dismissal of Second Appeal, pending CivilApplication also stands disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025