High Court

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{1} sa79-24.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.79 OF 2024WITHCIVIL APPLICATION NO. 4003 OF 2024Asaram Balaji Talekar (Died) LRs & Others APPELLANTSVERSUSMahadu Sakruji Raut (Died) LRs and Others RESPONDENTS.......Mr. A. G. Godhamgaonkar h/f Mr. A. A. Puranik, Advocate for theappellantsMr. P. R. Katneshwarkar h/f Mr. S B. Solanke, Advocate forrespondent No.1 / caveater....… [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 12 th JUNE, 2024 ORDER :1.By this second appeal, original defendants challengejudgment and order dated 21st February, 2024 passed by learnedDistrict Judge -3 Aurangabad in Regular Civil Appeal No. 128 of2017, thereby allowing the appeal and decreeing the suit ofrespondent – plaintiffs.2.Plaintiffs filed Regular Civil suit No. 702 of 2015 fordeclaration, partition and separate possession, on the basis ofregistered sale deed dated 24th April, 1971, by which plaintiffNo.1 Mahadu s/o Sakruji Raut and defendant No.1 Asaram s/oBalaji Talekar had purchased the suit property bearing original {2} sa79-24.docSurvey No. 14/1 / Gut No.330 and Survey No. 161/1 totally admeasuring 9 Hectare 8 R. Plaintiffs claimed western half portionof the suit property by way of partition and separate possession,declaration and consequential reliefs.3.It is the case of the plaintiffs that the suit land was jointlypurchased by Mahadu and Asaram in the year 1971, by way ofregistered sale deed and both were having 50% share in the suitland. After purchase of the land, mutation entry No. 277 waseffected in the revenue record and names of plaintiff No.1Mahadu and defendant No.1 Asaram were mutated.Plaintiff Mahadu and defendant Asaram were closerelatives and both the family members had faith in each otherand they had cordial relations. Defendant Asaram and his wifedeceased Savitrabai were parents of plaintiff’s deceaseddaughter in law Punjabai, wife of Maruti. Asaram expired on 29thDecember, 197 and Savitrabai expired on 24th January, 2014. During lifetime of Asaram, plaintiffs and defendants weretaking half share in the crops cultivated in the suit land. Till 20thJune, 2011 defendants used to give half share in the crops to theplaintiffs, after deducting the expenses. In November, 2011,defendants No.1 to 5 refused to give half share to plaintiffs andtold that plaintiffs have no concern with the suit land. They {3} sa79-24.docthreatened the plaintiffs that they will transfer / sell out the suitland. Plaintiffs, therefore, obtained revenue documents, throughlawyer and it was realized that defendants No.1 to 5, in collusionwith officers from Land Record Department and Employees fromRegistrar’s office, have prepared forged documents in respect ofthe suit property. Plaintiffs therefore filed Regular Civil Suit No.838 of 2011 in the Civil Court. Defendants requested plaintiffs towithdraw the suit and to settle the matter in the meeting ofrelatives. Therefore, plaintiffs, by filing pursis Exhibit-70, soughtpermission to withdraw the suit with liberty to file fresh suit, onthe same cause of action. Trial Court granted said permission.It is the case of plaintiffs that at the time of consolidationproceedings, by Mutation Entry No. 429, name of plaintiffMahadu was deleted from ownership column of the revenuerecord of the suit land and following entries were effected :a.Mutation Entry No. 429 was effected. b.By Mutation Entry No. 99 on 21st February, 1984,Asaram transferred suit land in the name of his wife –Kausabai Asaram Talekar.c.Defendant No.1 Asaram Sold 40 R land out of the suitland to Savitrabai Shridhar Mhaske on 11thSeptember, 2001 and accordingly Mutation Entry No.1032 was taken in 7/12 extract. {4} sa79-24.docd.In spite of having knowledge that plaintiffs have halfshare in the suit land, with a view to grab plaintiffs’land, defendants on 5th June, 2012 have partitionedthe suit land amongst themselves.4.Plaintiffs, therefore, claimed that all the Mutation Entriesand Entries taken at the time of consolidation proceedings areillegal, null and void. Plaintiffs have half share in the suit landand, therefore, they sought declaration that -a.Plaintiff Mahadu is owner of half share of the suitland, as per sale deed No. 1211 dated 24th April,1971. b.Suit land be partitioned and possession of half sharebe given to plaintiffs. 5.Defendants No.1 to 4 filed written statement and resistedthe claim of plaintiffs. They contended that since the suit of theplaintiffs is in respect of revenue entries, civil court has nojurisdiction to entertain the suit and hence it be dismissed underOrder VII, Rule 11 of the Civil Procedure Code. The suit iscontrary to the provisions of the Maharashtra Prevention ofFragmentation and Consolidation of Holdings Act, 1947 and,therefore, Civil Court has no jurisdiction. It is contended that thesuit is barred by limitation, as a declaration is sought that {5} sa79-24.docplaintiff is owner of half portion of suit land, on the basis ofregistered sale deed dated 24th April, 1971. In the said saledeed, it is mentioned that plaintiff Mahadu has half share in thesuit land, however, Mahadu did not give any amount to purchasethe suit land. Half share of plaintiffs is specifically denied in thewritten statement. It is contended that the plaintiff was never inpossession of the suit land. Asaram was in possession and wascultivating the suit land. At the time of consolidation proceedingsalso, plaintiff was not in possession of the suit land hence, nameof Mahadu was deleted at the time of consolidation. Defendantsdenied that half share in the crop was being given to plaintiff. Itis further contended that without prejudice to the contentionsmade in the written statement, since defendants were incontinuous possession of the suit land, adverse to the interest ofplaintiffs, on the basis of principle of adverse possession,defendants have become owners of the suit land.6.Plaintiffs examined Mahadu and Kisan s/o Mahadu insupport of their claim and defendants examined SukhadeoAsaram Talekar. 7.On appreciation of evidence Trial Court dismissed the suit,holding that :“RCS 838/2011 was not withdrawn on the ground of defect in jurisdictionof the court. Moreover, the same was not also withdrawn for other cause of {6} sa79-24.doca like nature which means relating to the defect of jurisdiction. So, plaintiffcannot avail benefit of section 14 and the period for which plaintiff wasprosecuting the earlier suit cannot be excluded while computing the periodof limitation of this suit. In view of Article 58 of the Limitation Act a suit toobtain any declaration has to be filed within a period of 3 years when theright to sue accrues first.”8.Appellate Court set aside judgment and order passed byTrial Court and allowed the appeal filed by plaintiff and held thatplaintiff, being co-owner of the suit property, is entitled forpartition to the extent of half share in the suit property and isalso entitled for separate possession. Direction is issued forpartition of the suit property through the competent authority.Defendant is aggrieved by this decision.9.Learned advocate for appellants - defendants urged thatname of plaintiff No.1 Mahadu was deleted during consolidationproceedings, in the year 1981 and name of defendant Asaramwas exclusively mutated to the suit land. On 24th February,1984, by Mutation Entry No. 99, name of wife of Asaram wasmutated to the suit land. Thereafter, by way of partition, the suitland was partitioned between sons of Asaram (defendants). Noneof the entry has ever been challenged by plaintiffs, though theywere aware of the same. Defendants were holding the suit landadverse to the interest of plaintiffs since 1979. Therefore, theirtitle is perfected by adverse possession. According to him, {7} sa79-24.docsubstantial question of law involved in the present second appealis :I.Whether Appellate Court has erred in applying Article65 of the Limitation Act to the present case, as plaintiffslost right to obtain possession of the suit property from thedefendants, as defendants have become owners of the suitland by way of adverse possession and whether AppellateCourt has misinterpreted section 14 (3) of the LimitationAct?10.Learned advocate for plaintiffs, on the other hand,supported the impugned judgment.11.Heard learned advocates for the parties at length. Perusedthe documents placed on record.12.It is pertinent to note that purchase of suit land in the year1971 in the joint name of Asaram and Mahadu is not disputed. Itis contention of defendants that merely for the name sake, nameof plaintiff Mahadu was mentioned in the registered sale deedand he did not contribute at the time of purchase of the suit land.However, there is nothing on record to substantiate thiscontention of defendants. It is a matter of record that Trial Courthas held that plaintiff has proved that he is co-owner of the suitproperty as per sale deed dated 24th April, 1971, however, only {8} sa79-24.docon the ground of limitation, Trial Court has denied relief to theplaintiff. Said finding of the Trial Court that plaintiff has provedthat he is co-owner of the suit property to the extent of halfshare, was not challenged by defendants, by filing cross-appealin the Appellate Court. Therefore only issue to be considered byAppellate Court was whether Trial Court was justified indismissing the suit of the plaintiff holding that the suit fordeclaration is not filed within 3 years as contemplated underArticle 58 of the Limitation Act.13.The consolidation proceedings are conducted by actualsurvey on the spot by the competent persons under thenotification issued by the State. It is on the basis of theinformation given on the spot, at the time of survey that theentries are made. In what manner the name of plaintiff isexcluded in spite of fact that he was the co-owner by way ofregistered sale-deed along with deceased Asaram is notexplained by the defendants. Mere exclusion of name of the trueowner from the revenue record would not diminish his ownershipover the land. Appellate Court has negatived the contention ofdefendants that in the year 1980 after consolidation, plaintiff washaving knowledge that his name was deleted from the revenuerecord, as defendants failed to establish the same by leadingevidence. It is held that contention of the defendants that {9} sa79-24.docplaintiff had knowledge that in the year 1980 itself his name wasdeleted from consolidation proceedings, is required to be provedand established by the defendants and defendants failed to leadany evidence to prove this aspect. 14.It is a matter of record that the suit filed by plaintiff, beingRCS No. 838 of 2011 came to be withdrawn as per order of Courtdated 28th March, 2014 and liberty was granted to plaintiff to filefresh suit on the same cause of action. Plaintiff has alsoprosecuted revenue proceedings and revenue authorities haveobserved that appropriate decision of Civil Court is required andhence plaintiff presented the suit in the year 2015. AppellateCourt, therefore, held that plaintiff was prosecuting remedybefore revenue authorities. Having failed in his attempt, hepreferred litigation before High Court, which is pending.15.It is a matter of record that revenue proceedings wereinitiated by plaintiffs on 10th April, 2014, in the said proceedings,for the first time, defendants denied plaintiffs’ title to the suitland and the same has given fresh cause of action to plaintiffs tofile suit. Present suit is filed by plaintiffs in the year 2015 and,therefore, the suit filed by plaintiffs for declaration was wellwithin limitation from the date of accrual of fresh cause of action.It further appears that plaintiffs were prosecuting remedy before {10} sa79-24.docrevenue authorities. Even if it is assumed that plaintiffs filedpresent suit on the same cause of action, admittedly, earlier suitwas for simplicitor injunction and in the present suit, plaintiffshave claimed declaration as well as partition. In this view of thematter, Trial Court has erred in applying Article 58 of theLimitation Act and coming to the conclusion that the suit filed byplaintiffs was beyond limitation.16.On this issue, by relying on “C. Mohammad Yunus V/sSyed Unnisa” 1961 CS (SC) 51, Appellate Court has observedthat -“In the present case, even if the relief of declaration was not sought, theplaintiff is the co-owner of the property by way of registered sale deed inhis name. The mutation entry to that effect was also affected in the revenuerecord; therefore, he was entitled for partition and separate possessioneven without declaration. The relief of declaration was not consequentialfor claiming the relief of partition and separate possession, the plaintiffcould have asserted his title and claimed partition and separatepossession even without seeking declaration. Therefore, the learned trialCourt has committed serious error in applying Article 58 of the LimitationAct which prescribes limitation only for declaration.”17.Considering the evidence placed on record and the peculiarfacts of the present case, Appellate Court is right in holding thatArticle 65 of the Limitation Act, which prescribes limitation of 12years is applicable to the present case. Appellate Court isjustified in holding that Trial Court has committed error in {11} sa79-24.docapplying Article 58 of the Limitation Act to the present case.Appellate Court has rightly recorded a finding that the suit waswell within limitation from the date of knowledge of plaintiff,when he was restrained by defendants and when defendantsdenied title of plaintiff to the suit land, in revenue proceedings. 18.Though plea of adverse possession is vaguely raised in thewritten statement, however, no evidence whatsoever is broughton record by defendants to substantiate the same. Hence, thesame was rightly not adverted to by both the Courts below.19.It is well settled legal position that revenue entries are onlyfor the fiscal purposes and they do not confer or extinguish anytitle. Therefore, plaintiff, who has title to the suit land, cannot bedenied relief of partition and separate possession. Admittedly,sale deed dated 24th April, 1971 is not challenged by defendantsat any point of time.20.For the aforestated reasons, there is no illegality orperversity committed by the first Appellate Court, in allowing theappeal of plaintiffs, by giving proper reasons. Appellate Court hasrightly appreciated the evidence on record and has rightlyinterpreted Article 58 and 65 of the Limitation Act. No substantialquestion of law is involved in the present second appeal. Secondappeal being devoid of merit, is dismissed. {12} sa79-24.doc21.In view of dismissal of Second Appeal, Civil Application No.4003 of 2024 is also dismissed. [NITIN B. SURYAWANSHI]JUDGE drp/sa79-24.doc