High Court
Legal Reasoning
1356.2000SA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.SECOND APPEAL NO. 356 OF 2000(WITH CIVIL APPLICATION NO. 8302 OF 2018) 1.Dilipkumar S/o Hansraj JainAge – Major, Occ :- Agri. and Service,R/o Hatnoor, Tq. Kannad, Dist. Aurangabad.2.Nirmalkumar S/o Hansraj JainAge – Major, Occ and R/o As above.3.Rikhabchand S/o Hansraj JainAge- Major, Occ – and R/o As above...APPELLANTS-VERSUS-1.Fatechand S/o Gulabchand JainSince deceased through his L.R’s.,1-a)Padmabai W/o Fatechand Kasliwal (Jain),Age :- 70 years, Occ . Household,R/o Near Deshmukh Hospital,Beed-Bye pass Road, Aurangabad.1-b)Anil S/o. Fatechand Kasliwal (Jain),Age : - 60 years, Occ : - Business,R/o Hiwarkheda Road, Kannad,Tq. Kannad, Dist. Aurangabad.1-c)Ramesh S/o. Fatechand Kasliwal (Jain),Age :- 58 years, Occ : - Service,R/o Plot No.73, Kalindinagar,Indore-Dewas Road, Indore (M.P.)1-d)Vijay S/o Fatechand Kasliwal (Jain),Age :- 56 years, Occ : - Business,R/o Plot No.103, 1st Floor,Geetanagar, Near Tilaknagar,Indore (M.P.)1-e)Sanjay S/o. Fatechand Kasliwal (Jain)Age : 50 years, Occ : - Business,R/o House No.29, Darshan Vihar,Near Deshmukh Hospital,Beed-Bye-Pass Road, Aurangabad.
Legal Reasoning
2356.2000SA.odt1-f)Sau. Sunanda W/o. Vilas SethiAge : - 48 years, Occ :- Household,R/o Rajabazar, Opp. Jain Mandir,Aurangabad.1-g)Sau. Meena W/o. Bharatkumar GangwalAge :- 45 years, Occ : - Household,R/o Jain Mandir Lane, Kannad,Tq. Kannad, Dist. Aurangabad.2.Nemichand S/o. Gulabchand JainSince deceased, through his L.R’s.2-a)Pradipkumar S/o Nemichand JainAge :- 50 years, Occ. Service,R/o 227/5989, `Surajkiran’,Pantnagar, Ghatkopar (E),Mumbai – 75.2-b)Dilipkumar S/o Nemichand Jain(Since deceased) Through L.Rs.2b-1)Veer S/o Deelipkumar JainAge 15 years, Occ : EducationUnder guardian ofResp. no. 2b3 his mother,Smt. Kalpana wd/o Deelipkumar Jain2b-2)Ruchita d/o Deelipkumar JainAge 19 years, Occ : Education,2b-3)Smt. Kalpana Deelipkumar JainAge : 50 years, Occ : Household,Resp. Nos.2b-1 to 2b-3 R/o 182/4965,Pantnagar, Ghatkopar East,Greater Mumbai 400 075...RESPONDENTS...Advocate for appellants : Mr.C.K. ShindeAdvocate for Respondent Nos.1/1-a : Mr.H.K. MundheAdvocate for Respondent Nos.1/1-b, 1-e, 1-f & 1-g : Mr.P.F. Patni Advocate for Respondent Nos.2b-1 to 2b-3 : Mr. A.H. Kasliwal … 3356.2000SA.odtCORAM :ROHIT W. JOSHI, J. RESERVED ON : 19.03.2025PRONOUNCED ON : 28.03.2025PJUDGMENT :CIVIL APPLICATION NO. 8302OF 2018 :- 1.This application under Order XLI Rule 27 of the Code ofCivil Procedure is filed by the appellants seeking permission to leadadditional evidence. Vide order dated 12th June, 2018, it was directedthat the application will be taken up for hearing at the time of finalhearing. Appeal was heard on 19.03.2025. The learned Advocate forthe appellants had made submissions on this application as well. Hehad referred to only one document filed along with the application i.e.mortgage deed dated 10.11.1933. This document is considered whiledeciding the second appeal. Apart from this, learned counsel for theappellants did not urge to take into consideration any other document.2.The learned Advocate for the respondents did not object totake the mortgage deed into consideration while deciding the appeal. Itwas decided that the mortgage deed will be considered while decidingthe appeal without formal proof of the same, since both the partieswere not disputing the said document.3.The civil application is partly allowed only with respect tomortgage deed. 4356.2000SA.odtSECOND APPEAL NO. 356 OF 2000 :- 1.The present second appeal is filed by the original plaintiffschallenging the judgment and decree dated 26.07.1991 passed by thelearned Joint Civil Judge, Junior Division, Kannad, Dist. Aurangabad,dismissing Regular Civil Suit No.108/1984 as also the judgment anddecree dated 07.08.1999 passed by the learned Extra Joint DistrictJudge, Aurangabad in Regular Civil Appeal No.227/1991, whereby thefirst appeal filed by the present appellants came to be dismissed. Theappellants are hereinafter referred as “plaintiffs” and respondents arereferred as “defendants”.2.The following family tree explains the inter se relationshipbetween the parties :-Shivalal (Died) Chandmal (Died)Jaskaran (Died) Gulabchand (Died) Hansraj (Plaintiff No.4) DilipNirmalRikhbachand Fatechand Nemichand Plaintiff No.1 Plaintiff No.2 Plaintiff No.3 Deft. No.1 Deft. No.2 3.Perusal of the family tree will indicate that late Shivlal hadthree sons namely (i) Chandmal, (ii) Jaskaran, (iii) Gulabchand.Jaskaran had expired without leaving behind any legal heirs. Thedispute in the matter pertains to properties of the family. The plaintiffsare decedents of Chandmal S/o Shivlal. Plaintiff No.4 is son of 5356.2000SA.odtChandmal and plaintiff nos.1 to 3 are his sons. Likewise, the defendantsare decedents of Gulabchand S/o Shivlal. The plaintiffs had filed suitseeking possession of the suit properties, which are agricultural landsbearing Gat Nos.361/2 admeasuring 0.81 HR and Gat No.362admeasuring 7.18 HR situated at village Hatnoor, Tq.Kannad, Dist.Aurangabad. It is the case of the plaintiffs that land bearing SurveyNo.282, 283 and 284 of village Hatnoor, originally belonged to oneMr.Albert James. It is stated that land bearing survey nos.282 and 283were received by late Chandmal, (predecessor of the plaintiffs) andland bearing survey no.284 was received by Gulabchand (predecessorof the defendants) from the said Mr.Albert James. It is further statedthat the brothers Chandmal and Gulabchand separated by virtue ofpartition between them in the year 1931. Chandmal, father of plaintiffno.4 expired in the year 1931, and therefore, his uncle Gulabchand,father of defendant nos.1 and 2 was looking after him and also takingcare of his properties. It is alleged that Gulabchand sold land bearingsurvey no.284, which was owned by him in the year 1931. It is furtheralleged that Gulabchand had mortgaged land bearing survey nos.282and 283 with one Kesharchand Dipchand acting as guardian of plaintiffno.4, who was minor at that time. It is stated that plaintiff no.4 hasthereafter redeemed the mortgage in the year 1946. The plaintiffs statethat plaintiff no.4 was recorded as sole owner of land bearing surveynos.282 and 283 in the revenue records till the year 1959. They allege 6356.2000SA.odtthat defendant nos.1 and 2 represented plaintiff no.4 that the landbearing survey nos.282 and 283 were properties of Joint Hindu Familyand got a document titled as `Vatani Patrak’, i.e. partition deed dated21.06.1959 executed from him. It is stated that the said partition deeddated 21.06.1959 is obtained fraudulently by misrepresenting the factsto plaintiff no.4. It is further alleged that defendant nos.1 and 2 haveacting hand in gloves with the revenue authorities recorded their namesin the revenue record with respect to land bearing survey nos.282 and283. Survey nos.282 and 283 have been sub-divided on the basis ofalleged partition. Land bearing survey no.282/1 admeasuring 18 acres36 guntha is allotted to the share of plaintiff No.5 and survey no.282/2admeasuring 2 acres is shown to be allotted to the share of defendantNos.1 and 2 on the basis of the said partition deed. 4.As regards survey no.283 it is stated that a portion of landadmeasuring 12 acres 8 guntha was sold by plaintiff no.4 anddefendant no.1 vide sale deed dated 05.11.1959. With respect to thissale deed, it is stated that although plaintiff no.4 alone was the owner,signature of defendant no.1 was taken as a vendor on the sale deed onthe insistence of the purchaser. It is stated that this portion of 12 acres8 guntha came to be numbered as survey no.283/2 and remainingportion of 17 acres 30 guntha came to be numbered as survey no.283/1and it stood in the name of defendant nos.1 and 2. The plaintiffs 7356.2000SA.odtfurther states that defendant nos.1 and 2 had no right to occupy 2 acresland in survey no.282/2, which was renumbered as gat no.361/2 and17 acres 30 guntha land in survey no.283/1, which was renumbered asgat no.362. These two properties are referred in the plaint as suitproperties and the plaintiffs have claimed possession of the suitproperties in the suit claiming ownership over the same. The plaintiffsclaimed that the partition deed dated 21.06.1959 on the basis of whichdefendant nos.1 and 2 claim ownership is obtained fraudulently bymisrepresentation. It needs to be mentioned that the alleged fraud ormisrepresentation is not with respect to execution of the document. It isthe case of plaintiffs that the defendant nos.1 and 2 misrepresented theplaintiff no.4 that the properties bearing Survey Nos.282 and 283 wereancestral properties of the plaintiffs and defendants and on such falserepresentation they obtained the document of partition dated21.06.1959 from plaintiff no.4. 5.As against this, the case of defendant nos.1 and 2 is thatland bearing survey nos.282 and 283 were initially acquired by lateShivlal, grand-father of plaintiff no.4 and defendant nos.1 and 2. Theydenied that the document of partition was outcome of fraud. Theyclaimed that the document of partition in fact records the terms of oralpartition, which was arrived at between the family members ofChandmal (plaintiff no.4) and Gulabchand (defendant nos.1 and 2). 8356.2000SA.odt6.Based on the rival pleadings, the learned trial Court framedissues on which the parties led their evidence. The plaintiffs examinedplaintiff no.3 – Rikhabchand as their sole witness and closed theirevidence. As against this, the defendants examined defendant no.1 –Fatechand as their sole witness. 7.The learned trial court, after hearing the arguments ofrespective Advocates, has dismissed the suit vide judgment and decreedated 26.07.1991. The learned trial court has drawn adverse inferenceagainst plaintiff no.4 for not entering into witness box. The learned trialcourt has held that pleadings of fraud are absolutely vague. It is alsoobserved that just as defendant no.1 had executed partition deed dated21.06.1959 (Exhibit-52) in favour of plaintiff no.4, the plaintiff no.4had executed a similar document in favour of defendant no.2. It is heldthat the entries of mutation are long standing entries, which were notdisturbed for a sufficiently long period. Apart from this, learned trialcourt has held that defendants had perfected their title by adversepossession. In view of the aforesaid, the learned trial court was pleasedto dismiss the suit on 26.07.1991 for possession filed by the plaintiffs.Aggrieved by dismissal of their suit, the plaintiffs filed first appealunder Section 96 of Civil Procedure Code, being Regular Civil AppealNo.227/1991. The said appeal is dismissed vide judgment and decree 9356.2000SA.odtdated 07.08.1999. The learned first appellate court has also scannedthe entire evidence on record and has recorded that the plaintiffs hadfailed to prove that the partition receipt dated 21.06.1959 was obtainedby practicing fraud. The learned first appellate court has recordedcategorical finding that partition had taken place between the partieson 21.06.1959. The learned first appellate court also agreed with thelearned trial court that the defendants had perfected their title byadverse possession. 8.Against these concurrent decrees, the plaintiffs have filedthe present second appeal, which came to be admitted vide order dated14.02.2008, on the following four substantial questions of law :-a)Whether the lower courts were right in recordingthe finding that the possession of the defendants needsto be protected as the same being hostile to the realowner and continuous and open and adverse to theinterest of the plaintiff ? b)Whether the trial court was justified in recordingfinding that the long standing revenue entries arethemselves an instance signifying factum of ownershipand whether such an inference can reasonably bedrawn on the basis of mere recording of revenueentries ? 10356.2000SA.odtc)Whether the courts below were justified inconstruing the documents at Exh.52 as receipt ofpartition when the contents of the said documentsprima facie indicate something else than what has beencontended ?d) Whether the continuous possession of thedefendants over the disputed property coupled withfact that plaintiff and defendants are from same familylead to an reasonable inference as regards acquisitionof hostile title by defendants.9.I have perused the pleadings, depositions of plaintiff no.3and defendant no.1 and documents on record as also findings recordedby the learned Courts with the able assistance of both the learnedAdvocates appearing in the matter. 10.At the outset, it needs to be mentioned that plaintiff no.4 isthe eldest member in the family of plaintiffs. He is father of plaintiffnos.1 to 3. The allegation in the plaint is that the document of partitionwas got executed by practicing fraud upon him and misleading him.Having regard to the aforesaid, in my considered opinion, it wasnecessary for the plaintiffs to examine plaintiff no.4 as their witness.The learned Courts have rightly drawn adverse inference against theplaintiffs for not examining plaintiff no.4 as their witness. It will bepertinent to note that plaintiff no.3, who has entered the witness box 11356.2000SA.odthas stated in his cross-examination that his father has tendency tospeak the truth because he is innocent. That appears to be the reasonfor not examining him.Answer to all questions overlap to certain extent and therefore allquestions are decided together :- 11.As regards the document of partition, learned Advocate forthe appellants has vehemently argued that the document of partition isin fact document of demise under which partition has taken place,according to defendant nos.1 and 2. He contends that the saiddocument is not memorandum of partition, which had already takenplace. He contends that the document was required to be registered inview of mandate of Section 17 of the Registration Act and further thatthe said document could not be read in evidence in view of the barunder Section 49 of the said Act. 12.I have perused the document of partition at Exhibit-52. Thecontention of the learned Advocate for the appellant is correct that thesaid document is not a memorandum of partition that had allegedlytaken place in past. It is certainly a partition deed under whichseparation has taken place. The document is required to be registeredas per Section 17 of the Registration Act. 12356.2000SA.odt13.However, that by itself is not the end of the matter. Thedocument is of the year 1959. The suit is filed in the year 1984. It willbe pertinent to mention here that this original document of partition isfiled on record by the plaintiffs themselves. Apart from this, it has alsoclear from in the evidence on record that just as defendant no.1 hadissued document dated 21.06.1959 in favour of plaintiff no.4, plaintiffno.4 had also issued similar letter of partition in favour of defendantnos.1 and 2. It is therefore clear that the parties had decided topartition their jointly owned properties and had issued lettersevidencing the same in favour of each other. 14.It will also be profitable to refer to the revenue record. Onthe basis of the document of partition at Exhibit-52 entry in themutation register is recorded in the name of plaintiff no.4. The saidextract of mutation register is at Exhibit-56. Likewise, on the basis ofsimilar letter of partition issued by plaintiff no.4 in favour of defendantnos.1 and 2 entry with respect to suit properties is taken in the name ofdefendant nos.1 and 2 in the register of mutations. The said extract ofmutation register is at Exhibit-53. The 7/12 extracts show ownership ofrespective parties with respect to portions allotted to their sharethereafter. The parties are also paying taxes with respect to theproperties that have fallen to their share which is also apparent from 13356.2000SA.odtthe exhibited documents on record. The plaintiff no.3 who is the solewitness of the plaintiffs has expressly admitted that the plaintiffs arenot paying taxes for the suit properties since the year 1959. In the lightof aforesaid, I am of the considered opinion that the learned courtshave rightly recorded the findings of fact that partition in the familyhad in fact taken place in which the suit properties had fallen to theshare of defendant nos.1 and 2 and that the plaintiffs are not entitled toclaim possession of the suit properties from defendant nos.1 and 2. 15.The learned Advocate for the appellant has placed relianceupon the several judgments of this Court as also the Hon’ble SupremeCourt to contend that document which is required to be compulsorilyregistered cannot be read in evidence as proof of the transactionrecorded in the document. Whereas, there cannot be any dispute withthe said proposition, in my considered opinion, it will be moreappropriate to apply principle of estoppel laid down by the Hon’bleSupreme Court in the case of Kale and others Vs. Deputy Director ofConsolidation reported in AIR 1976 SC 807, which is relied upon bythe learned Advocate for defendant nos.1 and 2. In the matter beforethe Hon’ble Supreme Court severance in a family was arrived at undera document of family settlement. The said document was notadequately stamped and was also not registered. However, thedocument was accepted by the parties and all the parties had acted 14356.2000SA.odtupon the said document all throughout. In this backdrop, when disputearose with respect to properties of the family and the said documentbecame a bone of contention between the parties, the document wassought to be dislodged taking shelter under the provisions of the StampAct and Registration Act. The Hon’ble Supreme Court has held thateven if the document of settlement was not registered and notadequately stamped, it would operate as complete estoppel against theparties, who had accepted the document and acted upon the same. TheHon’ble Supreme Court has also reiterated the settled legal principlethat although, an unregistered document cannot be read in the proof ofthe transaction recorded under it, it can certainly be read for collateralpurposes, which includes determining the character of possession of aperson over immovable property. The Hon’ble Supreme Court in thesaid judgment in para no.44 has observed as under :-“44. …….. The High Court further erred in notconsidering the fact that even if the familyarrangement was not registered it could be used for acollateral purpose, namely, for the purpose, of showingthe nature and character of possession of the parties inpursuance of the family settlement and also for thepurpose of applying the rule of estoppel which flowedfrom the conduct of the parties who having takenbenefit under the settlement keep their mouths shut forfull seven years and later try to resile from thesettlement.” 15356.2000SA.odt16.In my considered opinion, the principles laid down by theHon’ble Supreme Court in the said judgment are squarely applicable tothe facts of the present case, wherein the respective claims with respectto properties in the family were set at rest by the parties and the suit forpossession disputing the document was instituted after a period ofaround 25 years from the arrangement arrived at between the parties,which was accepted and acted upon all throughout. It must bementioned that just as provisions of Registration Act are a part ofstatute. Estoppel is also a principle, which is statutorily recognized. Theprovisions of the Registration Act cannot be pressed into service tocompletely wipe out Section 115 of the Evidence Act. The parties whohave stood by the transaction for years together cannot be allowed todisrupt the entire understanding after an inordinate period of delay asis sought to be done in the case in hand.17.The learned Advocate for defendant nos.1 and 2 has drawnmy attention to the letters at Exhibit-70 to 72 issued by plaintiff no.4 todefendant nos.1 and 2. Perusal of these letters clearly indicate thatthere was no partition in the family till the year 1959 as contended bythe plaintiffs. The letters issued by plaintiff no.4 are for calling upondefendant no.1 to receive his share of the sale consideration withrespect to a property of the family which was sold by appellant no.4.Likewise the other two letters are issued calling upon the defendants to 16356.2000SA.odtmake payment of money for expenses for cultivation of the land. Theseletters are sufficient to dislodge the claim of the plaintiffs that therewas a partition in the family somewhere around the year 1930 underwhich the lands bearing survey nos.282 and 283 had fallen to theirshare. 18.It will be pertinent to mention here that according to thedefendants, survey no.284 had fallen to the share of plaintiffs andplaintiffs have already sold the said property. It has come in theevidence of plaintiff no.3 that the properties which had fallen to theirshare were sold by them. This further fortifies the contention ofdefendants that the property is partitioned.19.It will be pertinent to mention here that the disputeddocument of partition is filed on record by the plaintiffs. They wereobviously in the custody of the same. However, they have not chosen tochallenge the said document. Plaint averments and evidence of plaintiffno.3 does not demonstrate as to when they got knowledge about thedisputed document and wrong entries in the revenue records. In myconsidered opinion, it was necessary for the plaintiffs to challenge thesaid document and in any case to seek appropriate declaratory reliefwith respect to the said document. The suit as framed and filed is notmaintainable. It was necessary for the plaintiffs to seek appropriate 17356.2000SA.odtrelief of declaration to overcome the document of partition at Exhibit-52. 20.The case of adverse possession needs to be viewed in thepeculiar facts of the case, wherein earlier the plaintiffs and defendantsheld the property together as their Joint Hindu Family property. Thereis a partition in the year 1959 as is evidenced from document ofpartition dated 21.06.1959, corresponding revenue entries and othercircumstances such as plaintiffs having stopped making payment oftaxes for the suit property after the year 1959 and sale of land bearingsurvey no.284 by the plaintiffs which had fallen to their share. Upto theyear, 1959 property was held jointly. Thereafter, the defendants claimedabsolute ownership over the suit property to the exclusion of theplaintiffs on the basis of partition. The plaintiffs do not allege that theywere not aware about this partition. Their case is that the defendantnos.1 and 2 made a plaintiff no.4 to believe that the property was aproperty of Joint Hindu Family and got the partition on the basis of saidmisrepresentation. The plaintiffs were thus aware from the year 1959itself that defendants claimed exclusive ownership over the suitproperty. The suit is filed in the year 1984 after a period of around 25years. In that view of the matter, the possession of defendants becameadverse to the interest of plaintiffs since the year 1959 and uponcompletion of 12 years period i.e. in the year 1971, they perfected their 18356.2000SA.odttitle by adverse possession against the plaintiffs by virtue of Section 27of the Limitation Act. Finding by the learned Courts on this regardcannot be faulted.21.Both the learned Courts have correctly appreciated thefactual and legal position and have rightly dismissed the suit and firstappeal filed by the plaintiffs/appellants. In that view of the matter, thequestions of law framed in the appeal are answered in favour of therespondents. Appeal is therefore, required to be dismissed.22.The appellants have filed an application under Order XLIRule 27 of Civil Procedure Code for permission to lead additionalevidence. While advancing submissions on the said application, thelearned Advocate has referred to the mortgage deed with respect toland bearing survey nos.282 and 283. He contends that Gulabchandhad executed a mortgage as guardian for appellant no.4 since he wasminor at the relevant time. Perusal of the said document indicates thatGulabchand has executed the document as guardian of plaintiff no.4 inhis individual capacity. The document clearly reveals the said fact. Thesaid circumstance also goes against the plaintiffs who contend thatthere was already partition in the family in the year 1933 and the suitproperties had fallen to their share. It is sought to be contended thatbecause the suit properties had fallen to the share of plaintiff no.4, 19356.2000SA.odtGulabchand had executed the said document as guardian for plaintiffno.4. However, as stated above, Gulabchand had executed a documentfor himself and also as guardian of plaintiff no.4, which goes to showthat the property was joint at the relevant time. There is no evidencewith respect to partition of the said property, except the document ofpartition at Exhibit-52 under which property has fallen to the share ofdefendant nos.1 and 2. 23. Apart from the said document of mortgage, the learnedAdvocate did not refer to any other document filed along with the saidapplication. The purpose of the application filed by the appellants isthus served, in as much as, the document which was pressed intoservice during the course of arguments is considered in the judgment asabove. 24.In the result second appeal is dismissed.25.Civil Applications, if any, stand disposed of. [ROHIT W. JOSHI] JUDGEsga/