High Court

Legal Reasoning

(1) sa-588-2015IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.588 OF 2015WITHCIVIL APPLICATION NO.14237 OF 2015WITHCIVIL APPLICATION NO.10767 OF 20211.Bhagwandas S/o Jinabhai Patel,(The deceased through his legal Heirs and legal representatives)1-A.Mr. Bhupesh S/o Bhagwandas Patel,Age: 54 years, Occ: Business,R/o 602, Kiran Pawar, 45 Palihill,Opp-Cozy Home, Bandra (West)Mumbai-400 050.1-B.Ms. Falguni Bhagwandas Patel,Age: 46 years, Occ: Business,R/o 602, Kiran Pawar, 45 Palihill,Opp-Cozy Home, Bandra (West)Mumbai-400 050.1-C.Mrs. Kiran Vikas Hindocha,Age: 48 years, Occ: Business,R/o F-711, Karan Building, Off yari Road, Versova, Andheri (West)Mumbai-400 050.2.Atul Mangalal Patel,Age: 55 years, Occ: Business3.Rahul S/o Bhaulal Patel,Age: 53 years, Occ: Business4.Sharadaben Bhagwandas Patel(The deceased through his legal Heirs and legal representatives)4-A.Mr. Bhupesh S/o Bhagwandas Patel,Age: 54 years, Occ: Business,R/o 602, Kiran Pawar, 45 Palihill,Opp-Cozy Home, Bandra (West)Mumbai-400 050. (2) sa-588-20154-B.Ms. Falguni Bhagwandas Patel,Age: 46 years, Occ: Business,R/o 602, Kiran Pawar, 45 Palihill,Opp-Cozy Home, Bandra (West)Mumbai-400 050.4-C.Mrs. Kiran Vikas Hindocha,Age: 48 years, Occ: Business,R/o F-711, Karan Building, Off yari Road, Versova, Andheri (West)Mumbai-400 050.5.Sau. Jaishree Surendra Patel,Age: 47 years, Occ: BusinessAll R/o 3, Oriental Building,First Floor, 62, M.G. Road,Fort, Mumbai-1...Appellants(Orig. Deft. Nos.5 to 9)Versus1.Sau. Malti Ramesh Patil,Age: 52 years, Occ; Agri.,R/o. Vitthal Peth, jalgaon,Tq. & Dist. Jalgaon.2.Sau. Chandrabai Vasant Patil,Age: 53 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.3.Chandrakant Vasant Patil,Age: 40 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.4.Kishor Vasant Patil,Age: 38 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.5.Sau. Mangal Vasant Narkhede,Age: 33 years, Occ: Agri.,R/o Salve, Tq. Dharangaon District Jalgaon.6.Suresh Damu Patil,Age: 61 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon. (3) sa-588-20157.Ramesh Damu Patil,Age: 56 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.8.Ashok Damu Patil,Age: 47 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.9.Chudaman Damu Patil,Age: 45 years, Occ: Agri.,R/o Nashirabad, Tq. & Dist. Jalgaon.10.Sau. Sushilabai Prabhakar Bhoi,Age: 41 years, Occ: Agri.,R/o Asoda, Tq. & Dist. Jalgaon...Respondents(R.No.1-Orig. Plaintiff & R. Nos.2 to 10-Orig. Deft. Nos.1 to 4 & 10 to 14.) …Mr. R. N. Dhorde, Senior Advocate i/by Mr. V. R. Dhorde a/w Mr.Sanjay S. Dudhane, Advocate for Appellants.Mrs. A. N. Ansari, Advocate for Respondent No.1.Mr. S. B. Yawalkar, Advocate for Respondent Nos.2 to 4 and 6 to 9.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 17th APRIL, 2025.ORDER:- 1.The appellants/original defendant nos.5 to 9 impugnjudgment and decree dated 23.02.2015 passed by Principal DistrictJudge, Jalgaon in Regular Civil Appeal No.91/2008, therebyupholding judgment and decree dated 22.02.2008 passed by JointCivil Judge, Senior Division, Jalgaon in Special Civil SuitNo.74/2004. (Hereinafter, parties are referred to by their originalstatus for the sake of convenience and brevity).2.The facts giving rise to present Second Appeal can besummarized as under: (4) sa-588-2015One Damu Kushal Patil was owner of land Gut No.421/1admeasuring 4H 95R situated at village Manyarkheda, Tq. andDist. Jalgaon. He died in the year 1978 leaving behind his sonsnamely Vasant, Suresh, Ramesh, Ashok and Chudaman and twodaughters namely Malti and Sushilabai. In the year 1995 Vasantand his brothers executed registered sale deed. Vasantrepresented himself as Power of Attorney holder of Sau. MaltiPatil. Accordingly defendant nos.5 to 9, i.e. Bhagwandas Patel andothers acquired ownership and title of the suit property. Later on,in the year 2007, Malti Patil instituted Regular Civil Suit, whichwas later on re-numbered as Special Civil Suit No.74/2007 seekingdecree of partition and separate possession of her 1/7th sharecontending that she being one of the legal representative of DamuKushal Patil/original land owner, entitled for 1/7th share in suitproperty. However, her brother Vasant Patil falsely representedhimself as her Power of Attorney holder and transferred land todefendant nos.5 to 9 under registered sale deed dated 07.06.1996.She contends that her signature was obtained under pretext ofrecording mutation entry by her brother, which has been utilizedfor creating false document of Power of Attorney.3.The suit was contested only by defendant nos.5 to 9(purchaser) by filing written statement contending that sale deed is (5) sa-588-2015valid and defendant no.1-Vasant was Power of Attorney holder ofplaintiff. Therefore sale deed is binding upon her.4.The Trial Court framed issues, recorded evidence of partiesand concluded that defendants failed to prove execution of Power ofAttorney by plaintiff in favour of Vasant Patil. Consequently, saledeed would not bind on her right over suit property. In Appealfiled by defendant nos.5 to 9 before District Judge, finding recordedby Trial Court is confirmed. Ultimately, plaintiff is held entitledfor 1/7th share in suit property by declaring that sale deed dated07.06.1996 is not binding on plaintiff’s right.5.Mr. Dhorde, learned Senior Advocate appearing forappellants submits that plaintiff has pleaded that her signaturewas obtained on some paper by Vasant Patil and same has beenused to represent himself as Power of Attorney holder of plaintiff.According to Mr. Dhorde once she accepted signature, it was for herto prove that it was obtained by fraud or she has not executedPower of Attorney. According to Mr. Dhorde, Trial Court as well asAppellate Court failed to frame appropriate issues and points forconsideration and wrongly ventured into irrelevant aspects ofmatter while passing decree in favour of respondent no.1/originalplaintiff. (6) sa-588-20156.Per contra, Mrs. Ansari, learned Advocate appearing forrespondent no.1 supports judgment and decree as passed by Courtsbelow.7.The plaintiff has specifically asserted that she never executedPower of Attorney in favour of her brother Vasant Patil and,therefore, sell transaction would not bind on her right. Thedefendant nos.5 to 9 contested claim of plaintiff. The defendantno.6 in his deposition on behalf of all defendants admitted thatVasant and other four were owners of land. At the time ofexecution of sale deed, all were not present. Two ladiesrepresented by Vasant as Power of Attorney were not present atthe time of sale deed. He could not produce original sale deed andPower of Attorney in Court, although he claims to have possessedthe same. Only photocopy of sale deed is placed on record. Boththe Courts upon appreciation of evidence observed that so calledoriginal Power of Attorney is not placed on record. The plaintiffhas specifically pleaded that she never executed Power of Attorneyin favour of Vasant. Admittedly, plaintiff was not confronted withPower of Attorney. Nothing is brought on record to show thatplaintiff was directly or indirectly party to the transaction or shehad knowledge of execution of sale deed by Vasant in capacity ofher Power of Attorney holder. In result, both Courts held that sale (7) sa-588-2015deed would not bind upon plaintiff’s right and approved her claimfor 1/7th share in suit property.8.In view of aforesaid concurrent findings of facts, nosubstantial question of law arises for consideration in this SecondAppeal. Hence, Second Appeal stands dismissed.9.In view of dismissal of Second Appeal, pending CivilApplications also stand disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025