High Court
Legal Reasoning
{1} FA-2304-2016 (J)IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2304 OF 2016WITHCIVIL APPLICATION NO. 8515 OF 2016WITHCIVIL APPLICATION NO. 13471 OF 2016INFIRST APPEAL NO. 2304 OF 2016WITH FIRST APPEAL NO. 2305 OF 2016WITHCIVIL APPLICATION NO. 8516 OF 2016INFIRST APPEAL NO. 2305 OF 2016* Uttam Bhimashankar Sulakhe (Died Lrs)1.Smt. Chandrakala Uttam SulakheAge- 70 years, Occu- Nil,R/o. House No. 291/1m Shivyog,by the side of Ballaleshwar Ganesh Temple,Tq. Trimbakeshwar, Dist. Nashik.2.Bhausaheb Uttam SulakheAge- 46 years, Occu- Agri.,R/o. As above. 3.Smt. Shobha Kumar Lohagaonkar,Age- 44 years, Occu- HouseholdR/o. House No. 178, Shantaie Niwas,Behind Ketkimata, Temple, KushawartChowk, Tq. Trimbakeshwar, Dist. Nashik.4.Sow. Prabhawati w/o Rangnath AradhiAge- 43 years, Occu- Household,R/o. House No. 189, Shivdarshan Wada,Behind Ketkimata Temple, KushawartChowk, Trimbakeshwar, Dist. Nashik.5.Balasaheb s/o Uttam SulakheAge- 42 years, Occ- Agri & duties of Brahmin,Bhagyawant Punde {2} FA-2304-2016 (J)R/o. House No. 326, Shreya Safalya,Infront of Jain Temple, Gokuldas Lane,Tq. Trimbakeshwar, Dist. Nashik.6.Sunil s/o. Uttam SulakheAge- 36 years, Occ. Duties of Brahmin,R/o. House No. 219/1, Shivyog,By side of Ballaleshwar Ganesh Temple,Tq. Trimbakeshwar, Dist. Nashik ...APPELLANTS[Ori. Claimants/Party No. 2]VERSUS1.The State of MaharashtraFrom the Special Land Acquisition OfficerJayakwadi Project No. 2, Beed.Tq & Dist. Beed.*Dinkar Sakharam Sulakhe (Died Lrs)2.Anil s/o Dinkarrao Sulakhe,Age- 28 years, Occ- Agri.,R/o. Fulsangvi, Tq. Shirur Kasar, Dist. Beed,Now at Trimbakeshwar, Dist. Nashik.3.Mangalbia w/o Dinkar SulakheAge- Major, Occ- Household,R/o. As above.4.Chhaya Raju KulkarniAge- 22 years, Occ- Household,R/o. Taru Pimpalwadi, Tq. Paithan,Dist. Aurangabad.5.Sanjay Dinkar SulakheAge- 50 years, Occ- Agri.,R/o. Fulsangvi, Tq. Shirur Kasar,Dist. Beed.6.Madhukar Sakharam SulakheAge- 50 years, Occ- Agri.,R/o. At Present, Panch Aali Trimbakeshwar,Dist. Nashik. ...RESPONDENTS [Orig. Party No. 1]Bhagyawant Punde
Legal Reasoning
{3} FA-2304-2016 (J)Mr. P.V. Mandlik, Senior Advocate i/b. Mr. Pratap P. Mandlik, Advocate for appellantsMr. Vilas P. Savant, Advocate for respondents No. 2 to 5Mr. B.B. Bhise, AGP for State....... CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON: 18th JULY, 2024 PRONOUNCED ON: 22nd AUGUST, 2024JUDGMENT:1.Both these appeals filed by appellants/originalclaimants/Party No. 1 challenge common judgment and awarddated 16.04.2016 passed by learned District Judge-2, Beed, inLand Acquisition Reference Nos. 60 of 2007 and 61 of 2007.2.For the sake of convenience, appellants are referredto as Party No. 2 and respondents No. 2 to 6 are referred to asParty No. 1, as are referred in the references.3.House Nos. 31/52 and 139/55 and portion of landfrom Gut Nos. 65, 66, 69 and 71 of village Fulsangvi, Taluka-Shirur Kasar was acquired for Fulsangvi Storage Tank, OldGaothan from Fulsangvi, Taluka- Shirur Kasar, Dist. Beed, inwhich both the parties had their share. Towards acquisition ofhouse property compensation of Rs. 5,25,582/- and for landcompensation of Rs. 2,16,000/-was determined by the SpecialLand Acquisition Officer (for short “SLAO”).Bhagyawant Punde {4} FA-2304-2016 (J) Dinkar Sakharam Sulakhe (Party No. 1) filed Writ PetitionNo. 8201/2016 and Civil Application No. 1761/2007. This Courtpassed order on civil application on 10.04.2007 and directed thematter to be referred to the Civil Court under section 30 of theL.A. Act, for apportionment of share of parties in respect ofcompensation awarded in land acquisition proceedings.Accordingly, Land Acquisition Reference No. 60/2007 wasregistered in respect of house property and Land AcquisitionReference No. 61/2007 was registered in respect of agriculturallands.4.Party No. 1 and Party No. 2 filed their respectiveclaims. Both the parties filed joint purshis stating that since boththe references arise from same proceeding and they are betweensame parties, therefore, both references be kept together for thepurpose of inquiry and recording of evidence. Accordingly, bothreferences were clubbed together and evidence is recorded inLand Acquisition Reference No. 60/2007 by treating it as mainreference.5.Dinkar and Madhukar of Party No. 1 claimed thatthey are entitled for 1/3rd share each from the amount ofcompensation awarded by SLAO. Since, SLAO did not makeBhagyawant Punde {5} FA-2304-2016 (J)apportionment as claimed by them, Party No. 1 therefore filedwrit petition, in which direction was given to register landacquisition references to get apportionment done. Party No. 1claimed that they are entitled for 1/3rd share in thecompensation amount on the ground that original owner Narharwas having two sons Bhimashankar and Sakharam. Therefore,they both had ½ share each (8 annas) in the property.Sakahram left behind his legal heirs Ganpat, Uttam, Dinkar,Madhukar and Sulochana. Ganpat died issue less leaving behindhis wife Kamalbai, who has also died. Therefore, at the relevanttime, Uttam, Dinkar and Madhukar were holding 1/3rd shareeach in the acquired lands. As per apportionment of shareclaimed by Party No. 1, entries were taken in the 7/12 extract,but Party No. 2 Uttam contended that he was adopted byBhimshankar and being his legitimate adopted son, he is entitledfor ½ share (8 annas) in the amount of compensation. It isfurther claimed that deceased Kamalbai had filed Regular CivilSuit No. 28/1991 for partition in the Court of learned Civil Judge,Senior Division, Beed, which was pending from the year 1991 to2000. Subsequently, it was transferred to learned Civil Judge,Junior Division, Georai and renumbered as Regular Civil Suit No.308/2000. On death of Kamalbai on 22.02.2001 the suit abated.Bhagyawant Punde {6} FA-2304-2016 (J)Party No. 2 Uttam has no right to revive the suit since it isabated. The objection taken by Party No. 2 is only with a view todelay payment of amount of compensation to Party No. 1. Theclaim of Party No. 2 is liable to be rejected and it is required tobe held that Party No. 2 has failed to prove that he is adoptedson of Bhimashankar and 1/3rd share in the amount ofcompensation be allotted to Party No. 1.6.On the other hand, Party No. 2 contended that hebeing adopted son of Bhimashankar is entitled for one half sharein the amount of compensation. Late Bhimashankar adopted himas per adoption deed dated 01.06.1957, being son of his brotherSakharam. Therefore, Party No. 2 Uttam and Shashikalabai arerespective son and daughter of late Bhimashankar Sulakhe. Asper registered sale deed, Shashikalabai sold her share to PartyNo. 2 Uttam and accordingly their names have been mutated aslegal heirs vide mutation entry No. 55 dated 13.02.1961 andmutation entry No. 77 dated 08.06.1965. Therefore, Party No. 2claimed that he is owner of one half share amongst themselves.In respect of mutation entries and entries in therevenue record, Party No. 2 contended that Party No. 1Madhukar and deceased Dinkar had made mutation entry No. 4Bhagyawant Punde {7} FA-2304-2016 (J)dated 22.12.1981 on the basis of alleged oral partition, behindhis back, in collusion with revenue authorities and shownrespective 1/3rd share and got the Mahasul Patrak and 7/12extract prepared. Party No. 2 filed appeal against said entrybearing Appeal No. 2006/ROR/121. Sub Divisional Officer hascanceled the said mutation entry and by order dated 31.05.2007mutation entry No. 1247 has been sanctioned. Therefore, byrelying on the adoption deed Party No. 2 claimed half share inthe amount of compensation. 7.Reference Court after going through pleadings of theparties framed issue i.e. “Does claimant No. 3 Uttam prove thathe has half share in the amount of award passed in the landacquisition proceeding by the Land Acquisition Officer?” Thesame is answered in negative and objections taken by Party No.2 Uttam were turned down. Apportionment amount ofcompensation to the extent of 1/3rd share each to Madhukar,Dinkar and Uttam by SLAO is held proper and same wasconfirmed. Being aggrieved by the same, Party No. 2 has filedthese appeals.8.Heard learned Senior Advocate for Party No. 2,learned advocate for Party No. 1 and learned AGP for State.Bhagyawant Punde {8} FA-2304-2016 (J)9.Learned Senior Advocate would submit that in theReference Court application Exhibit-47-D was filed by Party No. 2contending that in partition suit bearing Special Civil Suit No.28/1991 filed by Kamalbai w/o Ganpat vs. Uttam and others,partition as well as adoption is admitted and proved in theevidence led by the parties. Since, Uttam is in advance age, deafand dumb and not in a position to hear anything, certified copiesof evidence recorded in the said suit may be treated and read asevidence in the references. Said application was allowed by orderdated 29.09.2014 and statements recorded in earlier suit anddocuments from the said suit produced by Party No. 2 werepermitted to be read as evidence. He therefore submits thatParty No. 2 has proved the factum of partition and adoption, onthe basis of the depositions and documents and it is notnecessary for him to lead any evidence in support of his claim.This aspect is ignored by the Reference Court while rejecting theclaim of Party No. 2. Reference Court erred in holding that PartyNo. 2 has failed to prove the adoption deed and that he has ½share in the compensation amount. He further submitted thatvoluminous documents in the form of revenue record aresubmitted by Party No. 2 to prove his claim. However, thesedocuments are ignored by Reference Court. Further submissionBhagyawant Punde {9} FA-2304-2016 (J)is that even Party No. 1 did not lead their evidence, butexamined GPA Seela w/o Dinkar Sulakhe. However, as per ratioin Janki vs. Indusind Bank Limited, AIR 2005 SC 439, power ofattorney holder cannot depose in the place of principal andtherefore her evidence is inconsequential. She was not havingany knowledge about adoption and equal partition between twobrothers i.e. Bhimashankar and Sakharam. Considering thedocuments placed on record and depositions recorded in SpecialCivil Suit No. 28/1991, which were to be read in the evidence inthe references, Party No. 2 Uttam is entitled for half share. Hetherefore submits that first appeals may be allowed and it beheld that Party No. 2 Uttam and his dependents are entitled forhalf share in the compensation amount.10.Per contra, learned advocate for Party No. 1supported the impugned common judgment and award passedby the Reference Court. He strenuously submitted that Party No.2 has miserably failed to prove the alleged adoption. Accordingto him, the alleged adoption deed dated 01.06.1957 is notregistered deed and the alleged sale deed executed in favour ofParty No. 2 Uttam by Shashikalabai is dated 11.10.1962,wherein age of Uttam is shown as 26 years. Therefore, it is clearBhagyawant Punde {10} FA-2304-2016 (J)that Uttam was of 21 years at the time of alleged adoption on01.06.1957. As per Section 10 of Hindu Adoptions andMaintenance Act, 1956, a person below the age of 15 years hasto be adopted unless there is a custom or usage applicable tothe parties which permits adoption of persons, who havecompleted 15 years of age. He further submitted that entries inthe record of rights and mutation entries did not confer title. Hesubmitted that proceeding under section 30 of the L.A. Act issummary proceeding, in spite of that opportunity was given tothe parties to lead evidence and thereafter only the judgment ispassed. He submitted that concurrent finding of facts recordedby SLAO and Reference Court are not liable to be interfered within the facts of the present case. There is no merit in the firstappeals and same may be dismissed.11.Heard learned Senior Advocate for Party No. 2,learned advocate for Party No. 1 and learned AGP for State atlength. Perused the record.12.For better understanding of pleadings of the partiesand their respective claims and to decide issue regardingapportionment of respective shares, Reference Court has givenfamily tree of original owner of the property namely NarharBhagyawant Punde {11} FA-2304-2016 (J)Sulakhe, as follows:Narhar Sulakhe ------------------------------------------- SakharamBhimashankar @ Bhivudev (died)--------------------------------------------------Ganpat Uttam Dinkar Madhu Sulochanabai(Died) ---------------------------------Shashikala UttamKamalbai (adopted son) 13.Since, Party No. 2 claimed that he was adopted sonof Bhimashankar and he has ½ share in the compensationamount, burden was on him to prove the factum of adoption andthat he had ½ share in the compensation amount. Party No. 2has placed reliance on the order passed below Exhibit-47 bywhich according to him documents sought to be produced by himfrom the previous suit were permitted to be read as evidence inthe reference.14.Application Exhibit-47 is allowed by the ReferenceCourt by following order:ORDER1)Application Exh. 47 is allowed.2)Documents sought to be produced along with Exhs. 34 and 35 are permitted to be read as evidence in this case.Bhagyawant Punde {12} FA-2304-2016 (J)3)It shall be open for both the parties to argue as tohow the said documents should be appreciated by this Court at the stage of final hearing.15.Clause 3 of the operative order quoted above clearlykeeps the question of admissibility and proof of documents filedalong with Exhibits-34 and 35 open, to be decided at the stageof final hearing.16.Along with Exhibit-34 and 35 Party No. 2 has placedon record deposition of Uttam recorded in Special Civil Suit No.28/1991, adoption deed (Exhibit-128), mutation/ revenueentries claimed to have been taken pursuant to the adoptiondeed and sale deed executed by Shashikalabai in favour ofUttam.17.Admittedly, Special Civil Suit No. 28/1991 was filedby Kamalbai Sulakhe against Party No. 1 and 2 for partition andseparate possession of the ancestral property. In that suit,deposition of Uttam (Party No. 2), Uttam Patwari, a witness tothe adoption deed, Dinkar Sulakhe (Party No. 1) were recorded.In the said suit, issues were framed by Trial Court and issue No.2 and 8 were as follows:2)Whether plaintiff proves that defendant No. 1is an adopted son of deceased Bhimashankar?Bhagyawant Punde {13} FA-2304-2016 (J)3)……..8)Whether defendant No. 1 proves that he isentitled to half share in the suit properties exceptsuit Gut No. 32?18.Indisputably, said suit abated on the death ofKamalbai on 22.02.2001. Hence, no decision on merit isrendered in the said suit.19.Section 33 of Indian Evidence Act provides forrelevancy of certain evidence for proving in subsequentproceeding, the truth of facts therein stated, which needs to beconsidered for appreciating submission of learned SeniorAdvocate for Party No. 2 that evidence recorded in Special CivilSuit No. 28/1991 and documents from that suit i.e. adoptiondeed, mutation/revenue entries and sale deed executed byShashikalabai in favour of Uttam are sufficient to prove adoptionof Uttam by Bhimashankar and hence he is entitled for ½ sharein the compensation amount.Section 33 of Indian Evidence Act, reads thus:“33.Relevancy of certain evidence for proving, insubsequent proceeding, the truth of facts thereinstated.- Evidence given by a witness in a judicialproceeding, or before any person authorised by law totake it, is relevant for the purpose of proving, in asubsequent judicial proceeding, or in a later stage ofthe same judicial proceeding, the truth of the factswhich it states, when the witness is dead, or cannot beBhagyawant Punde {14} FA-2304-2016 (J)found, or is incapable of giving evidence, or is kept outof the way by the adverse party, or if his presencecannot be obtained without an amount of delay orexpense which under the circumstances of the case,the Court considers unreasonable Provided- that the proceeding was between the sameparties or their representatives in interest;that the adverse party in the first proceeding hadthe right and opportunity to cross-examine;that the questions in issue were substantially thesame in the first as in the second proceeding.”20.From plain reading of Section 33 of Indian EvidenceAct it is clear that evidence given by a witness in a judicialproceeding, is relevant for the purpose of proving, in asubsequent judicial proceeding, the truth of the facts which itstates, when the witness is incapable of giving evidence.However, Section 33 does not dispense with proof of evidencegiven by a witness in a judicial proceeding. It is well settled thatmere admission of document in evidence does not amount to itsproof. Therefore, documentary evidence is required to be provedin accordance with law. [Vide H. Siddiqui (Dead) by L.Rs. Vs. A.Ramalingam, AIR 2011 SC 1492].21.In this case, Party No. 2 has miserably failed to provehis claim that he is adopted son of Bhimashankar. It is wellsettled that strict proof is necessary for proving adoption, fact ofBhagyawant Punde {15} FA-2304-2016 (J)adoption has to be proved including essential ceremony ofadoption. There appears substance in the contention of Party No.1 that in view of Section 10 of Hindu Adoptions and MaintenanceAct, a person who is under 15 years of age may be adopted.Party No. 2 claimed that alleged adoption has taken place on01.06.1957, whereas sale deed executed by Shashikalabai infavour of Party No. 2 is dated 11.10.1962, wherein the age ofParty No. 2 is shown as 26 years. Thus, Party No. 2 was of 21years of age at the time of alleged adoption, which is contrary tosection 10 of Hindu Adoptions and Maintenance Act.22.Party No. 2 has failed to prove factum of adoption byleading evidence and therefore has failed to discharge burden onhim. Reference Court is justified in recording a finding that“mere existence of adoption deed itself would not prove the factof adoption. The fact of adoption is required to be proved.” 23.Inquiry under section 30 of the L.A. Act is asummary proceeding, however, Reference Court had givenopportunity to both the parties to lead their respective evidence.Except producing documents in the form of depositions recordedin the previous suit, which was not decided on merits, adoptiondeed, revenue/mutation entries and sale deed executed byBhagyawant Punde {16} FA-2304-2016 (J)Shashikalabai in favour of Uttam, Party No. 2 has not led anyevidence to prove factum of adoption and partition and failed todischarge burden on him to prove that he was adopted son ofBhimashankar and hence was entitled for ½ share in thecompensation amount. Legal position is settled thatmutation/revenue entries do not confer title on a party. Hence,mutation/revenue entries relied upon by Party No. 2 do notfurther his case.24.Reference Court has properly appreciated theevidence on record and has rightly reached to a conclusion that“party No. 2 has failed to discharge the burden in the proceedingthat Uttam being an adopted son of Bhimashankar, is entitled toone half share in the amount of compensation.” 25.Reference Court has given proper reasons whilerejecting the claim of Party No. 2. No jurisdictional error or errorof law is committed by the Reference Court while passing theimpugned judgment and award. First Appeals being devoid ofmerit are dismissed.26.In view of disposal of first appeals, pending civilapplications are disposed of. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde