High Court

Legal Reasoning

(1) SA-129-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.129 OF 2024WITHCIVIL APPLICATION NO.5893 OF 2024INSECOND APPEAL NO.129 OF 20241.Ashok Sudharshan GiriAge: 74 years, Occu: Agriculture2.Sunil Sudharshan GiriAge: 64 years, Occu: Agriculture3.Kusumbai Sudharshan GiriAge: 87 years, Occu: Household4.Shobha Anil GiriAge: 57 years, Occu: HouseholdAll R/o. Kasarkheda, Tal. & Dist. Latur...Appellants (Orig. Defendants)Versus1.Rajeshwar Shamrao ShindeAge: 48 years, Occu: Agril,2.Ram Prabhu Gunda GadageAge: 48 years, Occu: AgrilBoth R/o: Kasarkheda, Taluka,Dist. Latur..Respondents (Original Plaintiffs) …Mr. P. R. Katneshwarkar, Senior Advocate i/by Mr. Anuj AjayFulfagar, Advocate for the Appellants.Mr. Mukul Kulkarni h/f Mr. G. V. Mohekar, Advocate forRespondent No.1.… CORAM : S. G. CHAPALGAONKAR, J.DATE : 21st NOVEMBER, 2024.ORDER:- 1.The appellants/original defendants, impugns judgment anddecree dated 10.05.2024 passed by Principal District Judge, Laturin Regular Civil Appeal No.65/2017, thereby reversing judgment (2) SA-129-2024.odtand decree dated 30.03.2017 passed by 5th Joint Civil Judge, SeniorDivision, Latur passed in Regular Civil Suit No.320/2013.(Hereinafter, parties are referred as per their original status forthe purpose of convenience and brevity).2.The appellants are original defendants in Regular Civil SuitNo.320/2013. The suit has been instituted by respondents seekingrelief of declaration of ownership and perpetual injunction inrespect of land admeasuring 20R out of Gut No.132 situated atKasarkheda, Tal. Latur. Plaintiffs claims title over suit propertyon the basis of sale deed dated 30.08.2012 executed by vendorsnamely Bhagyashree Devendra Puri and Jaishree Mahesh Vibhute.3.It is plaintiffs claims that they are in enjoyment andpossession of the suit land. However, defendants / adjoining landholders started obstruction and interference in their possessionwithout right. 4.The defendants refuted plaintiffs’ claim contending thatvendors of plaintiffs had no title over suit property nor were they inpossession of the land. Defendants’ father had maintained illicitrelationship with one Amirabee. The vendors of plaintiffs i.e.Bhagyashree and Jaishree are born out of such relationship. Theyhad filed Regular Civil Suit No.241/2005 seeking partition and (3) SA-129-2024.odtseparate possession in respect of land in Gut No.132. The said suitwas decreed. However, Appeal is still pending. The defendantsfurther contend that they have filed Regular Civil Suit No.575/2012seeking declaration that sale deed dated 10.06.1998 executed bytheir father (Sudharshan) in favour of Amirabee @ Meerabai is nulland void and also sought decree of perpetual injunction againstplaintiffs and their vendors. 5.On the basis of rival claims put forth by parties, trial Courtframed issues, recorded evidence and finally dismissed suit holdingthat plaintiffs failed to prove ownership over the suit land and theyare not entitled for recovery of possession. However, in Appealfiled by the plaintiffs, Appellate Court upheld the title of plaintiffson the basis of registered sale deed dated 30.08.2012 and granteddecree for declaration of ownership of 20R land from Gut No.132,so also directed defendants to deliver possession to the plaintiffswithin one month.6.Mr. Katneshwarkar, learned Senior Advocate appearing forthe appellants contends that validity of plaintiffs sale deed dated30.08.2012 is subject matter of Regular Civil Suit No.575/2012instituted by the appellants. Similarly, the vendors of plaintiffshad instituted Regular Civil Suit No.241/2005 seeking partitionand separate possession against defendants. The said proceeding (4) SA-129-2024.odtis also pending for consideration at appellate stage. Unless issue oftitle of plaintiffs’ vendors is adjudicated, no decree for declarationof ownership and delivery of possession could have been passed bythe Appellate Court. He would further submit that Civil AppealNos.178/2011 and 180/2011 arising out of Regular Civil SuitNo.241/2005 were pending before First Appellate Court and nowsame is subject matter of Second Appeal No.632/2018 before thisCourt. Consequently, issue of title of vendors of plaintiffs issubjudice, hence, no definite conclusion regarding ownership ofplaintiffs can be drawn at this stage. Mr. Katneshwarkar wouldalso submit that since vendors of plaintiffs have instituted suit forpartition and separate possession, they cannot dispute thatSudharshan was not holding absolute title in respect of suitproperty which is ancestral in nature. Hence he was not competentto transfer definite share by any instrument to Amirbee. Accordingto Mr. Katneshwarkar, all these aspects have been ignored by FirstAppellate Court and decree passed by the Trial Court has beenerroneously reversed.7.Per contra, Mr. Mukul Kulkarni, learned Advocate appearingfor respondents/plaintiffs supports the impugned order. He wouldsubmit that defendants have not disputed title of Sudharshan inrespect of suit land situated in Gut No.132. He transferred 20Rland vide sale deed dated 10.06.1998 in favour of Meerabai. (5) SA-129-2024.odtConsequently, mutation entry no.445 was certified in her name.On death of Meerabai, her daughters Bhagyashree and Jaishreesucceeded property and transferred same in favour of plaintiffsunder registered sale deed dated 30.08.2012. The mutation entryno.1060 has been certified in the name of plaintiffs. Thedefendants have illegally objected title of plaintiffs and thendispossessed them. The Appellate Court has rightly appreciatedpleadings of the parties and evidence on record. Consequently,decreed the suit. The finding of fact recorded by First AppellateCourt need not be disturbed in this second appeal.8.Having considered submissions advanced and reasoningadopted by the Courts below, it cannot be disputed thatSudharshan was owner of the land in Gut No.132 situated atKasarkheda, Tal. Latur. He was father of plaintiffs vendor anddefendants. He executed sale deed dated 10.06.1998 in favour ofMeerabai (alleged second wife) and transferred ownership of landadmeasuring 20R in her favour. The mutation entry no.445 wascertified as per said transaction. Bhagyashree and Jaishree aredaughters of Meerabai from Sudharshan. After death of Meerabai,Bhagyashree and Jaishree derived title from their mother andexecuted sale deed dated 30.08.2012 in favour of plaintiffs. (6) SA-129-2024.odt9.It is true that defendants have filed Regular Civil SuitNo.575/2012 seeking declaration that sale deed dated 10.06.1998executed by Sudharshan in favour of Meerabai is null and void.However, merely because such suit is pending, plaintiffs cannot beprecluded from seeking declaration of their ownership based onregistered sale deed dated 30.08.2012. Needless to observe thatsuch declaration shall be subject to final outcome in Regular CivilSuit No.575/2012.10.It is pertinent to note here that Sudharshan i.e. defendants’father executed sale deed in favour of Meerabai in the year 1998.There is reference of such transaction in Regular Civil SuitNo.241/2005 instituted by Bhagyashree against defendantsclaiming relief of partition. The challenge to the sale deed executedby sudershan in favour of Meerabai is raised after a period of 14years. On the basis of such suit, title of Meerabai, derived underregistered sale deed dated 10.06.1998 Or after her death, herdaughters Bhagyashree and Jaishree cannot be doubted as long assale deed is not set aside by competent Court.11.Mr. Katneshwarkar, learned Senior Advocate submits thatSudharshan was not absolute owner of property for want ofpartition. He could not have transferred specific share in favour ofMeerabai. It is difficult to accept aforesaid contentions at this (7) SA-129-2024.odtstage, since Sudharshan has transferred specific portion in theyear 1998 under registered sale deed in favour of Meerabai. Sincethen, there exists mutation entry of separate possession ofMeerabai. There is nothing on record showing that mutation wasever challenged. Further, all such issues are now subject matter ofRegular Civil Suit No.575/2012 instituted by defendants and wouldbe considered and decided in that suit only. The fact remains thatsale deed dated 10.06.1998 stipulates delivery of possession of suitland to Meerabai and now sale deed dated 30.08.2012 alsodemonstrates transfer of specified share in favour of plaintiffs.There are long standing entries in revenue record indicatingaforesaid transfers.12.So far as pendency of Second Appeal No.632/2018 arising outof Regular Civil Suit No.241/2005 instituted by Bhagyashree forpartition and separate possession is concerned, it can be observedthat suit relates to partition of 80R land left behind in possession ofSudharshan after making transfers to various persons. The landwhich was already transferred by Sudharshan to Meerabai is notsubject matter of said suit. The plaintiff therein i.e.Bhagyashreebeing aggrieved by non-allotment of share to her by SudharshanGiri from survey no.132 and house property situated withinGrampanchayat limit filed that suit for partition. In that suit,defendants had specifically pleaded that there was previous (8) SA-129-2024.odtpartition between them and Sudharshan Giri had sold 20R land toMeerabai i.e. mother of Bhagyashree and Jaishreee. It appearsthat, First Appellate Court allowed Regular Civil AppealNo.178/2011 by defendants against decree in Regular Civil SuitNo.241/2005, holding that Meerabai was not legally wedded wife ofSudharshan. As such, Bhagyashree and Jaishree are not hislegitimate daughters. Apparently, decision in that proceedingwould not have impact on inter se right of the parties in presentsuit. However, such rights would be governed by the outcome ofRegular Civil Suit No.575/2012, which has been instituted,assailing sale deed dated 10.06.1998 on the basis of whichplaintiffs’ vendors have derived title. However, as rightly held bythe Appellate Court, plaintiffs are entitled for relief of declarationof ownership and perpetual injunction, as long as title of theirvendors is intact. Hence, no substantial question of law made outin this second appeal. 13.Second Appeal stands dismissed.14.In view of dismissal of Second Appeal, Civil Application doesnot survive and accordingly stands disposed of.(S. G. CHAPALGAONKAR) JUDGE Devendra/November-2024