High Court

Legal Reasoning

SA785-2013.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 785 OF 20131.Ramdas Dhudku PatilAge 51 years,Occu: Service,R/o Kailas Nagar, Near Kadodara Gaon,Plot No. 114, Udhana, Dist. Surat2.Vikram Dhudku Patil,Age 48 years, Occu: LabourR/o Navagaon, Near Railway Fatak,House No. 46, Shrinath Society,Udhana Yard, Dist. Surat3.Bapu Dhudku Patil,Age 47 years, Occu: LabourR/o Nandal Tq. Dist. Dhule4.Arjun Dhudku Patil,Age 43 years, Occu: LabourR/o Shramik Nagar, Satpur,Near Hanuman Mandir, Dist. Nashik5.Gangubai Asaram Patil,Age 46 years, Occu: Housework,R/o Bhabale, Tq. Shindkheda, Dist. Dhule6.Minabai Bapu Patil,Age 41 Years, Occu: Housework,R/o Kavathe, Tq. Sakri, Dist. Dhule7. Jijabai Fula Patil,Age 39 years, Occu: Housework,R/o Khalane, Tq. Shindkheda, Dist. Dhule...AppellantsVERSUS1.Sopan Ramsing Rajput (Jadhav)Age 52 Years, Occu: Agriculture,Page 1 of 7 SA785-2013.odt2.Jalindar Sopan JadhavAge 24 years, Occu: Agriculture,Both R/o Nane Tq. Sakri, Dist. Dhule...RespondentsMr. Subodh P. Shah, Advocate for the Petitioners,Mr. P. B. Patil and Mr. B.B. Jamadar, Advocate for the Respondents-AbsentCORAM : Y. G. KHOBRAGADE, J.Dated : 11th March, 2024O R D E R:-1.Present appeal under section 100 of the Civil Procedure Code isdirected against the judgment and decree dated 20.04.2011 passed by thelearned Ad-hoc District Judge-1, Dhule in Civil Appeal No. 48 of 2009,thereby confirmed the judgment and decree dated 12.02.2009 passed bythe learned Joint Civil Judge, Junior Division, Dhule in Regular Civil SuitNo. 15/2008.2. The appellants are the original plaintiffs and therespondents are original defendants in Regular Civil Suit No.15/2008.For the sake of convenience, I would like to refer the parties to thepresent appeal in their original capacity as plaintiffs and defendants,respectively.3.The plaintiffs had filed suit for declaration and possession inrespect of property Gat No.226/1 admeasuring 4H 18 R situated atvillage Nane Tq. & Dist. Dhule, which be referred to as the 'suitPage 2 of 7 SA785-2013.odtproperty'. The Plaintiffs contended that as per the revenue record,one Dhondibai Rajaram Patil was the original owner of the suitproperty, who had one son namely Babulal Rajaram Patil and onedaughter Bhatabai w/o Dhudku Patil. Shri Babulal Rajaram Patil wasunmarried. In the year 1984, Bhatabai Dhudku Patil died and BabulalRajaram Patil died on 25.12.1995. According to the plaintiffs, they arelegal heirs of deceased Bhatabai Dhudku Patil. After marriage,Bhatabai Dhudku went to her matrimonial home for cohabitation andby taking disadvantage of this fact, the deceased Babulal Rajaram Patilentered his name in the revenue record after death of Dhondibai whodied on 27.11.1987. Defendant No.1 shown Babulal Rajaram Patil ashis uncle and got his name entered into revenue record in collusionwith Talathi. Accordingly, the names of defendant Nos.1 and 2 aremutated in the revenue record. After noticing this fact, the plaintiffshave issued notice to the defendants on 19.09.2007, thereby callingupon the defendants to cancel the revenue entries which have beentaken in the revenue record and to handover the possession of the suitland. The defendants replied to the said notice and denied thatBhatabai w/o Dhudku Patil was legal heirs of Dhondibai. BabulalRajaram Patil never sold the suit land. So also he had no right toalienate the said property in favour of any person. The Plaintiffsfurther claimed that the defendants were never in possession of the suitPage 3 of 7 SA785-2013.odtland during the life time of Babulal and Dhondibai Rajaram. 4.The Defendants filed their written statement at Exh.11 andresisted the claim of the plaintiffs. The defendants have not disputedabout the death of Babulal Rajaram. The defendants contended that theplaintiffs are not concerned with the suit property, so also, whetherRajaram or Bajirao were husband of Dhondibai is not clear. TheDefendants admitted the description of the suit property, howeverdenied the claim of the plaintiffs. The defendants disputed about nameof father and husband of deceased Dhondibai. The defendantsadmitted about the death of Babulal Rajaram Patil, the son ofDhondibai, in the year 1995. The defendants further contended thatBabulal was never in possession of the suit property at any time before.However, their father was in possession of the suit property for pastmore than 40 years. The defendants further contended that initiallythe suit land was allotted as Survey No.164, but subsequently it was re-numbered as Survey Nos. 163 and 164, which then merged into GatNo. 226 under the consolidation proceedings. The defendants furthercontended that no entries in revenue record were taken in the nameof Babulal Rajaram Patil. So also, plaintiffs are not legal heirs ofDhondibai Rajaram Patil or Babulal Rajaram Patil. Hence prayed fordismissal of the suit.Page 4 of 7 SA785-2013.odt5.On the basis of rival pleadings of the parties, the learned trialcourt framed nine issues at Exh. 13. To prove the claim, the plaintiffsfiled affidavit at Exh. 22 and also adduced evidence of Bapu RajdharPatil at Exh. 3 and closed evidence. During the course of trial, theplaintiffs produced 7/12 extract regarding suit land vide Exh. 23 for theyear 2007-2008, certified copy of mutation entry bearing no. 1875 videExh. 24 dated 02.01.2001, notice dated 30.10.2007 vide Exh. 26 andcertified copy of mutation entry no. 1694 vide Exh. 27 dated02.11.1994. Per contra, the defendants have filed pursis Exh. 45 anddecided not to adduce evidence. The defendants have filed certifiedcopies of mutation entries No. 1610 at Exh. 30, No. 1694 at Exh. 31,No. 1576 at Ex,.32, No. 1875 at Exh. 33, No. 1592 at Exh. 4 andcertified copies of 7/12 extracts vide Exhs. 36, 37, Exh. 38, Exh. 43 andEx.44 and property extract No. 107 at Exh.35 regarding mutation entryno. 1610.6.On 12.02.2009, the learned trial court passed the judgmentand order holding that, though the plaintiffs proved that DhondibaiRajaram Patil was the owner of suit land, however, the plaintiffs failedto prove that Bhatabai Dhudku Patil had acquired the suit propertybeing sole heir of Dhondibai Rajaram Patil. So also, the plaintiffs failedto prove that they acquired title of the suit property being legal heirs ofPage 5 of 7 SA785-2013.odtBhatabai Dhudku Patil.7.On perusal of the record, it appears that on 20.04.2011, thelearned first appellate court passed the judgment holding that as perevidence of Plaintiff No.1 Ramdas Dhudku Patil at Exh. 22, theappellants /plaintiffs do not have any documentary evidence toestablish their relationship with the deceased Dhondibai. So also, thePlaintiffs admitted that they do not have any documentary evidence toprove that the deceased Babulal was their maternal uncle i.e. brother ofBhatabai. Therefore, the appellants/plaintiffs failed to prove their rightover the suit land and they cannot claim right over the suit land merelyby issuing notice Exh. 25. Further, the plaintiffs examined wittinessBapu Rajdhar Patil at Exh. 39, however, this witness deposed that hedoes not know the name of husband of deceased Bhatabai and admittedthat he had no idea about the father of Dhondibai and how BhatabaiDhudku and Babulal Rajaram died and in which year they died. 8.Since the plaintiffs are claiming for declaration as owner ofthe suit property by virtue of succession or inheritance, the burden liesupon the plaintiffs to prove that they are either Class- 1 or Class- 2 legalheirs under the Provisions of Hindu Succession Act. However, theplaintiffs failed to prove their heirship, either by succession or therelationship between them and Babulal as well as Bhatabai. Therefore,Page 6 of 7 SA785-2013.odtthe learned trial court dismissed the suit which has been confirmed bythe learned appellate Court by the impugned judgment and order.9.The plaintiffs have not pointed out existence of any substantialquestion of law to interfere with the concurrent findings recorded byboth the courts below. Therefore, I do not find any reason to interferewith the findings recorded by both the courts. Hence, the presentappeal is liable to be dismissed.10.In view of the above, the appeal is dismissed. Parties to beartheir own costs.( Y. G. KHOBRAGADE, J. )JPChavanPage 7 of 7