Nitin Babaso Chougule & Anr. v. Amar Anant Nitawe & Ors.

Mr.N.J.Patil for the appellants. Mr.Amit Borkar for the respondent nos.1 & 2. ---- CORAM : MRS.MRIDULA BHATKAR, J. DATE : 1st NOVEMBER, 2012. P.C. :- 1 This Second Appeal is directed against the judgment and order dated 6.1.2010 passed by the First appeal court. In regular civil suit the appellants in the Second Appeal are the un-successful plaintiffs who have filed RCS 470 of 2001 for declaration and injunction in respect of property ie. survey no.6, Hissa no.19 admeasuring 84 R plus 5 pot kaharabe, total 89 R including 5 R pot kharabha from district Kolhapur. The plaintiffs sought declaration in respect of the sale deed dated 21.5.1982 which was executed by 2 SA140.10 Babasaheb Chougule the father of the appellants and Amar Anant Nitwa ie respondent no.1 (defendant no.1). The trial court granted relief of declaration by holding that the said sale deed was bogus and void. However, the relief of injunction was rejected by the trial court. Against the said order dated 30.11.2006 the original defendant no.1(respondent no.1) filed appeal in the Dist. Court challenging the decree of declaration and the original plaintiffs also filed cross- objections challenging the denial of the relief of injunction granted by the trial court. Appeal filed by the respondent no.1 (defendant no.1) was allowed and cross-objections filed by the appellant (plaintiff) were dismissed. Hence, this Second Appeal. 2 The suit land was an ancestral property of one original ancester Annu chougule who had wife Sonabai and son Babasaheb, the father of the appellant. As per the case of the plaintiffs in the year 1955 Annu Chougule partitioned the suit property exclusively in favour of Babasaheb and then Babasaheb in the year 1984 partitioned the suit property amongst his four sons that is present appellants in equal shares. Thus as per the plaintiffs, they were legally owners and were in possession of the suit property since

1984. It is the case of the plaintiffs that in the year 1974 these plaintiffs have given a public notice informing the public at large that their father was addicted and therefore, they are not liable or bound 3 SA140.10 by the transactions if any made by Babasaheb. Plaintiffs therefore, challenged the sale deed which has taken place between the respondent no.1 and deceased Babasaheb and Sonabai on

21.5.1982. 3 The learned Counsel for the appellants submitted that the respondents in their written statement have raised a point of partibility of the suit land. The suit land being Inam land is not partible and that issue was not framed either by the trial Court or point was not determined by the first Appeal court. He further submitted that the judgment of the first appellate court is perverse as the point of legal necessity is not considered by the appeal court. He argued that there was no legal necessity to Babasaheb to dispose of the suit land in favour of the respondent no.1. He further submitted that the trial court has rightly held that the sale deed was without any consideration and therefore, bogus. It is submitted that Exhibit-82 ie deed of partition which was executed by Annu Chougule that is grand-father of the appellants in the year 1955 was wrongly exhibited and not properly appreciated and was given unnecessary weightage. He further submitted that on the point of possession, both the trial court and the appeal court had gone wrong in appreciating the evidence produced by the appellants when no evidence is tendered by the respondents in respect of their possession of the suit land. On 4 SA140.10 the point of impartibility he relied on the judgment in Nagesh Bisto Desai Vs. Khando Tirmal Desai reported in AIR 1982 SC 887. 4 The learned Counsel for the respondents submitted that the appellants neither in the plaint nor in the cross-objections have pleaded anything about the status of the land and its impartibility. He submitted that this issue cannot be taken up at this stage. He further submitted that whether it is inam land or not that is to be decided by the revenue authorities and the decision given by the first forum of that authority is appelable. He pointed out that the said land was re- granted in the year 1971 in the name of Sonabai & Babasaheb. He submitted that there is no substantial question of law involved. He submitted that on the point of possession the respondents have tendered evidence of receipts of the sugar crop which was standing in the suit land and a statement recorded under Rule 31 of Maharashtra Land Revenue Rules, wherein the respondents have stated about the standing crop in the suit land and the receipts of the sale of sugar crops issued by the sugar factory. 5 Much is argued by the learned Counsel of the appellants on the point of partibility and impartibility of the suit land. The Supreme Court in the case of Nagesh Bisto Desai (supra) held that mere fact that estate is impartible does not make it separate and 5 SA140.10 exclusive property of the holder. Thus, this land even if at all it was an inam land, it was re-granted in the year 1971 in the name of Babasaheb and Sonabai both. Nothing is pleaded about the effects of re-grant or what type of inam it was. In the absence of pleading of inam land and partibility and impartibility, this cannot be considered as a substantial question of law in the present Second Appeal. The issue involved in the matter is short whether Babasaheb was the exclusive owner of the suit land and whether the impugned sale deed is void ? On perusal of the judgment of both the courts and after going through the record produced by the parties, it is found that Exhibit-82 ie the deed of partition executed by the original ancestor in the year 1955 is produced by the appellants as appellants wanted to rely on it. Accordingly the evidence was also tendered. The first appeallate court has meticulously read and interpreted the said partition deed ie Exhibit-82 and has rightly held that both Babasaheb and Sonabai were given 8 aana share in the said property. Thus, Babasaheb was not the exclusive owner of the property. The case of the appellants stands on the footing that Babasaheb was the exclusive owner of the property and thereafter he partitioned the property in the year 1984. However, once the fact that Babasaheb was not the exclusive owner of the suit property was proved with relevant cogent evidence, then the case of the plaintiffs cannot stand. The appreciation of evidence and of the documents cannot be faulted 6 SA140.10 out. Other instances are discussed and examined by the court while believing the fact of legal necessity. There are other previous instances of the sale of nearly 70 R from the suit land by Babasaheb to Patil brothers prior to 1982. Thus, if at all the entire suit land was 89 R including 5 R potkharaba and if Sonabai and Babasaheb were having 8 aanas share in the property and 70 R land was sold by Babasaheb then question arises whether Babasaheb had any right on the remaining land ie suit land ? Thus the remaining property, it appears was sold by Babasaheb and Sonabai to respondent no.1. Considering the previous instances of sale of the suit land the submissions of the learned Counsel that there was no legal necessity and that fact was not appreciated properly by the appeal court, cannot be accepted. Further, Sonabai has stepped into witness box and she deposed that property was sold for consideration. Thus the objections which were raised by the appellants before the first Appeal court were property answered in the judgment. 6 On the point of possession, the submissions of the learned Counsel for the respondents are taken into account and on the other hand the evidence of possession was not brought before the court by the appellants. Thus, the plaintiffs who are seeking relief of injunction in respect of the suit property ought to have produced evidence on the point of possession. As no evidence was produced, 7 SA140.10 both the courts gave concurrent findings and have rejected the relief of injunction. Thus no substantial question of law is made out by the appellants. Hence, appeal is dismissed. 7 In view of dismissal of the appeal, Civil Application is also