1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 75 OF 1989 1. Sonaji s/o Ganpati Khade, age 55 years, 2. Pandharinath s/o Ganpati Khade, age 50 years, Both agriculturists r/o Vanjarwadi U/v Rajuri Tahsil, Beed, District Beed. ...Appellants (Orig.Deft.Nos.1 & 2) VERSUS 1. Ashruba s/o Gopala Tandale, age 55 years, 2. Dashrath s/o Gopala Tandale, age 50 years, 3. Govind s/o Gopala Tandale, age 45 years, 4. Mithu s/o Gopala Tandale, age 40 years, All agriculturists r/o Vanjarwadi U/v Rajauri Tahsil, Beed, District Beed. ...Respondents (Orig.Plaintiffs) 2 ..... Shri M.G.Deokate, advocate holding for Shri P.R.Deshmukh advocate for the appellants Shri Prashant Deshmukh, advocate for the respondents. ..... Coram : Shrihari P. Davare, J. Date of reserving the judgment : 03.07.2009 Date of pronouncing the judgment : 15.07.2009 J U D G M E N T : 1 The appellants are the original defendant nos. 1 and 2 and the respondents are the original plaintiffs. 2 In the present Second Appeal, the challenge is to the judgment and order passed by the learned District Judge, Beed in Regular Civil Appeal No. 143 of 1980 on 21.6.1988, confirming the judgment and decree passed in Regular Civil Suit No. 262 of 1978 by the learned 2nd Joint Civil Judge, Junior Division, Beed on 30.6.1980. 3 The factual matrix in brief are that the plaintiffs/respondents had instituted Regular Civil Suit No. 262 of 1978 against the defendants/appellants for declaration of their 3 title to the suit land and also for permanent injunction requesting to restrain the defendants from obstructing their possession of the suit land. There were two lands bearing Survey Nos. 289/U admeasuring 1 acre 25 gunthas and Survey No.290/UU admeasuring 1 acre situated at Vanjarwadi under village Rajuri (Bk.). Both the Survey Nos. were divided by river named as “Chartha” which flows from south to north and by way of the said river 2 pieces of lands were formed, one is the western piece and the other is eastern piece. 4 The deceased father of the plaintiffs, namely Gopal Hari Tandale had 4 annas share in each of both the said lands. He sold 2 annas share each in these two lands to defendant no.1 then minor on 10 Behman 1348 Fasli i.e. 17th December, 1938 A.D. for Rs.500/- through registered sale deed and since defendant no.1 was minor his mother Thakubai represented him. Accordingly remaining 2 annas share in each of the said lands remained with Gopal Hari Tandale. At the time of preparation of Khasara Patrak, the said 2 annas share each of defendant no.1 was given Survey Nos. 289/E and 290/AA. 5 After death of Gopal Hari Tandale, the plaintiffs became the owners of the remaining 2 annas share each in these two 4 lands by way of succession. Defendant no.1 has not disputed plaintiffs’ possession and title in respect of 2 annas share in these two Survey Nos. 289 and 290 adjoining to the east of Chartha river. Moreover, the plaintiffs have also not disputed defendant no.1’s possession and title to the portion in Survey No. 290 in northern part situated on the western end. Hence, the subject matter of the suit land was the portion adjoining to the east of Chartha river. According to the plaintiffs, this disputed portion was not sold to defendant no.1 by their father Gopal Hari Tandale. It is the case of the plaintiffs that the said disputed portion of land had been in possession of their father Gopal Hari Tandale during his life time and since his death the plaintiffs are in possession thereof. It is case of the plaintiffs that the defendants have no right, title or interest in the said disputed land. The plaintiffs contend that they grew Bajara crop in the disputed land, but the defendants challenged their title in the disputed land and attempted to obstruct their possession on 24.10.1978. Hence, the plaintiffs filed Regular Civil Suit No. 262 of 1978 for the prayers as set out therein, which are mentioned hereinabove. 6 The defendant nos. 1 and 2 opposed and resisted the suit claim and denied the plaintiffs’ title and possession of the disputed land. According to them, 2 pieces of Survey No. 290 5 were sold to defendant no.1 by the plaintiffs’ father Gopal Hari Tandale under registered sale deed. Out of the said 2 pieces, one piece is the disputed land. They contend that they have title and possession in respect of the disputed land, which is numbered as piece no.9 in the map of Survey No. 290. Alternatively, they contend that they are in adverse possession of the disputed land touching the western bank of Chartha river. 7 Considering the rival submissions and also after assessment of the evidence adduced and produced by the parties, the learned 2nd Joint Civil Judge, Junior Division, Beed decreed the said suit in favour of the plaintiffs vide judgment and decree passed on 30.6.1980 and thereby declared plaintiff nos. 1 to 4 as the owners of the suit property and defendant nos. 1 and 2 were restrained permanently from obstructing the suit property of plaintiff nos. 1 to 4. 8 Being aggrieved and dissatisfied by the said judgment and decree dated 30.6.1980, original defendant nos. 1 and 2 preferred Regular Civil Appeal No. 143 of 1980 before the learned District Judge, Beed and thereby assailed the said judgment and decree passed in Regular Civil Suit No. 262 of 1978. 6 9 After considering the rival contentions and impugned judgment and decree passed by the 2nd Joint Civil Judge, Junior Division, Beed on 30.6.1980 and also considering and assessing the evidence on record, the learned District Judge, Beed dismissed the said Regular Civil Appeal No. 143 of 1980 vide judgment and order on 21.6.1988. 10 Being aggrieved by the said judgment and order dated 21.6.1988 passed by the learned District Judge, Beed dismissing the said appeal, the original defendant nos. 1 and 2 i.e. appellants herein have preferred the present Second Appeal. 11 The main substantial questions of law agitated by the appellants herein are that :- (i) The courts below have committed an error of law in not properly construing exhibit-56 i.e. evidence of the plaintiffs; (ii) Both the courts below have also erred that the controversy relates to only one piece of land out of survey no.290 of which boundaries have not been given in the sale deed exhibit-57; and (iii) Both the courts below should have held that without identification of the portion of survey no. 290 of which 7 boundaries are not given in exhibit-57 sale deed. (exact words in the appeal memo reproduced) 12 In fact, the afore said are the main three grounds agitated by the appellants as the substantial questions of law. Considering the very text and contents of the said grounds, it is apparently clear that the said grounds relate to the facts of the case and cannot be construed as substantial questions of law to be appreciated and decided in the Second Appeal. 13 Apart from that even considering the said grounds and coming to ground no. (i) that the courts below have committed an error in law in not properly construing Exh.56 i.e. evidence of the plaintiffs, the appellants herein had challenged the said aspect before the lower Appellate Court and same has been aptly dealt with by the lower Appellate Court and there is no room in the Second Appeal to again re-assess the evidence of the plaintiffs. Hence, the proposition put forth by the appellants herein in that respect cannot be accepted. 14 As regards ground no. (ii) that the courts below have also erred that the controversy relates to only one piece of land out of survey no.290 of which boundaries have not been given in 8 the sale deed exhibit-57; and ground no. (iii) that both the courts below should have held that without identification of the portion of survey no. 290 of which boundaries are not given in exhibit-57 sale deed (verbatim words taken from ground no. 9 of the appeal memo), again said grounds relate to the factual aspects of the case, more particularly, the contents of Exh.57 and evidence of the said sale deed has been duly appreciated by both the lower courts and they have arrived to the conclusion that deceased Gopal Hari Tandale sold 3 pieces out of his 4 annas share in Survey Nos. 289 and 290 which is eastern portion beyond the east of Chartha river and under this sale deed he sold 2 pieces i.e. 2 annas share out of 4 annas share in both the said lands which are beyond the western bank of Chartha river. Hence the question before the lower Appellate Court for consideration was that whether the disputed land includes 2 pieces from Survey No. 290 sold by deceased Gopal Hari Tandale to defendant no.1 (appellant) under the registered sale deed Exh.57. In the said context, the recitals of the said sale deed Exh.57 are vital to come to the conclusion whether the disputed land was sold by Gopal Hari Tandale under registered sale deed Exh.57 to defendant no.1 or not. Considering the boundaries of 2 pieces from Survey No. 290 given in the said sale deed Exh.57, showed that 2 annas share from Survey No. 290 with boundaries was sold. The 9 boundaries of 2 annas share of land Survey No. 290 are as follows :- To the East : There is land of Namdeo, land of Bappaji and land of Dagdu and vendor’s land; To the South : land Survey No. 289; and To the North : land Survey No. 291. 15 However, boundaries in the sale deed Exh.57 relating to 2 annas share sold from Survey No. 290 to defendant no.1 do not show that adjoining to the east of the pieces sold there is river Chartha. Hence, it was concluded that the disputed land was not sold under the registered sale deed Exh.57 to defendant no.1 by the plaintiffs’ father namely Gopal Hari Tandale. 16 Moreover, there is another angle that since the sale deed Exh.57 disclosed that the total area of the land Survey No. 290 was 8 acres 29 gunthas, and by this sale deed Exh. 57, defendant no.1 had purchased only 2 annas share, so the area of this 2 annas share in Survey No. 290 comes to 1 acre 3 gunthas. In the said context, the defendants relied upon map Survey No. 290 filed at Exh.201/ and Hissa Survey map at Exh.20/2. The extent of Exh.20/1 showed that defendant no.1 possessed Hissa 10 no.1 in Survey No. 290 admeasuring 19 gunthas and Hissa no.9 in Survey No. 290 admeasuring 1 acre 1 guntha, which means that the area of above Pot Hissas is 1 acre 20 gunthas. However, as per sale deed Exh.57 defendant no.1 would not get more than what he was given i.e. area admeasuring 1 acre 3 gunthas i.e. 2 annas share out of 4 annas share in the sale deed Exh.57, which leads to the position that the disputed land was not given in possession of defendant no.1 by Gopal Hari Tandale at the time of execution of sale deed Exh.57 and the reasoning adopted in that respect by both the lower courts cannot be faulted with, and accordingly, there is no substance in the said grounds agitated by the appellants herein. 17 It is also canvassed by the learned counsel for the appellants that appellant/defendant no.1 was minor at the time of execution of sale deed dated 17.12.1938 and, therefore, the said sale deed was executed under guardianship of his mother, namely, Thakubai who was illiterate person and in spite of the sale and handing over of possession of the disputed portion of land by the plaintiffs’ father to defendant no.1 by way of said sale deed, there is no mention of the disputed portion of land therein, which created the controversy. He also states that in fact defendant no.1 i.e. appellant herein is in possession of the 11 disputed portion of land and, therefore, both the lower courts erred while delivering the respective judgments as mentioned herein above. However, I am not impressed by the said argument advanced by the learned counsel for the appellant, since although defendant no.1 was minor at the time of execution of the sale deed on 17.12.1938, it was executed through his natural guardian mother, namely Thakubai, who being natural guardian of defendant no.1 has presumably safeguarded the interest of defendant no.1 i.e. appellant herein. Besides that, the defendant no.1 i.e. appellant herein could have challenged the said sale deed after attaining majority and the said option was open for defendant no.1/appellant, but the appellant/defendant no.1 did not exercise the said option and did not challenge the said sale deed after attaining majority and, therefore, now appellant/defendant no.1 cannot be permitted to take the said plea which is after thought. Moreover, the appellants have already failed to prove their possession regarding disputed portion of land by way of cogent evidence, and therefore, there is no substance in the said contention also. 18 In the circumstances, in view of the foregoing discussion, there is no convincing substantial question of law in the present Second Appeal and, therefore, same fails. Resultantly 12 present Second Appeal stands dismissed. In the facts and circumstances, there shall be no order as to costs. (Shrihari P. Davare, J.) dbm/sa75.89