1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 455 OF 1991 Devidas s/o Dhondiba Birle, Age 40 years, Occ. Agriculture R/o. Mawalgaon, Taluka Ahmedpur District Latur ...Appellant Versus 1 Dattu s/o Nagoba Birle, Age 40 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 2. Venkati s/o Apparao Bhadade, Age 54 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 3 Pundlik s/o Apparao Bhadade, Age 49 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 4 Maroti s/o Tulshiram Deokate, Age 49 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 5 Waman s/o Baliram Bhadade Age 49 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 6 Hanmant s/o Ramrao Bhasmapure Age 74 years, Occ. Agriculture, R/o. Mawalgaon, Tq. Ahmedpur District Latur 7 Manik s/o Nivrutti Deokate, Age 47 years, Occ. Agriculture, R/o. Vilegaon, Tq. Ahmedpur District Latur 2 8 Pandhari s/o Kalba Kompalle Age 49 years, Occ. Agriculture, R/o. Borgaon (Kd), Tq. Ahmedpur District Latur ...Respondents ..... Mr. S.S. Choudhari, advocate for the appellant Mrs. C.S. Deshmukh, advocate for respondent Nos.1 to 6 ..... CORAM: R.G. KETKAR, J. DATED: 3RD NOVEMBER, 2009 JUDGMENT:- 1 The original plaintiff has preferred this second appeal under Section 100 of Code of Civil Procedure, 1908 (for short “CPC”), challenging the judgment and decree dated 10.7.1991 passed by the learned District Judge, Latur in Regular Civil Appeal No. 22 of 1987. By the impugned judgment, the learned District Judge has allowed the appeal preferred by the original defendant Nos. 2, 4, 5, 7 and 9, and set aside the judgment and decree dated 5.2.1987 passed by the learned C.J.J.D. Ahmedpur in R.C.S. No. 67 of 1976 and dismissed the suit. The second appeal was admitted on the ground Nos. 6 to 9, as they raised substantial questions of law. Ground Nos. 6 to 9 read as under:- VI The learned District Judge ought not to have reversed the 3 findings recorded by the learned Civil Judge Junior Division, without giving reasons. VII The learned District Judge has committed an error in observing that the Khasra Pahani Patrak is required to be proved by examining Patwari. As Khasra Pahani Patrak is the old revenue record, it has got presumptive value. The presumption is in favour of the person whose name appears in the Khasra Pahani Patrak. The documentary evidence of Pahani Patrak should have been rebutted by the defendant Nos. 2,4,5,7,8,9 and 10. VIII. The learned District Judge did not take into consideration the immediate conduct of the plaintiff in appreciating the evidence on record. The learned District Judge has committed an error in discarding the documentary evidence of compromise decree passed immediately after the adoption in Civil Suit No. 41/1 of 1951-52. IX. It ought to have been held that the learned District Judge did not take into consideration the admissions given by the defendant No.1 Dattu in his evidence. He clearly admitted that the three brothers, namely, Dhondiba, Raoji and Mahadu were residing separately. Their shares were defined in the revenue 4 record. In view of this, the learned District Judge ought to have held that they were residing separately by making partition of their lands and the property. The relevant and material facts for disposal of this second appeal, are as under;- 2 The plaintiff instituted R.C.S. No. 67 of 1976 for recovery of possession of lands bearing survey No. 34/1 to the extent of 6 A 18 Gts, survey No. 34/2 to the extent of 4 A 32 Gts, survey No. 37 admeasuring 2 A 10 Gts and finally survey No. 38 to the extent of 3 A 35 Gts. The plaintiff also prayed for declaration that the alienations described in paragraph 7 of the plaint, be declared as null, void and not binding to the extent of his share, on the ground that these lands were initially owned by one Raoji. He died leaving behind his three sons viz. i) Nagoba, ii) Dhondiba and iii) Mahadu. Nagoba died leaving behind two sons Raoji and Dattu, defendant No.2 in the said suit. Raoji died leaving behind Dhondiba, defendant No.1. Dhondiba adopted plaintiff on 11.3.1950, by performing all the requisite ceremonies according to Hindu Law. It is the case of the plaintiff that Dhondiba executed will in his favour on 16.11.1951. On the strength of adoption deed dated 11.3.1950 and also on the strength of will dated 16.11.1951, the plaintiff claimed ownership of the the lands. He alleged that he was unlawfully dispossessed from these lands. 5 It is the case of the plaintiff that the defendant No.1 sold land survey No. 34/1 admeasuring 4 acres 7 gunthas to defendant No.2, which included share of the plaintiff, on 28.2.1975. Subsequently, defendant No.1 sold survey No.37 to the extent of 2 acres 10 gunthas, as also survey No.38 to the extent of 2 acres to defendant Nos. 4 and 5 on 3.7.1975, which included plaintiff’s share. Defendant No.1 sold survey No.34/2 admeasuring 4 acres to defendant No.6 on 28.8.1975, which included plaintiff’s share. It is further case of the plaintiff that defendant No.2 sold his share, as also plaintiff’s share in survey No.38 admeasuring 3 acres 37 gunthas to defendant Nos. 7 and 8 on 16.2.1976. The plaintiff therefore, instituted the aforesaid suit for setting aside these alienations, as also for recovery of possession of these lands. 3 The defendant No.1 Dhondiram did not file written statement and suit proceeded against him without written statement. Defendant No.2, 4 to 8 filed written statement on 29.7.1976 at Exh.41 and resisted the claim of the plaintiff. It was asserted that the plaintiff was never in possession of the suit lands and consequently there was no question of dispossessing him. Dhondiba Raoji died issue less and the property of Raoji was partitioned in between defendant No.3 and Nagoba, as successors. They are bonafide purchasers for value and are in actual physical possession of their respective purchased 6 properties. It was also alleged that the suit was instituted by the plaintiff in collusion with defendant Nos. 1 and 3. Defendant No.3 filed written statement on 21.8.1976 at Exh.44 and supported the case of the plaintiff. The defendant No.9 filed written statement on 12.10.1983 at Exh.81 and he denied that the plaintiff is adopted son of Dhondiba. He also claimed that he is bonafide purchaser for value and that the plaintiff has no right to challenge his sale deed. Defendant No.10 filed written statement on 30.11.1983 at Exh.83 and supported the plaintiff’s case. 4 On the basis of the pleadings of the parties, the learned trial Judge framed necessary issues. The parties led oral as well as documentary evidence in support of their rival contentions. In so far as the alienations are concerned, he declared them to be null and void to the extent of share of deceased Dhondiba, Raoji Birle. Before proceeding further, it is relevant to note that the findings given by the learned Trial Judge in so far as issue No.6 is concerned, the same pertains to declaration whether alienation could be declared null and void. That issue was answered in the affirmative. In so far as the issue No.11 is concerned, which was to the effect that whether the purchasers prove that they are bonafide purchasers for value and in possession of the respective properties purchased by them, learned Trial Judge answered that issue also in affirmative. 7 5 The learned trial Judge recorded findings on issue No.11 against the plaintiff. The plaintiff has not preferred appeal against these findings. Defendant Nos. 2, 4, 5, 7 and 9 preferred appeal before the learned District Judge. Learned District Judge came to the conclusion that the plaintiff has failed to establish that he is adopted son of Dhondiba Raoji Birle, as basically the deed of adoption itself was not produced. There was absolutely no documentary evidence on record with regard to adoption deed dated 11.3.1950. Learned District Judge recorded that the plaintiff was too young at the time of adoption and consequently his oral evidence (Exh.108) is of no help for purpose of deciding the factum of adoption. In so far as the evidence of Prayagbai at Exh. 114 for proving the factum of adoption is concerned, the learned District Judge in para 9 recorded that Prayagbai is sister of plaintiff’s mother and her evidence does not inspire confidence. She could not depose particulars of adoption as to when it took place. In short, she could not prove factum of adoption. Coupled with the fact that deed of adoption itself was not produced, the learned District Judge came to the conclusion that her evidence does not advance the case of plaintiff further as regards adoption. 6 In so far as the Will at Exh.121 is concerned, the plaintiff relied upon the evidence of one of the attesting witnesses Shri. Digambar Kulkarni, who was examined at Exh.120. Perusal of the cross 8 examination of Digambar Kulkarni, disclosed that deceased Dhondiba did not affix his mark to the will in his presence. Consequently, learned District Judge came to the conclusion that having regard to section 63(c) of Indian Succession Act, 1925, it cannot be said that will is validly attested. On that ground, learned District Judge allowed the appeal and set aside the trial court's judgment. 7 Mr. Choudhari, learned counsel for the appellant strenuously contended that the first appellate court has committed serious error in discarding the evidence of witnesses examined on behalf of the plaintiff. He further submitted that Khasra Pahani Patrak is an old revenue record and it has got presumptive value. Since the name of the plaintiff appears in this Khasra Pahani Patrak, the defendants ought to have rebutted documentary evidence in the shape of Khasra Pahani Patrak. He further submitted that learned District Judge committed serious error in not taking into consideration admission given by defendant No.1 Dattu in his evidence, wherein he admitted that Dhondibe Raoji and Mahadu were residing separately and thus there was partition among these three brothers. He also heavily relied upon the consent decree passed in R.C.S. No. 44/1 of 1951. He therefore, submitted that the impugned judgment and decree passed by the learned District Judge deserves to be set aside, thereby restoring the decree passed by the trial Court. 9 8 On the other hand, learned counsel Ms C.S. Deshmukh, for the respondents submitted that the plaintiff has claimed ownership in respect of the suit property on the basis of the deed of adoption dated 11.3.1950 and Will dated 16.11.1951. In so far as the deed of adoption is concerned, the document is not produced on record. Consent decree in earlier litigation is of no assistance as it did not determine validity of the deed of adoption. By that consent decree Jivnabai, widow of Dhondiram relinquished her interest only. 9 In so far as the will at Exh.121 is concerned, she submitted that the plaintiff has not established that the Will was validly attested. In support of her contention, she relied upon the judgment of Apex Court in the case of Janki Narayan Bhoir Vs. Nanayan Namdeo Kadam , (2003) 2 SCC 91 to contend that the requirement of due execution of a will under Section 63(c) of the Act is its attestation by two or more witnesses is mandatory. She also invited my attention to the judgment of the Apex Court in the case of Madhusudan Das Vs. Smt. Narayani Bai andothers, reported in AIR 1983 SC 114 to contend that the person, who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. In the instant case, even the deed of adoption is not produced. In view of this, she submitted that appeal does not raise any substantial questions of law and consequently deserves to be dismissed. 10 10 I have heard learned counsel for the parties at length. In my opinion, the plaintiff has claimed relief on the basis of the deed of adoption dated 11.3.1950 and also will dated 16.11.1951. In so far as deed of adoption is concerned, the plaintiff has not produced that document on record. The evidence of Prayagbai, in my opinion, has been rightly discarded by the learned District Judge. That apart, in the judgment of the Apex Court in the case of Madhusudan Das (supra), the Apex Court has held that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Nonetheless the fact of adoption must be proved in the same way as any other fact. There is no other documentary evidence on record to substantiate the claim of the plaintiff, as regards the adoption. In view of this, in my opinion, the learned District Judge has rightly held that the plaintiff did not establish the factum of adoption. 11 In so far as the will dated 11.3.1950 is concerned, the plaintiff has relied upon the evidence of Digambar Kulkarni, which is at Exh. 121, as he being one of the attesting witnesses. The admission given by Digambar Kulkarni in his cross examination shows that deceased Dhondiba did not affix his mark in presence of attesting witness Kulkarni. Having regard to the requirement of Section 63(c) of the Indian Succession Act 1925, it cannot be said that the plaintiff has 11 proved the attestation of will. In view of this, the learned District Judge has rightly held that the plaintiff has not established the validity of the will. If the foundation of plaintiff’s claim rests upon the deed of adoption and will of the foundation itself goes away, then entire suit instituted by the plaintiff falls to the ground. In my opinion, no substantial questions of law arises in the present second appeal and the second appeal deserves to be dismissed. In the result, I pass the following order. Second appeal is dismissed with no orders as to costs. *****