1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.71 OF 1989 Madan Gopal Yadhav age major,occupation agri. resident of Khotachi Wadi under village Mangrul, Appellant/ Taluka Tuljapur. ori.plaintiff No.2. versus 1. Bhojappa Sambhu Kapse, Respondent/ age major, occup.agri. ori.deft.No.1 resident of Mangrul, Taluka Tuljapur.(since deceased through his legal heirs as under:- 1-A) Satappa Bhojappa Kapse age 50 years,occupation agri. 1-B) Kashinath Bhojappa Kapse age 47 years,occup.Agril. 1-C) Mahadeo Bhojappa Kapse, age 43 years,occup,agril. 1-D) Indubai Sakharam Mahamane age 40 years, occup.agril. All residents of Mangrul, Tq.Tuljapur,Dist.Osmanabad. 2. Sow, Baidabai w/o Shivaji Kadam, age major, occup. household r/of Pimpla, Tq. Tuljapur, 2 3. The Collector, Osmanabad. 4. Kishan Keshav Shinde, age major, occupation agriculture, resident of Mangrul,Tq.Tuljapur, 5. Nagnath Keshav Shinde, age major, occupation agril. r/of Mangrul, Taluka L Tuljapur, 6. Laxman Keshav Shinde, Respondents/ age 40 years, occup. No.2 is orig. agriculture, resident pltff No.2 and of Mangrul,Tq.Tuljapur. Nos.3 to 6 are ori.deft.Nos.3 to 6. ------------------------------------------------------ Shri A.S. Gaikwad, Advocate, holding for Shri S.M. Godsay, Advocate for the appellant. Shri M.P. Tripathi, Advocate for Respondent Nos. 1-A to 1-D. None for Respondent Nos. 2,4,5 and 6. ------------------------------------------------------ Coram : P.R.Borkar, J. Date : July 20, 2010. ORAL JUDGMENT 01. This second appeal is filed by original plaintiff No.2 Madan Yadav being aggrieved by the judgment and decree passed by the learned District Judge, Osmanabad, in Regular Civil Appeal No.154 of 1982 decided on 12.7.1988 thereby allowing the 3 said appeal and modifying the decree that was passed by the learned Civil Judge, Senior Division, Osmanabad, in Regular Civil Suit No. 93 of 1977 decided on 26.11.1981. 02. Brief facts giving rise to this second appeal may be stated as under: Keshav Shinde was the original ancestor of plaintiff No.1 Baidabai and Defendant Nos. 3 to 5. Survey No. 14 admeasuring 28 acres 35 gunthas situated at village Mangrul, Taluka Tuljapur, District Osmanabad was purchased by Keshav Shinde by sale deed dated 13.10.1955 for Rs.5,000/= from one Bapurao Kashirao Deshmukh. The copy of Sale deed is at Exh.57. Keshav died on 2.6.1966 leaving behind his daughter (plaintiff No.1 Baidabai) and sons (defendants No.3 to 5). Defendant No.1 Bhojappa purchased the suit property from Defendant No. 3 to 5 by sale deed dated 30.3.1973. Original plaintiff No.1 Baidabai alone filed suit for declaration that the sale deed executed by her brothers defendant Nos. 3 to 4 5 in favour of appellant-original defendant No.1 is not binding on her 1/4th share and also for partition and separate possession to the extent of her 1/4th share. 03. It is not disputed that plaintiff no.1 Baidabai had entered into agreement with appellant-plaintiff No. 2 and subsequent thereto the sale deed was executed. Originally, appellant Madan Yadav was added as defendant No.6 in the suit and he had filed written statement (Exh.24) and he claimed that plaintiff Baidabai was having 1/4th share in the suit property and she had sold her said share in the suit property. Lateron appellant Madan Yadav had filed R.C.S.No.129 of 1977 for execution of the sale deed which was partly decreed, directing refund of earnest money to him. Being aggrieved thereby, he filed Regular Civil Appeal No.46 of 1978 and pursuant to the decree passed by the District Court in the said appeal, the sale deed was executed in his favour. He prayed that in present suit, he should have been added as plaintiff in stead of defendant. It 5 appears that during pendency of the suit, appellant-original deft.No.6 was added as plaintiff No.2 and the suit came to be ultimately decided on 26.11.1981. 04. The trial court held that plaintiff No.1 Baidabai had 1/4th share and as such she was entitled to partition and separate possession of her 1/4th share. The trial court also declared that the sale deed dated 30.3.1973 at Exh.51 was not binding on plaintiff No.1 Baidabai to the extent of her share. 05. As against the said judgment and decree of the trial court, Defendant No.1 Bhojappa filed Regular Civil Appeal No.154 of 1982. It was his contention that as per plaint para 2, plaintiffs have made out with a case that the suit property was ancestral property of Keshav Shinde and in the circumstances, evidence led before the trial court that the suit property was self acquired property of Keshav Shinde could not be considered. The appellate Court came to the conclusion that 6 plaintiff No.1 Baidabai had 1/16th share in the suit property and it declared that the sale deed executed by original defendant Nos.3 to 5 in favour of defendant No.1 was not binding on plaintiff No.1 Baidabai to the extent of her 1/16th share and the appellate court allowed the suit for partition and separate possession, accordingly. 06. Being aggrieved by the judgment and order of the District Court, original plaintiff No.2 Madan Yadav has filed this second appeal. The appeal was admitted by this court vide order dated 12.6.1989 without framing any substantial question of law. The only substantial question of law that could arise in this second appeal in the absence of any cross objection is; "Whether the District Judge committed error in holding that the suit property was ancestral property of Keshav Shinde and not his self acquired property and consequently in further holding that plaintiff No.1 Baidabai had 1/16th share 7 and not 1/4th share in the suit property ?" 07. Heard Shri A.S.Gaikwad, learned Advocate for the appellant and Shri M.P.Tripathi, learned Advocate for Respondent Nos.1-A to 1-D. 08. Advocate Shri Gaikwad vehemently submitted that there is overwhelming evidence on record indicating that the suit property was the self acquired property of Keshav Shinde. For the purpose, he drew my attention to various pieces of evidence. He relied upon the sale deed Exhibit 57 obtained by Keshav Shinde from one Bapurao Deshmukh on 13.10.1955. It shows that an amount of Rs.5000/= was paid as consideration. Therein, it is also stated that at the time of agreement of sale, the property was put into possession of Keshav Shinde and Rs.1000/= were paid as earnest money.At the time of execution of sale deed, remaining amount of Rs.4,000/= was paid. Learned Advocate Shri Gaikwad also relied upon Pahani 8 patrak (Exh.56) for the period 1955-56 to 1959-60. These pahani patraks show the name of Keshav Rama Shinde as actual cultivator and the name of Bapurao was shown as owner. One Sopan Sidram was shown as tenant in column No.13, but in said column, it is also stated that Sopan Sidram had given up his tenancy rights. The sale deed shows that the purchaser Keshav was put in possession of the suit property at the time agreement for sale executed prior to sale deed dated 13.10.1955. These two documents do not lead us to a conclusion as to whether it is self-acquired property of Keshav or it was joint family property. Nothing is stated regarding source of purchase money paid by Keshav Shinde. Be that as it may. 09. One thing is very clear that the suit property was not inherited by Keshav from his forefathers. Source of money is not clear. The second piece of evidence on which Advocate Shri Gaikwad for appellant wants to rely is the statement of the appellant on oath at Exhibit 55. 9 In his examination-in-chief, he has deposed that the suit land was self acquired property of Keshav Shinde. Keshav had no land or house before purchasing suit land. Prior to purchase of suit property, Keshav was working as a labourer. However, sale deed at Exh.57 shows that occupation of Keshav was "agriculture" and not "labourer." Moreover, appellant-plaintiff No. 2 was interested in stating that it was self acquiring property of Keshav Shinde. There is evidence of two more witnesses on which appellant's counsel wants to rely upon. The first is admission by Bhojappa (present respondent No.1-original deft.No.1) examined at Exh.45. In cross examination para 7, he has stated that Keshav had no ancestral land. Then he denied that Keshav had no ancestral land before purchasing the suit land and then he also said that he could not tell the survey number or area of the land. It may be noted that Bhojappa is the purchaser of property from the sons of Keshav. There is evidence of Dhainakumar Mehta examined as DW-2 at Exh.50. This witness in his cross examination stated that he was knowing Keshav and 10 that Keshav had purchased property from one Deshmukh. He further stated that Keshav was cultivating land and also working as labourer. So, it is argued on behalf of respondent No.1 that Keshav, who was labourer, could not have raised money for purchase of the suit land from mere labour work. 10. Shri M.P.Tripathi, learned counsel for Respondent Nos.1-A to 1-D submitted that at the time of purchase of the land by Keshav his sons were major and, therefore, there is possibility of joint acquisition. 11. The learned District Judge in his judgment reproduced paragraph 2 of the plaint and pointed out that original plaintiff No.1 Baidabai approached the court with a clear case that the suit property was the ancestral property of Keshav and that after his death, she and defendant Nos.3 to 5 became owners of the property and as eldest son, name of Defendant No.3 Kishan was entered in the revenue record in respect of the suit 11 property. Therefore, the learned District Judge has taken a view that the parties cannot be allowed to lead evidence contrary to their pleadings. It is specifically stated in the plaint that it was ancestral property of Keshav Shinde. 12. Shri M.P.Tripathi, learned counsel for Respondent Nos.1-A to 1-D drew my attention to plaint in R.C.S. No.103 of 1977 filed simultaneously with present R.C.S. No.93 of 1977. It was for declaration of 1/4th share in the suit property and for injunction. Paragraph 2 of the plaint in said R.C.S. No.103 of 1977 shows averment that the suit property was ancestral property of Keshav Shinde. It is specifically mentioned that the property was ancestral property of Keshav Shinde. So, original plaintiff Baidabai in her two suits had approached the court with concurrent case that the suit property was ancestral property of her father Keshav. 12 13. A.S.Gaikwad, learned counsel for the appellant, cited two cases. First case is M.Manoharan Chetti vs. M/s C. Coomaraswamy Naidu AIR 1980 Madras 212. In paragraph 10 of the judgment, the Court has observed that the law by no means regards admissions as conclusive proof of the matter admitted. It is also observed that unless clear inference on the fact in issue can be raised from admission, the admission cannot be used. Admission must be unequivocal, comprehensive and whole-hog. A truncated admission which falls short of totality of requisite evidence needed for legal proof of a fact in issue, cannot be accepted or made basis for a valid judicial decision. In present case, admission in para.2 of the plaint remained intact though this litigation has entered into 33rd year of pendency. If it was a mistaken admission, there ought to have been application for correction of the same in the trial court or at least before the District Court. Even in present second appeal there is no application to that effect. Parties have gone for trial with 13 particular pleadings on the basis of which issues are framed. It, therefore, cannot be said that the admission given in the plaint should be ignored when it is the very basis of the litigation. 14. The second case relied upon by learned counsel for the appellant is Vidhyadhar vs. Manikrao AIR 1999 SC 1441, wherein, in para. 16, it is laid down that when a party to the suit does not enter the witness box and avoids cross examination by other side, presumption would be that the case set up by him is not true and such party may allow raising of the presumption against it to the effect that had he entered into witness box, truth would have come out. It is, therefore, argued on behalf of the appellant that Defendant Nos. 3 to 5 in present case have not examined themselves on oath. But, that is equally true about plaintiff No.1 Baidabai. In fact, examination of Baidabai was important as it was she who had approached the court with a case that she had 1/4th share in spite of admission in paragraph 2 of the plaint. Be that as it may. 14 15. Learned Advocate Shri Tripathi for the legal heirs of Respondent No.1 relied upon the case of Bondar Sing vs. Nihal Singh AIR 2003 SC 1905 and more particularly on para. 7 of the judgment, wherein it has been laid down that when the plea of sub-tenancy was not taken in the written statement, no evidence in respect of such plea can be looked into by the court. 16. Having gone through the facts and circumstances of the case, in my opinion, plaintiffs are bound by their pleadings in the plaint which remained on record intact or unchanged for 33 years. The parties have gone to trial with aforesaid pleadings; issues were framed and even evidence was led on the basis of such pleadings. The District Court, therefore, cannot be said to have committed any error in holding the suit property to be ancestral property of Keshav Shinde and as such plaintiff No.1 Baidabai having 1/16th share therein. 15 17. In the result, this second appeal fails and the same stands dismissed accordingly. Parties to bear their own costs. pnd/SA71.89 (P.R.BORKAR, J.)