1 FA.839.05 w 840.05.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 839 OF 2005 WITH FIRST APPEAL NO. 840 OF 2005 Smt. Krushnabai Bhiwa Ulwekar and others. ... Appellants (In both the Appeals) Versus Gopal Shankar Ulwekar and others. ...Respondents (In both the Appeals) -------- Mr. A.A.Kumbhakoni i/b Mr. T.D.Deshmukh for the Appellants. Mr. M.K.Jain for Respondent Nos.1 to 4. -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 10 th June, 2011 DATE ON WHICH JUDGMENT IS PRONOUNCED : 16 th August, 2011. JUDGMENT: 1 These two appeals which arise out of cross suits filed by the parties can be disposed of by a common judgment and order. The 2 FA.839.05 w 840.05.doc S.C. Suit No.7119 of 1977 has been filed by the Appellants and the S.C. Suit No.5078 of 1984 has been filed by the Respondents. The dispute is about a portion of land admeasuring 31 ¼ gunthas bearing Hissa No.4 of Survey No.15 totally admeasuring about 1 acre and 10 gunthas in village Bhandup, Taluka Kurla, District Mumbai. 2 With a view to appreciate factual controversy, it will be necessary to make a reference to genealogy showing relationship between the parties: “Dharma Bhiku Sowar Bama Pandu Aditwar Bhiwa Shankar Appellants Gopal Manohar (Respondents)” 3 The Appellants are claiming through Bhiwa who is the son of Sowar. The Respondents are claiming through Shankar who is the 3 FA.839.05 w 840.05.doc son of Aditwar. The case of the Appellants is that after the death of original ancestor Dharma, his five sons Bhiku, Sowar, Bama, Pandu and Aditwar partitioned the agricultural lands held by Dharma. According to the case of the Appellants, the lands bearing Hissa No.1 of Survey No.24 and Hissa No.4 of Survey No.14 were allotted to the share of the branch of Sowar. According to the Appellants, the branch of Aditwar was allotted the lands bearing Hissa No.2 of Survey No.24 and Hissa No.3 of Survey No.24. In the suit filed by the Appellants, the entire land bearing Hissa No.4 of Survey No.15 has been described as the suit land. According to the case of the Appellants, the suit land was shown in the name of the said Sowar in the revenue record. 4 On the basis of the application made by the Talathi of village Bhandup, names of the Respondents were entered in respect of the disputed area of 31 ¼ gunthas out of the suit land. The case of the Appellants is that they were always in possession of the entire suit land. The first prayer in the suit filed by the Appellants is for 4 FA.839.05 w 840.05.doc declaration that they are the owners of the suit land. The second prayer is that in the event, the Court comes to the conclusion that the Respondents are in use and occupation of the suit land, they may be ordered and decreed by the Court to remove themselves and hand over the possession thereof to the Appellants. A prayer was made for perpetual injunction restraining the Respondents from entering into the suit land. 5 During the pendency of the suit filed by the Appellants, the Respondents filed S.C.Suit No.5078 of 1984. In the said suit, the contention raised by the Respondents is that in the partition, area of 31 ¼ gunthas (hereinafter referred to as “the disputed land”) out of the suit land, came to the share of branch of Aditwar and from the year 1929-30, Shankar, the son of Aditwar was in possession of the disputed land admeasuring 31 ¼ gunthas. Reference is made in the said suit to the proceedings under the Maharashtra Land Revenue Code, 1966 relating the mutation entries ending with the order of the State Government in revision application. The prayer in the suit filed 5 FA.839.05 w 840.05.doc by the Respondents is that they may be declared as absolute owners of the disputed land admeasuring 31 and quarter gunthas which was numbered as Hissa No.4-B of Survey No.15. There is a prayer for perpetual injunction restraining the Respondents from entering in the disputed land. The Respondents filed a written statement in the suit filed by the Appellants raising the same contentions, which have been raised in the plaint filed by them. Similarly, the Appellants filed the written statement in the suit filed by the Respondents raising the similar contentions which were raised in their plaint. 6 By the impugned common judgment and order, the trial Court decreed the suit filed by the Respondents and dismissed the suit filed by the Appellants. The operative part of the impugned common judgment and order reads thus: “O R D E R S.C.SUIT NO.7119 of 1977 is hereby dismissed. S.C. SUIT NO. 5078/ 1984 is hereby decreed and the plaintiffs are declared to be the owners of the suit property i.e. S.N. 15 H.No. 4-B admeasuring 31.1/4 guntha situated at Bhandup, Taluka Kurla, Mumbai. 6 FA.839.05 w 840.05.doc The defendants, their agents, servants are hereby perpetually restrained from causing obstructions to plaintiffs' possession over the suit property. Having regard to the relations between the parties, they are directed to bear their own costs in both suits.” 7 By the judgment and order dated 27 th June, 2007, these two appeals were decided and the same were dismissed. A special leave petition was preferred by the Appellants before the Apex Court. The Apex Court has passed an order of remand on 27 th August, 2008. The Apex Court directed that the appeal shall be heard and decided afresh in the light of the observations made in the judgment. Accordingly, the appeals have been taken up for final hearing. On the basis of the liberty granted by the Apex Court, applications for permission to lead additional evidence have been made by the Respondent in the appeals. 8 The learned counsel appearing for the Appellants attention of the Court to the order of remand passed by the Apex Court. He 7 FA.839.05 w 840.05.doc submitted that the points which arise for consideration in these Appeals have been already framed by the Apex Court. He submitted that there is no dispute between the parties that there was a partition in the family in the year 1929-30. He pointed out that the mutation entry No.59 made in the year 1932 shows the entry of Sowar in respect of the land bearing Hissa No.4 of Survey No.15 admeasuring 1 acre and 10 and ¾ gunthas. He pointed out the further mutation entry made in the year 1937 after demise of Sowar, in the name of Bhiwa and his mother. He pointed out that the Akarphod Patrak of the year 1929 was showing the name of Sowar as the occupier of the entire Hissa No.4 of Survey No.15. He pointed out that subsequently in the year 1963, an entry of sub-division of Hissa No.4 appears to have been made in which the name of Shankar is shown as occupier against the area of 31 ¼ gunthas of land bearing Hissa No.4-B of Survey No.15. He pointed out that the said entry was subsequently set aside. He invited attention of the Court to the order dated 6 th January, 1984 passed by the officer on special duty of State government in 8 FA.839.05 w 840.05.doc exercise of revisional powers under Section 257 of the Maharashtra Revenue Code, 1966. He pointed out that it was observed in the said order that the name of Bhiwa and his predecessor-in-title appears in the revenue record fright from the year 1929. He pointed out that in the said proceedings, the Respondents claimed adverse possession over the disputed area of 31 ¼ gunthas. He pointed out that the order of the Additional Commissioner was set aside by the officer on special duty of the State Government. He pointed out that the Bhiwa had filed a return / statement under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 on 13 th September, 1986 showing that he was in possession of the entire suit land bearing Hissa No.4 of Survey No.15. He pointed out the order passed by the Divisional Commissioner in mutation entry proceedings. He submitted that the said order has been set aside by the officer on special duty of the State Government. He pointed out the observations made by the officer on special duty that it was the Respondents who have to establish that the disputed area was allotted to them. He pointed out 9 FA.839.05 w 840.05.doc that in the review petition made before the State Government, the Respondents claimed adverse possession. He submitted that the Respondents cannot succeed unless they prove that the disputed area admeasuring 31 ¼ gunthas was allotted to them in partition. 9 The learned counsel appearing for the Respondents pointed out that there is a voluminous evidence on record to establish the possession of the Respondents over the disputed area. He pointed out that the Appellants' witness Laxmikant Bhiwa Ulvekar admitted the possession of the Respondents over the disputed area of 31 ¼ gunthas as the owners. He submitted that in view of the admission of the said Laxmikant in paragraph No.35 of his cross- examination, the case of the Respondents has been established. He submitted that there is no evidence on record adduced by the Appellants to prove that the entire Hissa No.4 of Survey No.15 was allotted to the share of Bhiwa in partition. He relied upon the documents annexed to the application for additional evidence filed by the Respondents. He submitted that there is voluminous documentary 10 FA.839.05 w 840.05.doc evidence in support of the case of the Respondents. 10 The learned counsel appearing for the Appellants replied that the alleged admission of Laxmikant relied upon by the Appellants can be at highest the admission regarding possession of the Respondents. He submitted that the Respondents will not succeed unless they prove that the area of 31 ¼ gunthas was allotted to them in partition. 11 I have given careful consideration to the submissions. The relevant part of the order of remand passed by the Apex Court reads thus: “Indisputably, the partition took place prior to 1930. However, the same was an oral one as no document in support thereof has been brought on record. Sowar was allegedly allotted 123 Guntas of land bearing Survey No. 24 Hissa No.1, Survey No.15 Hissa No.4 and Survey No. 11/14 admeasuring 1 Acre 26 Guntas, 1 Acre 10 3/4 Guntas and 0 Acre 6 1/2 Guntas respectively. Aditwar is said to have been allotted 100 Guntas of land bearing Survey No. 24 Hissa No.2, Survey No.24 Hissa No.3,Survey No. 11/10 and Survey No. 11/2/2/ 11 FA.839.05 w 840.05.doc admeasuring 0 Acre 20 Guntas, 1 Acre 1 Gunta, 0 Acre 29 Guntas and 0 Acre 8 3/4 Guntas respectively. We may, however, place on record that the said assertion on the part of the appellants herein is denied and disputed. According to the appellants, Hissa No.4 in Survey No.15 was furthermore sub-divided into 4 Hissas and the respondents were shown to be in possession of Survey No. 15/4B admeasuring 31 1/4 Guntas. Furthermore, contention of the appellants is that in the year 1964 the said sub-divisions were cancelled by the revenue authorities. It is also contended that upon coming into force of the provisions of the Urban Ceiling and (Regulation) Act, 1976, the appellants had shown in their return the entire Survey No.15 Hissa No.4 as in their possession. However, it is submitted that in April, 1977, entry in Survey No. 15 was changed. An appeal filed thereagainst by the appellants was dismissed. However, a Second Revision filed by the appellants is said to have been allowed. A writ petition filed by the respondents was not entertained on the premise that an alternative remedy by a civil suit is available to the respondents. .... .... From a perusal of the impugned judgment it appears that the High Court proceeded on the basis that partition effected between the parties prior to 1930 should be re-opened as the shares between both the branches were not equal. In our opinion the questions which were required to be posed and answered by the High Court were; (1) whether by reason of the said partition allotment of the joint family property was made as contended by the respective parties; (2) whether 12 FA.839.05 w 840.05.doc Hissa No.4 in Survey No. 15 or any part thereof was allotted either to Bhiwa or Shankar; (3) whether the land in suit was correctly recorded in the Records of Rights and who was in possession thereof. In view of the reliefs claimed by the parties in their respective suits, in our opinion, there was no occasion for the High Court to adopt an approach to re-open the partition so as to cause equitable distribution of the entire joint family property between the parties. We, therefore, are of the opinion that as the approach of the High Court was not correct,interest of justice would be subserved if the impugned judgment is set aside and the matter is remitted to the High Court for consideration of the entire matter afresh confining itself to the issues framed in the suit. If, however, respondents intend to bring on record some additional documents, they may file an appropriate application under Order XLI Rule 27 of the Code of Civil Procedure before the High Court, which may be considered on its own merits. It is accepted at the Bar that the respondents are in possession of the lands in suit. If, that be so, till any further order is passed by the High Court, the respondents shall continue to remain in possession. We may, furthermore, notice that applications for directions have been filed by the respondents being I.A.Nos.15-16/2008. As we have not considered any of the documents filed before us by the parties, we need not pass any order on these applications.” (Emphasis added) 12 The points for determination have been set out in the order 13 FA.839.05 w 840.05.doc of the Apex Court. The factual controversy in these appeals is very narrow. The case made out by the Appellants is that in the partition effected in the year 1929-30, the entire Hissa No.4 of Survey No.15 was allotted to the share of the branch of Sowar. The case of the Respondents in the pleadings is that the disputed area of 31 ¼ gunthas out of Hissa No.4 of Survey No.15 has been allotted to the branch of Aditwar in the partition. As far as the factum of the partition effected in the family is concerned, there is no dispute between the parties. The only dispute is as regards the allotment of land bearing Hissa No.4 of Survey No.15. 13 As far as the revenue record is concerned, the mutation entry No.59 has been made in the year 1932 in the name of Sowar in respect of the entire Hissa No.4 of Survey No.15. The said mutation entry has been made on the basis of Akarphod Patrak of 22 nd October, 1929. Thereafter, the mutation entry No.80 was made in the year 1937 on the death of Sowar in the name of Bhiwa and his mother. The Akarphod Patrak of 1929 shows the Sowar as the occupier of entire 14 FA.839.05 w 840.05.doc area of 1 acre and 10 ¾ gunthas of Hissa No.4 of Survey No.15. Subsequently, a mutation entry bearing No.541 was made about the sub-division of Hissa No.4 of Survey No.15. The said mutation entry shows that Hissa No.4-B admeasuring 31 and quarter gunthas of Survey No.15 was in the name of Shankar, the predecessor of the Respondents. On the said mutation entry, there is a remark in the remarks column that the same was cancelled. The said mutation has been made on the basis of the Akarphod Patrak of 1963. In the year 1977, a mutation entry No.1158 was made by which the name of the Respondents was mutated in the revenue records in respect of the Hissa No.4-B of Survey No.15 admeasuring 31 ¼ gunthas. As an objection was raised to the said entry, an inquiry was held by the Tahsildar, Kurla. The predecessor of the Appellants preferred first appeal as well as second appeal against the said order. Both the appeals were dismissed. The predecessor of the Appellants preferred a revision application before the Additional Commissioner. The revision application was dismissed. Against the said order, a second 15 FA.839.05 w 840.05.doc revision application was preferred to the State Government. The said revision application of the Appellants was allowed by setting aside the said mutation entry No.1158. The officer on special duty of the State Government observed that the Respondents will have to prove valid claim of title in respect of the area of 31 ¼ gunthas and they will have to establish their claim to hold the said area on the ground of adverse possession through the Civil Court. 14 Thus, none of the documents relating to the Revenue Record establish that the disputed area of 31 ¼ gunthas was allotted to the share of either the predecessor of the Appellants or to the predecessors of the Respondents in the partition. Though right from 1929, the revenue record shows the name of Sowar as the occupant in respect of the entire Hissa No.4 of Survey No.15, there is no evidence to show that in the partition, the entire Hissa No.4 of Survey No.15 was allotted to the predecessor of the Appellants. 15 Now the other question which remains to be examined is 16 FA.839.05 w 840.05.doc whether on the basis of the documents annexed to the application for additional evidence, the Respondents established their case of the allotment of disputed land in partition. The first document relied upon by the Respondent is mutation entry No.59, which is in respect of various hissa numbers of Survey No.11. The said documents have no relevance in the present case. The Respondents have also relied upon the mutation entry No.1015, which again deals with the Survey No.11. The Respondents have produced 7/12 extract in respect of Hissa No.2/2 of Survey No.11 and Hissa No.10 of Survey No.11. The Respondents are relying upon an order of Sub-Divisional Officer, which again deals with certain hissa number of Survey No.11. These documents cannot prove allotment of the disputed area of 31 ¼ gunthas to the predecessor of the Respondents in the partition of 1929-30. 16 Lastly, the Respondents are relying upon the consent terms filed in a suit filed by one Mr.Devjibhai Ghelabhai Patel and three others aginst Bhiwa. The said consent terms filed on 27 th 17 FA.839.05 w 840.05.doc September, 1982 refer to Hissa No.4-A of Survey No.15. It is pertinent to note that the order of the officer on special duty of the State Government is passed on 1 st November, 1985 by which mutation entry No.1158 was set aside. Moreover, the consent terms will not help the Respondents in proving the allotment of the disputed land in partition in their favour. 17 The other issue which now survives is regarding the alleged admission of Laxmikant and the factum of possession over the area of 31 and quarter gunthas. It will be necessary to make a reference to paragraph No.35 of the cross-examination of the said Laxmikant. Paragraph No.35 of the cross-examination of the said witness- Laxmikant rads thus: “35. All the legal heirs of the Dharma were agriculturist. It is not true that land admeasuring 31.5 gunthas from the suit land was in the possession of my uncle Shankar. It is true that before the Tahsildar the plot of land admeasuring 31.5 gunthas was declared in the possession of Shankar as per the order of Tahsildar dated 31.8.77 in suit no. 149/77. That suit was filed by my father against the 18 FA.839.05 w 840.05.doc defendants. It is true that after the order of Tahsildar my father had filed this present suit against the defendant. After the filing of the present suit the order as passed in our favour by the Revenue Department of Mantralaya. It is true that prior to any order passed by Revenue authority defendants were in possession of the plot of land admeasuring about 31.5 gunthas as a owner. It is true that against the order of Revenue authority the defendants had filed the suit No. 5078/84 against us in the City Civil Court and that the present defendants succeed in obtaining the injunction against us in that suit in respect of the plot of land admeasuring 31.5 gunthas which are in possession of the defendants.” (underline supplied) 18 The Appellants have all along disputed the ownership of the Respondents. The admissions of Laxmikant can be certainly read to mean as the admissions of the Appellants that the Respondents were in possession of the disputed area claimed by them. However, the same cannot be read as an admission of ownership by any stretch of imagination. If the entire evidence is read as a whole, it cannot be construed as the admission of ownership of the Respondents inasmuch as the witness has asserted the ownership of the 19 FA.839.05 w 840.05.doc Appellants. Moreover, the issue is whether the disputed land in question was allotted to the predecessor of the Respondents in partition. It will be interesting to note the suggestion given by the Advocate for the Respondents to the said Laxmikant, which is recorded in paragraph No.37 of his cross-examination. Paragraph No. 37 of the cross-examination of Laxmikant reads thus: “37. It is not true that it was settled between the parties that the plot of land admeasuring 31.5 gunthas shall remain with the defendant no.1 and 2 and therefore, the suit was no prosecuted by the plaintiff and the same was dismissed on 13.2.78. In the year 1978 I was 8 years old. It is true that due to my age as 7 or 8 years old in the year 1977 – 78. I was not knowing about any talks of settlement between my father and defendants about giving of land admeasuring 31.5 gunthas in favour of defendants no.1 and 2. I have passed the S.S.C. My elder brother Rameshdev is 38 years old and another brother Omprakash is 36 years old.” (emphasis added) 19 This suggestion of the Respondents shows that the Respondents are not relying upon the allotment in partition, but they relied upon the alleged settlement. Thus, as far as the disputed area of 31 ¼ gunthas is concerned, the possession of the Respondents will 20 FA.839.05 w 840.05.doc have to be accepted. The suit filed by the Appellants was on the footing that the predecessor of the Appellants was allotted the entire Hissa No.4 of Survey No.15 in partition. The Appellants have failed to prove their case. As far as the suit filed by the Respondents is concerned, their suit proceeds on the footing that the area of 31 ¼ gunthas bearing Hissa No.4-B of Survey No.15 was of their absolute ownership by virtue of partition. The ownership is claimed on the basis of the partition. Reliance has been placed on partition effected in the year 1929-30. Therefore, in view of the failure by the Respondents to prove the allotment of the disputed area in partition, the substantive relief of declaration cannot be granted. As the Respondents are not entitled to substantive relief of declaration, even the consequential prayer for injunction cannot be granted. Failure of both the parties to prove allotment in partition will lead only one conclusion that Hissa No.4 of Survey No.15 continues to be the joint property of the parties. Thus, the third question framed by the Apex Court will have to be answered by holding that the Respondents are in 21 FA.839.05 w 840.05.doc possession of area of 31 ¼ gunthas out of Hissa No.4 of Survey No. 15. 20 None of the parties have claimed relief of partition. Hence, the First Appeal No.839 of 2005 which is preferred for challenging the decree of dismissal passed in