S.A.29/2003 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.29 OF 2003 1. Nana s/op Balwant Idhate APPELLANTS (Died) through Legal Heirs 1A. Kisan Nana Idhate, Age – 62 years, Occ – Agriculture R/o Korgavhan, Post Nimbavi, Taluka – Shrigonda, District – Ahmednagar 1B. Bhika Nana Idhate, Age – 60 years, Occ – Service R/o Bhaskar Nagar, Buva Pada, Near Mandapuri Bhor High School, Ambarnath, District – Thane 1C. Maruti Nana Idhate, Age – 58 years, O cc – Service R/o Sagar Kirana Store, Pritampur, Taluka – Dhar District – Dhar (UP) 1D. Smt. Chandrabhaga Bhivaji Shinde, Age – 64 years, Occ – Nil R/o Kalkup, Pot Bhalavani, Taluka – Parner, District – Ahmednagar 1E. Sau. Gangubai Bapurao Bhujbal, Age – 56 years, Occ – Household R/o Daithane (Gunjal), Taluka – Parner District – Ahmednagar 1F. Smt. Ranjana Mahadu Pund, Age – 54 years, Occ – Household R/o Sagar Kirana Store, Pritampur, Taluka – Dhar District – Dhar (UP) 1G. Sau. Mangal Bhanudas Mehetre, Age – 50 years, Occ – Household R/o Kolgaon, Taluka – Shrigonda District - Ahmednagar S.A.29/2003 2 2. Sukhdeo s/o Balwant Idhate Age – 61 years, 3. Mahadeo s/o Balwant Idhate Age – 55 years, All Occ – Agriculture R/o Koregawhan, Taluka – Shrigonda District - Ahmednagar VERSUS 1. Sakharam s/o Maruti Tambe RESPONDENTS Age – 70 years, Occ – Labour R/o Rahuri Factory, Taluka – Rahuri, District – Ahmednagar 2. Kisan s/o Nana Idhate, Age – 41 years, Occ – Agriculture 3. Bhika s/o Nana Idhate, Age – 38 years, Occ – Agriculture 4. Maruti s/o Nana Idhate, Age – 38 years, Occ – Agriculture Respondents No.2 to 4 All R/o Koregawhan, Taluka – Shrigonda, District – Ahmednagar 5. Bansi s/o Nana Idhate (Died) through LR Smt. Kamal Bansi Idhate, Age – 33 years, Occ – Household R/o Koregavhan, Taluka – Shrigonda District – Ahmednagar …..... Mr. P. B. Sirsath, Advocate for appellants Mr. A. B. Gatne, Advocate for respondent No.1 …...... SECOND APPEAL NO.28 OF 2003 1. Nana s/op Balwant Idhate APPELLANTS (Died) through Legal Heirs 1A. Kisan Nana Idhate, Age – 62 years, Occ – Agriculture R/o Korgavhan, Post Nimbavi, S.A.29/2003 3 Taluka – Shrigonda, District – Ahmednagar 1B. Bhika Nana Idhate, Age – 60 years, Occ – Service R/o Bhaskar Nagar, Buva Pada, Near Mandapuri Bhor High School, Ambarnath, District – Thane 1C. Maruti Nana Idhate, Age – 58 years, O cc – Service R/o Sagar Kirana Store, Pritampur, Taluka – Dhar District – Dhar (UP) 1D. Smt. Chandrabhaga Bhivaji Shinde, Age – 64 years, Occ – Nil R/o Kalkup, Pot Bhalavani, Taluka – Parner, District – Ahmednagar 1E. Sau. Gangubai Bapurao Bhujbal, Age – 56 years, Occ – Household R/o Daithane (Gunjal), Taluka – Parner District – Ahmednagar 1F. Smt. Ranjana Mahadu Pund, Age – 54 years, Occ – Household R/o Sagar Kirana Store, Pritampur, Taluka – Dhar District – Dhar (UP) 1G. Sau. Mangal Bhanudas Mehetre, Age – 50 years, Occ – Household R/o Kolgaon, Taluka – Shrigonda District - Ahmednagar 2. Sukhdeo s/o Balwant Idhate Age – 61 years, 3. Mahadeo s/o Balwant Idhate Age – 55 years, All Occ – Agriculture R/o Koregawhan, Taluka – Shrigonda District – Ahmednagar VERSUS 1. Sakharam s/o Maruti Tambe RESPONDENTS S.A.29/2003 4 Age – 70 years, Occ – Labour R/o Rahuri Factory, Taluka – Rahuri, District – Ahmednagar 2. Kalabai Bansi Gadilkar, Age – 68 years, Occ – Household R/o Ralegaon (Karkheli) Taluka – Shirur, District - Pune 3. Subhadrabai Parvati Bhujbal, Age – 64 years, Occ – Household R/o Kanhur, Taluka – Parner District - Ahmednagar 4. Sulochanabai Dnyandeo Gore, Age – 52 years, Occ – Household R/o Pimpalner, Taluka – Parner District – Ahmednagar 5. Leelabai Haribhau Dome Age – 66 years, Occ – Household R/o Ralegaon (Karkheli) Taluka – Shirur, District - Pune …..... Mr. P. B. Sirsath, Advocate for appellants Mr. A. B. Gatne, Advocate for respondents No.1 to 5 …...... CORAM : SUNIL P. DESHMUKH, J. DATE : 21 st OCTOBER, 2016 ORAL JUDGMENT : 1. Succinct reference to following background emanating two second appeals 28 and 29 of 2003 may facilitate appreciation of the matter in controversy. 2. Subject matter of dispute is land now bearing Gut No.95, (erstwhile survey No.26/1) admeasuring about 1 Hectare and 28 Are, situated at Mouje Koregawhan, Taluka – Shrigonda, District – Ahmednagar [ hereinafter “the suit land / property”] S.A.29/2003 5 3. Parties hereto would be required to be referred to by their surnames as “the Idhates” and “the Tambes” which would avoid mix-up over their status in the suits instituted against each other. 4. Regular Civil Suit No.8 of 1985 had been instituted by the Idhates as plaintiffs on 9th of January, 1985 against the Tambes as defendants. 5. The Tambes – as plaintiffs instituted Regular Civil Suit No. 41 of 1985 on 16th February, 1985 against the Idhates. 6. The Idhates in Regular Civil Suit No.8 of 1985 averred that suit land is their ancestral property and Balwant Idhate, their predecessor had been owner and in possession of the same. Relations between Balwant Idhate and Maruti Tambe, predecessor of the Tambes had been cordial and Balwant used to repose confidence in Maruti. Taking disadvantage of the situation, Maruti got some document executed from Balwant and based on the same caused revenue entry in ownership column in his favour, however, Balwant continued to be in possession as owner and that Maruti had never been in possession of the subject property. 7. It is contended that even if it is assumed that Maruti had claimed ownership yet, Balwant continued to possess the land in the character as owner. All along him and the Idhates have been S.A.29/2003 6 cultivating land as owners and revenue entries particularly seven/twelve extracts bear the same. While Maruti had attempted to take over possession, the same came to be foiled by Balwant and Maruti was whisked away from the land and Balwant continued to own and possess the land and have its produce. 8. It is averred that from the very beginning and ever since summer of 1941 Balwant Idhate had denied ownership of Maruti Tambe and had not let in the Tambes occupy suit land and the Idhates have been cultivating the land for over a period of more than twelve years, without any interruption. Predecessor of the Idhates – Balwant died in 1963 and after him his heirs have been cultivating suit land in the same character of ownership rights of their predecessor and are enjoying income derived from the land. They have asserted their right of ownership and had dug a well around 1958 in the land and have converted it into an irrigated land. 9. In 1966, Maruti – predecessor of the Tambes died. Neither Maruti during his lifetime nor after him his heirs had ever been in possession of suit property. Although, names of heirs of said Maruti have been entered into ownership column of revenue record, but the same is only hollow entry. The Tambes have no right of ownership over the suit property. Son of Maruti – Sakharam is working as labourer in sugar factory and daughters of Maruti have S.A.29/2003 7 been staying in their respective matrimonial houses. 10. It is contended that in collusion with Talathi, entries in revenue record for the years 1979-80 and 1982-83 have been got changed showing possession with the persons in ownership column. There has been complaint in respect of such cultivation entries and proceedings had been taken up. 11. Around 6th January, 1985, the Tambes threatened to take away produce and under the circumstances, regular civil suit No.8 of 1985 ensued for reliefs inter alia, declaration that the Idhates have become owners by adverse possession, for declaration that entries in revenue record showing ownership of the Tambes have been hollow and to declare that the Tambes have no right to suit property and for injunction against them. 12. The defendants – the Tambes filed written statement, denying claims of the plaintiffs – the Idhates that the suit property is being cultivated by the plaintiffs – the Idhates, that the trust had been reposed in defendants' – the Tambes' father and he had deceived Balwant Idhate and had got something in writing from him and also denied contention that entry of the Tambes name in the 7/12 extract had been caused at their behest. The contention that the suit land was being cultivated by father of the Idhates around 1940-41 and that the Tambes had tried to take over their possession and had been whisked by the Idhates is denied. Entries S.A.29/2003 8 of the Idhates names have been denied. It is further denied that the Idhates had been enjoying the income from the land in the capacity of owners, as also the claim with regard to land being possessed by the Idhates. The claim of hostility to the title to the property over twelve years continued before death of their ancestor and after his death by the Idhates, has been denied. It is additionally contended that after execution of the registered sale- deed in favour of their father by Balwant Idhate – the Tambes have been owners in possession of suit property. They have been cultivating it as owners and accordingly, their names have been appearing in revenue record – 7/12 extracts. 13. It is contended that around 1972, as there had been famine and no income could be derived and the family being big, the defendants – the Tambes were required to leave their usual place of residence for their sustenance. Since the relations between the Tambes and the Idhates were cordial, the Idhates were requested to look-after suit land. However, the Idhates with ill intention to claim right to the property, caused their names enter revenue record which the Tambes could come to know four years later, on their return and had taken back possession of the land and started cultivating it in their capacity as owners. It was contended that the suit by the Idhates in the form as filed is not tenable and is liable to be dismissed. It is contended that, with a view to grab the land, a story had been created by the plaintiffs. S.A.29/2003 9 14. The Tambes on the other hand instituted suit as plaintiffs bearing regular civil suit no.41 of 1985 against the Idhates and other persons as defendants claiming that suit property had been of ownership of the Tambes from their forefathers and is being cultivated by them since 1940 after purchasing it from the Idhates and as such, the Tambes are the owners of suit property. Defendants - the Idhates are more in number and, as such, are taking disadvantage of the same and are trying to disturb possession of the Tambes over suit land. The Tambes have taken jawar crop. The Idhates had attempted to disturb agricultural operations and were trying to cause disturbance in the same which was detrimental to the interest of the Tambes and as such, suit had been instituted by them for injunction against the Idhates. Alternatively, the Tambes had sought, in case the court considers them to be not in possession, then the land be put in their possession as owners. 15. The Idhates, in their written statement as defendants in Regular Civil Suit No.41 of 1985 had denied claims under the suit by the Tambes. It had been averred that the suit would not proceed with as it would be hit by section 10 of the Civil Procedure Code. It was denied that Maruti Tambe had purchased the land from Balwant Idhate. They denied the claim of the Tambes being in possession since 1940 and averred that the Tambes had never S.A.29/2003 10 been in possession of the suit land and as such, the contention that the Idhates, have been obstructing their possession is false and is a manufactured plea. It was denied that the Tambes had ever taken Jawar crop or that the Idhates have interfered with their possession while the Tambes were trying to water the crop. It was denied that there was any cause of action for the suit. It was contended that while injunction has been claimed, claim for possession could not be claimed and would not be tenable. It is averred that the Idhates' predecessor Balwant Idhate had been a man of simple and unsuspecting nature and taking disadvantage of the same, something in writing had been obtained by predecessor of the Tambes. However, no sooner Balwant had realized that he is being deceived, than Maruti Tambe had never been allowed entry over suit land and that since 1940 till date, predecessor of the Idhates and now the Idhates have been in possession as owners of the suit land and also that the suit for possession is outside the period of limitation and has been mischievously filed. It is further averred that from last forty to forty-five years, the Tambes have been residing at Rahuri Sugar Factory and they had never been to Koregawhan and there is no substance in their claim about them being in possession. The Idhates, as such, claimed compensatory costs of Rs.10,000/- and prayed for dismissal of suit with costs. 16. In suit No. 8 of 1985 issues were framed to the effect whether the Idhates prove that they are entitled to be declared as S.A.29/2003 11 owners, whether they prove to be in possession of suit land, whether there was any obstruction by the Tambes to their possession and about their entitlement to injunction. Whereas, in the other suit bearing No.41 of 1985 instituted by the Tambes, issues were, whether the Tambes prove their title over suit property as well as possession, whether there had been obstruction at the hands of the Idhates to their possession and whether the Idhates prove that they had perfected their title by adverse possession and whether the Tambes are entitled to possession and whether the Idhates prove the suit by the Tambes to be outside limitation. 17. Both the suits bearing regular civil suit no.8 of 1985 and 41 of 1985 were tried before the same court and common oral evidence was considered at the request of parties. 18. The trial court decided all the issues simultaneously. The trial court appreciated that in or after 1940, name of Maruti Tambe started appearing in ownership column of 7/12 extracts whereas name of Balwant Idhate continued to be shown in cultivation column and the position continued till about 1978 and there had been alteration in the same around 1979-80 and the Tambes name started appearing in cultivation column as well as ownership column in 7/12 extracts and same continued till 1983-84. The trial court considered that the sale-deed is of 1940 and has referred to S.A.29/2003 12 that in 1947, there had been suit instituted by the Tambes for possession bearing no. 8 of 1947 and further that under the judgment and decree therein, the Idhates were required to pay a sum of Rs.268.80 to the Tambes towards mortgage amount. None of the parties had challenged the decision in regular civil suit No. 8 of 1947. It was further considered that, said amount had not been paid by the Idhates to the Tambes nor any proceedings had been initiated by the Idhates for redemption of mortgage and that the limitation prescribed for filing suit for redemption of mortgage is 30 years. The court, upon said background has considered that the relationship of mortgagor and mortgagee subsisted till 1978. In the circumstances, the court found that there was no propriety in the claim of the Idhates to claim possession as owners. The court has also taken into account submissions made on behalf of the Idhates that when decree had been passed declaring entitlement of the Tambes to recover amount of Rs.268.80 from the Idhates why the Tambes had not filed suit for recovery of mortgage amount. It appears to have been considered by court that failure to adopt proceeding for redemption would tantamount to denial to act as mortgagor and the Idhates did not utilise the opportunity coming their way to make use of the position and continued to be under impression of their possession being adverse without doing anything. 19. The court had considered that since no movement for S.A.29/2003 13 redemption of mortgage had been made by the Idhates, the Tambes properly and diligently got their names mutated in the possession column on expiry of period of limitation for redemption of mortgage. According to trial court, on expiry of thirty years' period for redemption, the mortgage recoiled to its position of it being a sale giving title as owners to the Tambes as the mortgage was considered to be a mortgage by conditional sale. 20. It appears to have been considered by trial court that it would be difficult to believe that the Idhates would wait for thirty years from the date of decree in regular civil suit No. 8 of 1947. The Tambes neither have got money back nor they did have possession under the transaction of 1940 and in the circumstances, the court considered that the claim of the Tambes to be probable one. 21. It appears to have been considered that the Idhates had challenged the revenue entries which then were showing the Tambes to be in possession, however, against the order of sub- divisional officer, the Idhates had not made any approach. The Idhates were paying land revenue of the suit field on behalf of the Tambes which position is clear from the receipts which had been produced. In the circumstances, the trial court held that the Idhates were not entitled to claim adverse possession and that the Tambes had been cautiously taking action. S.A.29/2003 14 22. Although it was submitted that since there is no dispute so far as facts are concerned, the decision would rest on the law points, but the trial court had considered that in its opinion, the suit is neither based on facts nor on law points, but clearly on logical conclusions. It thus, appears, trial court has considered that on expiry of period of limitation for redemption of mortgage, the Tambes got into possession of the suit land. It has been observed that throughout the proceedings the Idhates laid emphasis on the possession of the land being adverse to the interest of the Tambes. 23. The trial court referred to judgment of supreme court in the matter of “Bhojumandal vs. Deb Nath Bhagar”, reported in AIR 1963 SC 1906 and considered that the authority is applicable to the facts and circumstances of the case on hand, whereas authority cited on behalf of the Idhates viz; Nayar Service Society Limited vs. K.S. Alexander, reported in AIR 1968 SC 1965, was considered to be non-applicable to the facts. 24. Thus, the trial court concluded that the Idhates are not entitled to be declared as owners in possession and that there is no proof of obstruction to their alleged possession and consequently, they would not be entitled to secure injunction. It was considered that the Tambes proved their title as well as possession over the suit land and obstruction at the hands of the S.A.29/2003 15 Idhates and since the Tambes being in possession of suit property, resultantly entitled to the injunction. 25. The trial court under common judgment delivered on 17-03- 1997 had dismissed regular civil suit No. 8 of 1985 instituted by the Idhates and decreed regular civil suit No. 41 of 1985 instituted by the Tambes and restrained the Idhates from obstructing the Tambes possession over the suit land. 26. At the instance of the Idhates, matters were carried in two appeals bearing regular civil appeal No. 211 of 1997 and regular civil appeal No. 212 of 1997 against the judgments and decrees in regular civil suit No. 8 of 1985 and 41 of 1985, respectively and both the appeals were dismissed under judgment and decree dated 25th September, 2002. 27. The appellate court had simultaneously dealt with the two regular civil appeals framing a single point for determination, as to whether interference is called for in the judgments and decrees passed by the trial court dated 25th September, 2002. 28. The appellate court found that the transaction of 1940 had been considered to be of the nature of mortgage in the decree passed by court in suit by the Tambes bearing regular civil suit No. 8 of 1947. The appellate court further considered that Maruti Tambe had not been in possession of suit land in the year 1948 S.A.29/2003 16 and 7/12 extracts on record show that he was being shown as owner of the suit land since 1935-36. However, in the year 1941- 42, Balwant Govind Mali was cultivating the land and position continued as observed by the trial court till 1973-74 and from 1974-75 till 1977-1978. After the death of Maruti Tambe, name of his son started appearing in ownership column. Since 1979-80 to 1982-83 and thereafter, name of son of Maruti Tambe – Sakharam, started appearing in cultivation column. The appellate court considered that 7/12 extracts from 1974-75 till 1977-78 shown name of Sakharam Maruti Tambe, son of Maruti Tambe in ownership column and from 1979-80 till 1982-83, name of Nana Balwanta was appearing in column of possession and thereafter position had been changed and name of Sakharam Maruti Tambe started appearing in column of cultivation. The appellate court has observed that in the years 1981 to 1984, Sakharam Maruti Tambe's name is appearing in ownership as well as possession column and the suit of Sakharam Maruti Tambe for grant of injunction is of 1985. The appellate court has considered the revenue entries show name of Maruti Tambe in cultivation column for the years 1964-65 and 1965-66 and thereafter, name of Maruti is appearing in ownership column till 1973-74 and further name of Balwant Idhate is shown in column of other rights and from there it culled out the inference that possession was of the Idhates. It has further been noted by appellate court that the the Idhates denied S.A.29/2003 17 to admit the ownership of the Tambes. Record depicts that the land revenue was being paid by the Idhates for the Tambes. The revenue entries according to appellate court depict the relationship as appearing would show that the Idhates would not be able to stake claim to title by way of adverse possession against the Tambes. It is further considered that the relief of injunction is discretionary and as the Idhates were not in possession of the land in the year 1982-83, they are not entitled to injunction, finding that Sakharam Maruti Tambe had been in possession over the land in the year 1982-83, his name was appearing in ownership column as well as possession column. As such, the decision rendered by the trial court has been confirmed by the appellate court. 29. While two appeals, against the decisions in regular civil appeals No. 221 and 222 of 1997 bearing second appeals No. 28 of 2003 and 29 of 2003 respectively, were admitted, Honourable Judge of this court under order dated 11th July 2007 has framed following substantial questions : “ (i) Whether in the facts and circumstances of the present case, the first appellate court committed patent error while deciding the appeal only by raising single point for determination which is rather of sweeping nature and that the judgment of the first appellate court does not reach to the close quarters of the reasoning of the trial court in context of the controversial issues ? (ii) Whether in the facts and circumstances of the present case, mere declaratory decree granted by the civil court in the previous suit S.A.29/2003 18 (R.C.S. No.8/47) by itself could give right to the respondents to enter into possession of the suit land without execution of the said decree in any manner or that without there being subsequent redemption of mortgage and actual delivery of possession by the deceased