spb/- 1 5-10-ca1152-1153-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL APPLICATION NO.1152 OF 2010 IN SECOND APPEAL NO.374 OF 2008 Sunanda alias Chingubai Bharmu Porlekar ... Appellant. R/at Rangoli, Tal. Hatkanangale, Dist. Kolhapur V/s. 1 Shri Sukumar B. Porlekar, since deceased through his legal heirs : Shri Abhinandan Sukumar Porlekar & Ors. ... Respondents. And 1 Raygonda B. Hande & Others ... Applicants ­­­ WITH CIVIL APPLICATION NO.1153 OF 2010 IN SECOND APPEAL NO.374 OF 2008 1 Raygonda Bapu Hande & Others ... Applicants V/s. Sunanda alias Chingubai Bharmu Porlekar ... Respondents. ­­­ Mr. P. D. Dalvi, for the Applicants in C.A. Nos.1152 & 1153 of 2010 Mr. N. J. Patil for Appellant in S.A. No.374 of 2008 Mr. A. P. Shinde i/b. Mr. A. M. Kulkarni for Respondent Nos.1 to 5. ­­­­ CORAM : G. S. GODBOLE, J. DATE : 05th OCTOBER, 2011. P.C. : 1 Heard Mr. P.D.Dalvi for the Applicants in both the Civil Applications, spb/- 2 5-10-ca1152-1153-10.sxw Mr. N.J. Patil for the original Appellant and Mr. Shinde, Advocate for the original Respondents in the Second Appeal. 2 C.A.No. 1152 of 2010 is filed for impleadment of the Applicants as party Respondents in the Second Appeal in which an Affidavit­in­Reply has been filed by the Respondents. 3 C.A. No. 1153 of 2010 has been filed for the following substantive relief: (a) the impugned Judgment and Order dated 30.8.2008 passed by this Honourable Court in Civil Application No. 957 of 2008 in Second Appeal No. 374 of 2008, be quashed and set aside to the extent of the Applicants’ land in Gat No. 1038, area 0.16 R, at its Western Side, situated at Village Rangoli, Taluk Hatkanangale, District Kolhapur; 4 Affidavit­in­Reply is also filed by the Respondents even in this Civil Application. Though original Appellant has not filed any Affidavit­in­ Reply, Mr. N.J. Patil has opposed both the Civil Applications during the course of the argument. spb/- 3 5-10-ca1152-1153-10.sxw 5 Admittedly, the Applicants are not party to the suit from which the present Second Appeal arises. 6 The Appellant in Second Appeal is original Defendant in RCS No. 166 of 2001 filed by late Sukumar Baburao Porlekar for possession on the basis of the title by claiming that late Bharmu Porlekar who was one of the Sons of late Dada Porlekar had allegedly bequeathed the suit property bearing Gat No. 1038, admeasuring 32 ares, Gat No.1039, admeasuring 35 ares and CTS No.46 and 52 to the Plaintiff as a legatee of late Bharmu. It is claimed that under the Will dated 8.4.1991 Bharmu had appointed Sukumar, son of Baburao Dada Porlekar as legatee, that Sukumar had obtained a probate no. 26/1999 and had accordingly become owner. The learned C.J., S.D., Ichalkaranji dismissed the suit on 1.6.2007, leading to filing of Reg. Civil Appeal No. 35 of 2007 before the learned District Judge, Ichalkaranji. By Judgment and Order dated 3.1.2008, the learned District Judge, Ichalkaranji allowed the said Reg. Civil Appeal No. 35/2007. As a result, the present Second Appeal has been filed by the original Defendant Sunanda. The Second Appeal has been admitted by order dated 30th August, 2008 by Justice J.H. Bhatia, J. In C.A. No. 957/2008 by an interim order dated 30th August, 2008, a Court Receiver was appointed for the suit property and Court Receiver was directed to spb/- 4 5-10-ca1152-1153-10.sxw appoint the Appellant in Second Appeal being original Defendant ­Sunanda as agent of the Court Receiver. 7 The Applicants in Civil Application claim that on 8th June, 1987, Appa Balwant Porlekar had executed a Sale Deed only in respect of ½ portion, admeasuring 0 H. 16 R from the land bearing Gat No. 1038 at village Rangoli for sum of Rs.7000/­ and that late Appa continues to be the owner and in possession of the remaining 16R. It is further claimed that the said Appa died and thereafter his widow Akkatai and minor son Jeenendra executed a registered Agreement For Sale dated 18.8.1998 in favour of the present Applicants by agreeing to sell land bearing Gat No. 1030 in its entirety and 16R land from Gat No. 1038 for total consideration of Rs. 1,35,000/­. It is further claimed that thereafter even said Akkaktai died and hence, Jeenendra Appaso Porlekar being minor son continued to be exclusive owner and his maternal uncle Annapa Bhau Hegale filed M.A. No. 260/1998 in the District Court at Kolhapur under the provisions of Hindu Minority and Guardianship Act, which was allowed on 25.10.1999 and pursuant to the said order, the Sale Deed dated 27.10.1999 was executed in favour of the Applicants in respect of the Gat No. 1030 and 16R from Gat No.1038. spb/- 5 5-10-ca1152-1153-10.sxw 8 The Applicants claim that pursuant to this Sale Deed and the earlier Agreement For Sale dated 18.8.1998 they are in physical possession of 16 R from Gat No. 1038 and hence, the decree passed by the District Court is not binding on them. It is claimed that though the Applicants are not parties, contrary to the mandate of Order 40, Rule 1 of the Code of Civil Procedure, 1908 they are likely to be dispossessed and hence, at least in respect of 16R of the land bearing Gat No. 1038, the order deserves to be vacated. 9 On the other hand, the learned Advocates for the original Appellant and the original Respondent in the Second Appeal have opposed this Civil Application. Relying on the recitals of the Sale Deed dated 8.6.1987 it is submitted that Bharmu Porlekar was the owner of the remaining ½ undivided land from Gat No. 1038 and being purchaser of remaining ½ undivided land from deceased Appa Bharmu he became exclusive owner of the entire land and hence, no land was left with Appa from Gat No 1038. It is pointed out that the Sale Deed dated 8.6.1987 acknowledges that Bharmu was already in exclusive possession of the entire land bearing Gat No. 1038 and hence, widow and son of Appa Porlekar could not have transferred and land or entered into any Agreement For spb/- 6 5-10-ca1152-1153-10.sxw Sale with the Applicants nor could have son of Appa transferred any title to the Applicants. 10 I have carefully considered the rival submissions. From the documents annexed to C.A. No 1153/2010 by the Applicants themselves and, particularly, from the recitals in the Sale Deed dated 8.6.1987, it is clear that Appa Porlekar during his life time has specifically admitted the fact that the Bhurmu Porlekar was in possession of the entire land bearing Gat No. 1038. Prima facie the recitals of the Sale Deed clearly indicate that the deceased Appa Porlekar had acknowledged the fact that Bharmu Porlekar was having ½ undivided share in Gat No.1038 and by the Sale Deed said undivided share had been sold to deceased Bharmu. In that view of the matter, prima facie, the deceased Appa had no right left in the land beairng Gat No. 1038. 11 Mr. Dalvi, however, submits that the deceased Bharmu was not the owner of the remaining ½ share and according to Mr.Dalvi, Appa was the exclusive owner of the entire land and had sold only ½ undivided share. Even if this argument is assumed to be correct, one cannot ignore the recitals in the Sale Deed which clearly indicate that Appa had acknowledged the fact that Bharmu was in exclusive possession of the spb/- 7 5-10-ca1152-1153-10.sxw entire land bearing Gat No. 1038 and that possession was confirmed as owner by the recitals in the Sale Deed. It is also pertinent to note that in the Agreement For Sale dated 18.8.1998 executed by the widow and minor son of Appa as also in the Sale Deed dated 27.10.1999 executed by the maternal uncle of minor Son of Appa as guardian; there is no recital as to which portion of land admeasuring 16R from Gat No. 1038 is allegedly given in possession of the Applicants. Those documents are in respect of two lands and that in respect of other land bearing Gat No.1030, which is not the subject matter of the Second Appeal, there are specific recitals regarding the physical possession of the said land being handed over. 12 Mr. Dalvi relied upon the provisions of Order 40 Rule 1 and the Judgment of the Supreme Court in Anthony C. Leo vs. Nandlal Bal Krishna and contended that the Court cannot pass an order of appointment of the Court Receiver which has effect of dispossession of 3rd party who is in possession of the any property and hence according to Mr. Dalvi the order appointing the Court Receiver could not have been passed. There is no dispute about the principle of law. However, from the facts of this case and particularly from the recitals of the Sale Deed dated 8.6.1987, the conclusion is inevitable that Bharmu was in exclusive possession of the entire land bearing Gat No. 1038 and hence, spb/- 8 5-10-ca1152-1153-10.sxw the owner Appa Porlekar, his widow and minor son could not have handed over possession thereof for any portion of the Gat No. 1038 to the Applicants. The reliance placed by the Applicants on the revenue entries in the 7/12 extracts is also of no benefit to the Applicants. Entries in the revenue record merely raise a presumption which is rebuttable and in view of the recitals in the Sale Deed dated 8.6.1987, the said presumption has been duly rebutted. 13 Thus there is no merit in the Civil Application No. 1153 of 2010 filed for vacating the order appointing the Receiver. In so far as the C.A.No. 1152 of 2010 is concerned, though the Applicants cannot be joined as parties to the Second Appeal, since they are claiming rights in respect of ½ portion of one of the suit properties they can be permitted to intervene in the Second Appeal. 14 Hence I passed the following order:­ (i) Civil Application No.1152 of 2010 for intervention is partly allowed. Though the Applicants cannot be impleaded as parties in the Second Appeal, they are allowed to intervene in the Second Appeal for the limited purpose of being present at the time of final hearing of Second Appeal and only if they are called upon to assist the Court on any factual aspect considering Gat no.1038 for spb/- 9 5-10-ca1152-1153-10.sxw limited purpose. (ii) Civil Application No.1153 of 2010 is, however, rejected subject to the clarification that this order will not preclude the Applicants from filing appropriate suit in the Court of competent jurisdiction after obtaining leave of this Court to sue the Court Receiver, if, Receiver is to be impleaded as a party­ Defendant in the suit or to amend the plaint in Regular Civil Suit No.238 of 2006 which is already filed by them and pending in the Trial Court and seek relief of impleadment of Court Receiver in said suit and amendment of the prayer clauses in the said suit. If any such new suit is filed or amendment in RCS No.238 of 2006 is granted, such proceedings will be determined on its own merit without being influenced by this order and without being influenced by the fact that the Second Appeal is pending for adjudication in which the Applicants have been allowed to intervene. (iii) The order appointing Court Receiver will continue but that will not affect the right of the Applicants to file appropriate suit as aforesaid or to file appropriate application for interim order in said suit and if any such application is made, the same will also be decided on its own merit without being influenced by this order and the pendency of the Second Appeal. spb/- 10 5-10-ca1152-1153-10.sxw (iv) The ad­interim order dated 15th October, 2010 passed in C.A. No.1153 of 2010 which is continued, is hereby vacated. (v) On the oral request of Mr. Dalvi, this order is stayed for a period of three months. (vi) However, this will not amount to stay of further proceedings in Regular Darkhast No.52 of 2008. [G.S.GODBOLE, J.] .....