IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL SECOND APPEAL SECOND APPEAL NO.913 OF 2005 NO.913 OF 2005 NO.913 OF 2005 with with with CIVIL APPLICATION NO.198 OF 2006 CIVIL APPLICATION NO.198 OF 2006 CIVIL APPLICATION NO.198 OF 2006 with with with CIVIL APPLICATION NO.I457 OF 2006 CIVIL APPLICATION NO.I457 OF 2006 CIVIL APPLICATION NO.I457 OF 2006 Vasudev Ganesh Deshpande (Since deceased) through legal heirs ..Appellant versus Manohar Kashinath Deshpande ..Respondent. Mr. A.Y.Sakhare for the Appellant Mr.V.B.Naik for the Respondent Coram : S.R.Sathe, J. Coram : S.R.Sathe, J. Coram : S.R.Sathe, J. Dated : 3rd April, 2006 Dated : 3rd April, 2006 Dated : 3rd April, 2006 ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. Appellant the Original Defendants in Regular Civil Suit No.544 of 1989 have preferred this appeal against the Judgment and Order passed by the Court of 4th Additional District Judge, Kolhapur in Regular Civil Appeal No.87 of 2000, whereby, the appeal was allowed and the judgment and order passed by the trial Court dismissing the plaintiffs suit for permanent injunction was set aside and defendants were perpetually restrained from causing 2 obstructions to the plaintiffs possession and enjoyment of the suit property. For the sake of convenience hereafter the parties shall be referred to as plaintiff and defendants. 2. In order to appreciate the brief facts giving rise to this appeal it would be worthwhile to set out the genealogy showing the relationship between the parties to the proceeding as shown in the written statement of the defendant. Vithalrao Deshpande ! ------------------------------- ! ! ! Narayan Gopal Hari ! ! ! ____________ Shridhar Indira ! ! ! ! Vasudev Kamala -------- ---------- (org.Deft. ! ! ! ! No.1-went in Srinivas Srikant ! ! adoption to ! Manohar Nandkumar Ganesh Deshpande) Ajit ! ! Pramila Nalini (Pltf.1) ! ! ! _______________________________ ! ! ! ! ! ! Akka Sangeeta Eknath Harish ! (Pltf.4) (Pltf.5) (Pltf.2) (Pltf.3) ! ________________ ! ! ! Narendra Prashant Umesh 3. It is the case of the original plaintiff 3 Indirabai that she had filed Special Civil Suit No.361 of 1947 in respect of possession of the suit lands and accordingly decree was passed in her favour. The said decree was confirmed in First Appeal No.465 of 1950 decided on 9.9.1955 by the High Court of Judicature at Bombay and she received the possession of the suit land on 23.4.1957 through Court. On the basis of Kabje Pavti Kabje Pavti Kabje Pavti her name was recorded in the Revenue Record of the suit land in the year 1965. After the death of Indirabai, in the year 1968 her son Manohar started cultivating the suit land as owner. However, his name was not entered in the revenue record. 4. According to plaintiff’s though the defendant Nos.1 and 2 had no concern with the said land they started obstructing the plaintiffs possession. They also raised dispute about the mutation entry No.729 and 993 whereby the name of Indirabai was entered in the record of rights. However, the application preferred by the defendants was rejected by the Tahsildar and the defendant therefore preferred RTS Appeal No.84 of 1986 and in that appeal Tahsildar Order was set aside and fresh inquiry was directed in respect of the mutation 4 entry No.993. As Indirabai was in possession since 13.4.1957 and defendants obstructed the said possession, plaintiff Manohar Deshpande filed suit for permanent injunction restraining defendants from obstructing the plaintiffs possession of the suit land. During pendency of the said suit Manohar died and his heirs were brought on record. 5. Deceased Defendant No.1 Vasudev and Defendant No.2 Kamlabai filed written statement exhibit 18 and denied plaintiff’s title as well as possession of the suit property. They contended that their ancestor Vitthalrao Deshpande had three sons namely Narayan, Gopal and Hari. However, Hari was not seen since 1945-46 and he was presumed to be dead. All the three sons of Vitthalrao were in fact having joint family and the suit lands were joint family properties. When dispute arose between the said three brothers about the said property, dispute was referred to arbitration and as per the said arbitration award the lands at Tisangi were allotted to the share of Narayan and Hari to the extent of 1/2 share each. Thereafter Vasudev was given in adoption to Ganesh Deshpande. Narayan gave his 1/2 share in the suit property of Tisangi to Defendant 5 No.1 by Gift Deed dated 25.4.1949 and defendant started cultivating the same. According to defendant even in the suit bearing No.36 of 1947 filed by Indirabai she had alleged that 1/2 share of Hari Vitthal was in possession of Shridhar Gopal Deshpande and therefore she had claimed possession of the said share in the above suit. However, the said matter was finally compromised in First Appeal No.460 of 1950. So, according to them, as per the said compromise also Indirabai was owner to the extent of 1/2 share and the remaining half share is owned and possessed by the defendants. According to defendant, the plaintiff joined hands with the revenue authorities and got their names entered in the record or rights. The defendants therefore contended that plaintiffs are not in exclusive possession of the suit property and as such they are not entitled for injunction. Hence on all these grounds defendants prayed for dismissal of the suit. 6. During pendency of the suit the Original Defendant No.1 Vasudev Ganesh Deshpande died and his heirs were brought on record. They filed pursis Exhibit 23 and adopted the written statement filed by the defendants. 6 7. On these pleadings the trial court framed issues at Exhibit 45. After considering the oral and documentary evidence adduced by both the parties the learned trial Judge came to the conclusion that plaintiffs have failed to prove their exclusive title and possession of the suit property and defendants had never obstructed plaintiff. The learned Judge, therefore, dismissed the plaintiffs suit for permanent injunction. 8. Being aggrieved by the above mentioned order the heirs of the original plaintiffs filed Regular Civil Appeal No.87 of 2000 in the Court of 4th Additional District Judge, Kolhapur. After hearing the arguments advanced by both the sides the learned First Appellate Judge, came to the conclusion that plaintiffs have proved their exclusive title and possession of the suit property and the defendants are unlawfully obstructing them. Naturally, he allowed the appeal and set aside the decree passed by the trial Judge and passed decree for permanent injunction against the defendants. 9. The above mentioned order is challenged by 7 the defendants in the present Second Appeal. By consent I have heard both the parties finally at admission stage. 10. In this appeal before me Shri Sakhare, learned Senior Counsel for the defendants has urged only three points. Firstly, he submitted that from the evidence on record it is very clear that there was dispute with regard to property between Narayan, Gopal and Hari the sons of Vitthalrao and the suit dispute was referred to Arbitrator and Arbitration Award was passed. This position is admitted by both the sides. He, therefore, submitted that the said Arbitration award has bearing on the dispute in this matter and as such the defendants be permitted to adduce additional evidence and place the said arbitration award on record. Secondly, he canvassed before me that the plaintiffs cannot be allowed to take any stand contrary to the said arbitration award because the shares of the parties have already been determined by the said award. Lastly, he submitted that there was no sufficient evidence to show that plaintiffs had exclusive title to the suit property and that they were in exclusive possession of the same on the date of the suit. He, therefore, 8 submitted that the appeal be allowed and the order of injunction passed against the defendants be set aside. As against this Shri Vinit Naik, learned Advocate for the plaintiffs supported the judgment and order passed by the trial court. He submitted that the arbitration award on which now the defendant wants to rely was no produced by them in the Courts below though they were having sufficient opportunity in that behalf and as such now in this Second Appeal they cannot be allowed to lead additional evidence. Secondly, he argued before me that there is abundant evidence on record to show that Indirabai got possession of the lands in question in execution proceeding through Court and the defendants are not at all in possession of the suit land. He, therefore, submitted that the First Appellate Court had rightly decreed the suit in plaintiff’s favour. 11. From the perusal of the judgment of the First Appellate Court as well as from the submission made before me it is first necessary to find out as to whether the defendant is to be allowed to lead additional evidence as alleged. The substantial question of law which falls for consideration in 9 this matter is whether the finding recorded by the First Appellate Court that plaintiffs have proved that on the date of the suit they were in possession of the suit land and it was referable to valid title can be said to be perverse. My answer is in the negative for the following reasons: 11. The genealogy set out earlier is not in dispute It is in fact an admitted fact that there was dispute between the sons of Vasudev Deshpande regarding the joint family property and the said dispute was referred to the arbitrator and the arbitrator had passed the award. However, admittedly, the said award was not produced by either parties during the pendency of the suit or the first appeal. It is for the first time the defendants have submitted an application in this court to lead additional evidence and produce the said arbitration award. At the outset,it must be mentioned that the defendants have not at all given any explanation, leave aside satisfactory explanation, as to why the said arbitration award was not produced in the court earlier though the matter was pending in trial court as well as the first appellate court for years together. It is 10 needless to say that for producing any document for the first time in the Second Appellate Court, the party has to make out good case under Order 41 Rule 27 of the code of Civil Procedure. From the perusal of the defendants application it is very clear that it is not their case that they were not aware about the award in question when the matter was pending. Nor there is anything on record to show that the defendants made genuine efforts to find out the said award, but, inspite of such effort and due diligence they could not get the same. So, when the defendants have not given any such explanation for not producing the award in the courts below it cannot be said that the defendants have made out a case under Order 21 Rule 27 of CPC. Incidently, it must be noted that the alleged award in question is also not signed by any of the parties. Not only that, but there is no endorsement appearing on the said award to show that the same was produced before the Court. So, under such circumstances, the application to produce the said award in question is not allowed and the application to that effect has been rejected. 12. From the perusal of the complaint it is very 11 clear that the plaintiff has filed the suit simplicitor for permanent injunction. The plaintiff has specifically averred that in execution proceeding filed on the basis of the decree passed in first Appeal No.465 of 1990 Indirabai received possession of the suit land in the year 1957 and since then Indirabai was in possession of the suit land and after her death her son Manohar was and is in actual possession of the suit land. The plaintiff has produced at Exhibit 70 the compromise decree passed in first appeal No.465 of 1950. The plaintiffs have also produced the certified copy of the execution petition and the possession receipt Exhibit 377 passed in the said execution proceeding. From the perusal of the same it is very clear that in view of the possession warrant issued by the Executing Court (Exhibit 68) Indirabai got the possession of the suit land. Not only that, but on the basis of the said possession receipt, name of Indirabai was entered in the record of rights and the mutation entry No.729 was effected. However, the mutation entry was disputed by the defendants and as a result of the same mutation entry No.293 was effected. However, ultimately in RTS Appeal No.136 of 1980, the Additional Collector, Kolhapur 12 passed an order in favour of plaintiff on 26.9.1989. The said order is produced at exhibit 69. There is nothing on record to show that the said order of the collector is challenged by the defendants in any higher court. So, the said order has become final and from the perusal of the same also it has to be held that the entry in the name of Indirabai was right. 13. Though, the defendants have tried to establish that Indirabai was not the sole owner of the property in question, but she had only one half share in it, the defendants have not adduced any cogent evidence in that behalf. As against this, the plaintiff’s witness Eknath Manohar Deshpande exhibit 67 has stated that the plaintiffs are the owners of the suit land. Merely because name of defendant Nos.1 and 2 remained in revenue record of the suit lands for some time one can’t jump to the conclusion that the defendants had 1/2 share in the suit land. On the contrary, even the defendants witness Vitthal Vasudev Deshpande Exhibit 250 has admitted that RTS appeal No.136 of 1989 was decided in favour of plaintiff and that Indirabai had received possession in pursuance of the decree 13 passed by the Honourable Court and Mutation Entry No.729 was effected thereafter on the basis of the said decision. Both the parties have produced certain receipts to show that sugar cane cultivated out of the said land was sent to the sugar factory by them. However, the said receipts by themselves are not sufficient to prove possession as they are not indicating the number of the land from which the sugar cane was supplied. On the basis of Kabje Pavti executed in execution proceeding filed in pursuance of the decree passed in first appeal, the first appellate court has rightly held that the plaintiffs have proved their possession of the suit land on the date of the suit. As they had received the said possession admittedly under the execution proceeding through court, it has to be held that there possession was referable to valid title. Thus, it appears that the First Appellate Court has rightly considered the entire evidence on record and correctly held that the plaintiffs have proved their possession to the suit land on the date of the suit and decreed the suit in plaintiffs favour. There is no error of law in the judgment passed by the First Appellate Court. 14 14. In this view of the matter, there is no substance in this appeal. The Appeal is dismissed with costs. (S.R.Sathe, J.)