1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 209 OF 1985 1. Ashok Laxmanrao Shinde, age major, occupation: Agril. resident of Wakadi (Ishtal), Taluka Kallam, Dist.Osmanabad. 2. Shatrughna Balbhimrao Jadhav, age major, occup.agriculture, Appellants/ r/of Wakadi ((shtal), Taluka: orig.Plaintiffs Kallam, District Osmanabad. versus 1. Govind Rama Bansode, age major,occup.agriculture r/of Wakadi (Ishtal),Taluka Kallam,Dist. Osmanabad. (Since deceased,through his legal heirs as under):- (i) Chandrakant Govindrao Bansode, age 45 years, occupation Agri. (ii) Vithal Govindrao Bansode, age 42 years, (iii) Ashok Govindrao Bansode, age 40 years, (iv) Rajabhau Govindrao Bansode, age 35 years, 2 (v) Atul Govindrao Bansode, age 29 years, (vi) Balaji Govindra Bansode, age 28 years, (vii) Shivaji Govindrao Bansode, age 26 years, All r/o Wakadi ((shtal) post:Ghargaon, Tq. Kallam. (viii) Nirmala Laxmanrao Bhandare, age 38 years, occupation : household, r/of Po. Wala, Taluka Renapur, Dist.Latur, (ix) Vijaymala Ramrao Nagishe, age 32 years, occupation: household, Po. Massa-jog, Taluka Kej, District Beed. (x) Surekha Maloji Choure, age 30 years, occupation: Po. Raghuji Wadi, Taluka and District Beed. 2. Maruti Yeshwanti Bansode, age major, occupation: agrculture, resident of Wakadi (Ishtal), Taluka: Kallam, Dist.Osmanabad. 3 3. Vishvambhar Yeshwant Bansode, age major, occupation Agril. r/of Wakadi (Ishtal), Taluka Kallam, District Osmanabad. 4. Ganpat Yeshwant Bansode, (since deceased, through his legal heirs as under):- 4(1) Kashibai w/o Ganpat Bansode, age major, 4(2) Balbhim Ganpat Bansodem age major, 4(3) Dnyaneshwar Ganpat Bansode, 5. Balbhim Ganpati Bansode, age major, occup. Agril. r/of Wakadi ((shtal) Tq. Kallam, District Osmanabad. 6. Pandurang Yeshwant Bansode, age major, occup.agriculture, resident of Wakadi (Ishtal) Tq.Kallam, Dist. Osmanabad. (7) Vithal Govind Bansode, age major, occup.agriculture, resident of Wakadi (Ishtal), Tq.Kallam, Dist. Osmanabad. 4 (8) Harischandra Ambadas Gayake, age major,occup.agriculture, resident of Wakadi (Ishtal), Respondents/ Tq.Kallam, Dist.Osmanabad. Ori.defts. ------------------------------------------------------ Shri S.P.Deshmukh, Advocate, for the appellants. Smt. C.E.Gaikwad, Advocate for Respondent No.1(i) to 1(ix) and Respondent No.8. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : June 15, 2010 ORAL JUDGMENT 01. This second appeal is preferred by original plaintiffs, whose suit bearing R.C.S. No. 159 of 1975 for perpetual injunction though decreed by the learned Civil Judge, Junior Division, Kallam on 25.11.1980, the said judgment and decree was reversed in Regular Civil Appeal No.160 of 1980 by the learned District Judge, Osmanabad, on 30.9.1985. 02. Briefly stated, it is the case of the appellants-plaintiffs that one Ratubai was the owner and possessor of lands bearing Gat Nos. 42 and 47 situated at village Wakadi, Taluka Kallam. 5 Ratubai was in need of money for meeting expenses of litigation. Ratubai, therefore, agreed to sell 1/2 portions of said Gat Nos.42 and 47 for Rs. 11,000/= to the present appellants-plaintiffs. Agreement for sale (Exh.129) was executed on 29.12.1967. Earnest amount of Rs.2,000/= was paid on that day. Thereafter on 16.3.1972 Ratubai received Rs.1,000/- more from appellants- plaintiffs as consideration and she executed a receipt to that effect and also delivered possession of the suit lands under the said receipt. Thus, the appellants-plaintiffs were put in possession of the suit lands in part performance of agreement for sale, but the defendants, who are not concerned with the suit properties, are disturbing plaintiffs' possession and hence present suit is filed for perpetual injunction restraining respondents-defendants from obstructing their possession and enjoyment over suit lands. 03. Before we proceed to consider defence of the Respondents-defendants, it is necessary to 6 refer to some history of previous litigation. Madhav, Yeshwant and Rama were the three brothers. Madhav was having son by name Shivdas who expired during life time of Madhav, leaving behind widow Ratubai. Madhav survived by his wife Kondabai, Ratubai and Manubai (widow and daughter of Shivdas respectively). Yeshwant was survived by his sons Respondents-Defendant Nos.2,3,4, and 6. Defendant No.5 is the son of Defendant No.4. Rama is survived by his son Govind-Defendant No.1. Defendant No.7 Vitthal is son of Govind. The said block Nos. 42 and 47 were allotted to the share of Madhav. Suits Nos. 62 of 1959 and 64 of 1961 respectively filed by Govind and Ratubai against each other were decided by a common judgment by which suit filed by Ratubai was decreed and that of Govind was dismissed holding that Ratubai was the owner and possessor of the said lands. Two Regular Civil Appeals (Nos.16 and 17 of 1962) filed by Respondent-Defendant No.1 Govind against the said judgments were decided by a common judgment by the learned District Judge, thereby dismissing the suit filed by Ratubai and decreeing 7 the suit filed by Govind. Ultimately, in Second Appeal No. 1156 of 1962 decided by By High Court on 12.9.1969 (Exh.61), it is held that Ratubai was the owner of the above said Gat Nos.42 and 47. However, the High Court also held that Ratubai was not in actual possession of the suit lands when she had filed suit for declaration and injunction and as such, this Court in second appeal refused to grant relief of perpetual injunction. 04. Respondents-Defendants No. 1 and 3 to 8 filed their written statement at Exhibit 35 and stated that they were in actual possession of the suit lands. Ratubai did not deliver possession of suit lands to the plaintiffs-appellants herein. Since plaintiffs were not in possession of the suit properties, they are not entitled to injunction. Defendant No.1 Govind also claimed that during lifetime of Kondabai (widow of Madhav), he was in possession as tenant of both the suit lands. It is also the case of Defendant No.1 Govind that he was in possession of suit lands in assertion of hostile title to both, 8 Ratubai and Kondabai. In the circumstances, Defendants prayed for dismissal of the suit. 05. The trial court came to a conclusion that the appellants-plaintiffs were in actual possession of the suit properties and the defendants were threatening possession of plaintiffs and, therefore, injunction was granted. The First Appellate Court held that the appellants-plaintiffs have failed to prove possession over suit properties and as such they were not entitled to injunction and therefore dismissed the suit. It is this judgment and order of the District Court which is challenged in present second appeal. 06. Second Appeal is admitted on following questions of law by order dated 18.10.1985. (i) Whether, title of plaintiffs' predecessor-in-title upheld by high court can be defeated by Respondents ? 9 (ii) Whether plaintiffs obtained possession as alleged by them from Ratubai-former occupant ? (iii) Whether Defendants can claim adverse possession in respect of suit lands. 07. In my opinion, the main question to be answered in this matter is not issue No. 3 regarding adverse possession, but the main issue is whether the defendants proved their possession over the suit properties. 08. Heard Shri S.P. Deshmukh, Advocate for the appellants and Smt. C.E. Gaikwad, Advocate for Respondent Nos. 1(i) to 1(x) and Respondent no.8. 09. Both, trial court and the first appellate court, have discussed the facts and evidence in details. In paragraph 11 of the judgment of the first appellate court, certain portion from the judgment of the High Court in Second Appeal No. 1156 of 1962 is reproduced wherein it is observed 10 that possession of Govind for some years after 1956 appeared to have been specifically admitted by plaintiff's own witnesses Kailas and Mahadu and even by the village Talathi who deposed as Plaintiffs' witness. The said Talathi admitted that he himself had made entries in the village records to the effect that Defendant No.1 Govind was unlawfully in possession of the lands. In the observations of the High Court quoted in para.11 of the judgment of the District Court, it is concluded that the learned District Judge was amply justified in holding on evidence as well as probabilities that on the date of the suit, the lands in dispute were in possession of Defendant No.1 and if that was so, relief of injunction could not be granted to the plaintiff. 10. So, it is argued even on behalf of present appellants-plaintiffs that the above said observations of the High Court only indicate that in 1962, when the suit was filed by Ratubai, Defendant No.1 Govind was in possession of the suit lands. However, that would not in any 11 disprove the case of the present appellants- plaintiffs that when they obtained receipt dated 16.3.1972 for payment of Rs.1000/= to Ratubai, Ratubai was in possession of property and she put the plaintiffs in possession of the property. 11. The first appellate court considered if there was any evidence produced on record to show that, in fact, Ratubai had dispossessed Respondent-Defendant No.1 Govind after year 1962. In paragraphs 14 onwards of the judgment, the first appellate court considered this aspect and observed that since Ratubai was not in possession and it was never her case that she forcibly dispossessed Respondent no.1 Govind. So, she could not have given actual possession to the appellants-plaintiffs. It is also observed that there is no recital in the original agreement for sale dated 29.12.1967 (Exh.129) that possession was to be delivered at the time of execution of the sale deed. No definite date of execution of sale deed was agreed. It is not pleaded by 12 appellants-plaintiffs that Defendant No.1 Govind voluntarily surrendered possession to Ratubai. The case all along even of Ratubai in her deposition (Exh.146) is that Respondent No.1 Govind was never in possession of the suit property and, therefore, there was no question of getting possession from him. Question was asked to Ratubai whether she had obtained possession from Respondent No.1 Govind by force after filing R.C.S.No.64 of 1961 and the answer given was that she had been already in possession and, therefore, there was no question of getting forcible possession from Govind. These question-answers are in para.9 of deposition of Ratubai at Exh.146. The first appellate Court observed that in view of finding given by the High Court, it could not be believed that Ratubai was in possession of the suit property since beginning. In the circumstances, in absence of either taking forcible possession from Govind by Ratubai, or by surrender of possession by Govind in her favour, it is observed that there should be presumption that Defendant no.1 Govind continued to be in possession of the suit properties. 13 12. It is argued before this court that the revenue record all along shows possession of Ratubai. But, we also find some entries made in the revenue record, indicating that Respondent No.1 Govind was in unlawful possession of the suit lands and those entries were duly proved by the person making those entries. It is also not disputed that litigation between Ratubai and her successors-in-title i.e. present plaintiffs on one hand and Respondent no.1 Govind on the other, was fought from 1962 onwards. In paragraph 16 of its judgment, the first appellate court has also referred to the certified copy of judgment in Special Civil Suit No.12 of 1977 which was originally bearing R.C.S. No.166 of 1975 filed by Ratubai against Defendant No.1 Govind for possession of lands. The said suit was dismissed holding that defendant No.1 perfected his title by adverse possession. It is rightly observed by the learned District Judge that if Ratubai was really in possession of suit properties in 1975, she had no reason to file suit for possession of portions of lands against Govind. In my considered opinion, 14 this circumstance is a very weighty circumstance going against Ratubai and appellants and in favour of Respondent No.1 Govind. 13. It is argued by Shri S.P.Deshmukh, learned Advocate for appellants-plaintiffs that the said suit R.C.S. No.12 of 1977 (old No.166 of 1975) was in respect of portions of lands Gat Nos. 42 and 47 which portions were not sold to present appellants-plaintiffs. However, we will have to consider the case of Ratubai who was one of the important witnesses of the Plaintiffs. It is not the case of Ratubai that Defendant No.1 Govind was in possession of some portions of the suit lands and she had sold remaining portions of suit lands to present plaintiffs-appellants. 14. The District Court in paragraphs 17 and 18 of its judgment discussed oral evidence led by the parties. It was observed that even the plaintiff Ashok admitted that there was no demarcation of 1/2 portions of the lands of survey numbers when possession was given to him. Learned 15 District Judge also pointed out that there was inconsistency in evidence as to where the receipt 16.3.1972 was written and who were the persons present at that time. It is observed that the receipt itself is of doubtful nature. So far as mutation entries in favour of the appellants- plaintiffs are concerned, Defendant No.1 had preferred revision before the Divisional Commissioner against those entries and, therefore, it is observed by District Court that the entries are not final. Naib Tahsildar Shri Dange (PW-7, Exh.160) in para.5 of his cross examination admitted that possession of Respondent No.1 Govind was not disturbed in the year 1971-72 to 1974-75 in the revenue record. 15. After considering judgment of the trial court, so also of the first appellant court and also considering the arguments advanced by the learned counsel for the respective parties, in my opinion, the view taken by the first appellate court is a reasonable view based on material on record and, therefore, it cannot be said to be 16 perverse view. 16. Shri S.P.Deshmukh, learned counsel for the appellants relied upon the case of Shekoji vs. Motiram, 2007 (1) Mh.L.J. 747. It is observed therein that, the appellate court while exercising its powers has to be more careful in case of reversal of the judgment of the trial court. The evidence led on behalf of the parties and accepted by the trial Court has to be considered by the first appellate court. In the facts of that case, the court came to the conclusion that the first appellate court committed error in reversing the finding of fact recorded by the trial court. It was also observed that the finding of the first appellate court regarding mutation entry was perverse. That was the finding in the facts of that particular case. 17. In the present case, it cannot be said that the District Court has defeated the finding on title of plaintiffs' predecessor (Ratubai) upheld by the High Court by holding that the 17 present plaintiffs were not in possession of the suit properties. Right of Ratubai to execute agreement for sale was never challenged. It is not challenged that she was declared to be owner of the suit properties by the High Court in previous litigation. All that is held by the District Court is that the plaintiffs failed to prove their possession over the suit properties. Even the High Court in earlier round of litigation had refused to grant perpetual injunction in favour of Ratubai holding that she failed to prove her possession as on the date of the suit. 18. In the facts and circumstances of the case, in my opinion, appellants-plaintiffs have failed to prove that they had obtained possession of the suit lands as per receipt executed on 16.3.1972. In this case, in my opinion, we are not concerned with plea of adverse possession set up by Respondent No.1. 19. Having regard to the above discussion, in my opinion, this is not a case requiring 18 interference in the finding of facts recorded by the first appellate court. In the result, this second appeal fails and is, accordingly, dismissed. 20. Prayer of learned counsel for appellants to stay this order is rejected. pnd/sa209.85 (P.R.BORKAR, J.)