1 SA99/1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 99 OF 1993 1 Dhondiba s/o Bhujanga, Died Per Lrs. Appellants 1-A Bujanga s/o Dhondiba Baswante, Age 39 years, Occupation Service in S.T. Corporation, At Kandhar Depot, Resident of Panshewadi, Taluka Kandhar, District Nanded 1-B Namdeo s/o Dhondiba Baswante, Age 32 years, Occupaton Labourer, Resident of as above 1-C Dnyanoba s/o Dondiba Baswante, Age 24 years, Occupation Student, Resident of as above 1-D Pralhad s/o Dhondiba Baswante, Age 16 years, Minor, under guardianship of brother Petitioner-Appellant No. 1-A, resident of as above 1-E Pirabai w/o Dhondiba Baswante, Age 62 years, Occupation Household, Resident of as above 2 Rukhminibai w/o Nivrati Waghmare, Age 44 years, Occupation Labourer, Resident of Pokhar, Taluka Kandhar, District Nanded 3 Jalbabai w/o Kishanrao Babhale, Age 44 years, Occupation Labourer, Resident of Rath (Khurd), Taluka Kandhar, District Nanded 4 Susheela w/o Jalba Kundale, Age 28 years, Occupation Household, Resident Wajaarwada,Taluka Ahmedpur, District Latur V E R S U S 1 Mohammed Khaja s/o Mohd. Gaji, since died, through legal heirs Respondents 1-A Jubeda Begum w/o Khaja (wife), Age 50 years, Occupation Household, Resident of Mohalla Khadak, Kandhar, Taluka Kandhar, District Nanded 1-B Gore Pasha s/o Mohammed Khajam, Age 28 years, Occupation Education, Resident of as above 1-C Miya s/o Mohammed Khaja, Age 21 years, Occupation Education, Resident of as above 1-D Matin s/o Mohammed Khaja, Age 15 years, Minor under guardianship of mother Jubeda Begum w/o Khaja, Occupation Education, Resident of as above 1-E Magdum s/o Mohammed Khaja, Age 12 years, Minor, under guardianship of his mother Jubeda Begum w/o Mohammed Khaja, Resident of as above 2 SA99/1993 2 Kailas Puri s/o Ganga Puri, Age 62 years, Occupation Agriculture, Resident of Kandharwadi, Taluka Kandhar, District Nanded 3 Rukhaminibai w/o Govindrao, Age 52 years, Occupation Household, Resident of Kandharewadi, Taluka Kandhar, District Nanded 4 The State of Maharashtra, Through Collector, Nanded 5 Vithabai w/o Bapurao More, Age 46 years, Occupation Agriculture, Resident of Panshewadi, Taluka Kandhar, District Nanded 6 Prabhakar s/o Bapurao More, Age 24 years, Occupation Agriculture, Resident of as above 7 Pirsaheb s/o Kasimsaheb, died, through L.Rs. 7-1 Malanbee w/o Pirsaheb, Age 82 years, Occupation Household, Resident of as abaove (Panshewadi) 8 Bapurao s/o Bhimrao More, Age 52 years, Occupation Agriculture, Resident of as above 9 Sambhaji s/o TukaramKamble, Age 52 years, Occupation Agriculture, Resident of as above 10 Nagoba s/o Kerba Bhalerao, Age 77 years, Occupation Agriculture, Resident of as above 11 Ganpati s/o Kerba Bhalerao, Age 72 years, Occupation Agriculture, Resident of as above 12 Dhondiba s/o Kerba Bhalerao, Age 68 years, Occupation Agriculture, Resident of as above 13 Eknath s/o Kerba Bhalerao, Age 62 years, Occupation Agriculture, Resident of as above 14 Mariba s/o Mahadu Baswante, Age 57 years, Occupation Agriculture, Resident of as above 15 Bhimrao s/o Jaiwantrao More, Age 82 years, Occupation Agriculture, Resident of as above 16 Ramrao s/o Jaiwantrao More, Age major, Sarpanch of Village Panchayat, Resident of as above Shri S.S. Kazi, Advocate for the appellants Shri S.K. Mathpati, Advocate, holding for Shri S.B. Talekar, Advocate for respondent Nos. 2, 5, 6, 8 to 13 & 15 Shri S.V. Chandole, Advocate, holding for Shri V.G. Sakolkar, Advocate for respondent No. 14 CORAM : A.V. NIRGUDE, J. DATED : 8th September, 2011 3 SA99/1993 ORAL JUDGMENT : 1. When this appeal was admitted, following grounds were said to be the substantial questions of law : (1) The learned Judge committed error of law in holding that good title was passed to either of the defendants when the learned Judge has held that the sale-deed of 20th Isfinder 1343 F was not proved due to non- production of original and proof thereof ? (2) The learned Judge committed an error of law in refusing to allow additional evidence under Order 41 Rule 27 of C.P.C. when the original copy was produced in appellant Court ? The facts leading to this litigation, in short, can be stated as under : 2. The appellants were plaintiffs. They filed this suit for redemption of mortgage. It is their case that their grand-mother mortgaged ancestral joint Hindu family property to respondent No. 1 and another person in 1927. It was a usufructory mortgage which allowed the mortgagees to use the land for 20 years and then return the same back to the mortgagor. There occurred a litigation between mortgagor and the mortgagees. The matter was compromised and the parties reiterated their agreement that the mortgagees would return the property after 20 years to the mortgagor. In 1934 or so, the property was shown to have been transferred in favour of one Gangabua. This Gangabua then sold the land to various persons. Part of this property went to one Bhimrao Jaiwanta More, who was found in excess land than the prescribed limit of Ceiling Act. So, part of the suit property was taken over by the Government and was re-distributed to landless people who are also respondents of this case. The appellants claimed that they have right to 4 SA99/1993 redeem the property and they alleged that the intervening changes that took place in the title were not lawful. 3. The respondents opposed the suit mainly on two grounds, first; they said that the suit is not within limitation, and secondly; they said that assuming the land was mortgaged in 1927, subsequently Dhondiba and Mahadu, sons of original mortgagor, sold away the entire land to Gangabua, and so, Dhondiba and now his legal representatives are not entitled to any decree. 4. From the above narration, it is clear that the case of the appellants / plaintiffs solely depended on mortgage-deed of 1927. A certified copy of this mortgage deed was brought on record by the appellants / plaintiffs saying that the original is lost. Having regard to this, mortgage-deed ought to have been exhibited and accepted on record as document by the learned Judge of the trial Court as well by the learned Judge of the appellate Court. But, both of them refused to treat the said document as proved document. This certainly was error on their part. The second document on which the respondents’ case depended was of 1934. It was the sale-deed which the appellants / plaintiffs had executed in favour of Gangabua. A certified copy of this document was also brought on record saying that the original was lost. Having regard to the facts and circumstances of the case, this secondary evidence ought to have been admitted on record, the document ought to have been admitted in evidence and it ought to have been exhibited. Both these documents thus were proved during the trial. 5. Unfortunately, as narrated above, the appellants / plaintiffs did not challenge the legality of the sale deed of 1934. During the evidence, for the first time, they tried to suggest to the witnesses that Dhondiba in 1934 was only 14 year old minor and could not have executed the document. I am afraid, this stand taken by the appellants was irrelevant as this was not 5 SA99/1993 pleaded by them. I think, the appellants / plaintiffs ought to have challenged the legality of the sale deed on the ground that Dhondiba, at the time of sale deed, was minor, and so, the sale deed was void ab-initio. But, despite opportunity to say so, the appellants / plaintiffs did not say it in their pleading. In view of this, the respondents / defendants could easily prove that Dhondiba had executed the sale deed in respect of the entire land, and so, he is now estopped from filing a suit for redemption. The right of mortgagor was transferred through the sale deed to the purchaser. From the above discussion, I have already covered the grounds which are referred to above which were giving rise to substantial questions of law. In fact, the question that arose after answering the substantial questions of law in favour of the appellants is, whether the original plaintiff Dhondiba was estopped from filing this suit, and in view of above discussion, the answer to this question is in the affirmative. The appeal should therefore fail. The second appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/99/93/8/9/11ok