Case: NARESH Vs. HEMANT

3. The predecessors of the plaintiffs and the defendants were brothers namely, Ramchandrarao Ingole and Trimbakrao Ingole. They partitioned among themselves in 1952. The suit property consists of 7011 sq. ft. of lands, with a house constructed in 1974- 75 thereupon leaving substantial vacant lands, was purchased jointly in the name of the two brothers by sale deed dated 29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995. The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property4. The suit was dismissed by the Trial Court. The first appeal preferred by the plaintiffs was also dismissed. Both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession. The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW-1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property.

Reasoning:
7. We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record. The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement8. The evidence was in the nature of oath versus oath by the legal heirs of the two brothers. No documentary evidence except for the sale deed was led. The Trial Court correctly noticed the gap of 36 days between the preparation of the sale deed on 29.03.1957 and its subsequent registration on 03.05.1957 as a circumstance to accept the contention of the defendants that Ramchandrarao Ingole retracted from any contribution and his status as a vendee or beneficiary of the purchase. Since registration on 03.05.1957 till the institution of the suit by the legal heirs of Ramchandrarao Ingole, 38 years later, he did not prefer any claim since 03.05.1957 till his brothers death in 1980, including for 15 long years till his own death on 23.03.1995. Thereafter, PW-1 in his evidence admitted that the construction of the house had been made by Trimbakrao Ingole alone. There is no evidence that this construction was made from joint family funds. It is an undisputed fact that the plaintiffs at no point of time ever since purchase resided in the house or upon the suit lands or enjoyed the same in any manner let alone incurred any expenditure on the same9. The claim for a presumption under Section 45 of the Act in favour of the plaintiffs was raised for the first time before the First Appellate Court but was negated in light of the factual findings. Importantly, it was held that mere failure of the defendants to adduce satisfactory evidence that Trimbakrao Ingole had paid the entire consideration did not absolve the plaintiffs of their duty to establish their own claim in accordance with law by satisfactory evidence to substantiate the presumption sought to be relied upon. In other words, the appellate court correctly held that the weakness of the defence could not become the strength of the plaintiff, especially when the defendants were disputing their claims11. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.