Bombay High Court
Kishan Arjuna Khansole vs Ababuwa Baba Khansole on 10 February, 2000
Equivalent citations: 2000(4)BOMCR433, 2000(4)MHLJ854
Author: A.S. Bagga
Bench: A.S. Bagga
ORDER A.S. Bagga, J.
1. This second appeal is directed against the judgment dated 19th August, 1983 of the Extra Assistant Judge, Nanded in Regular Civil Appeal No. 116 of 1981 whereby the judgment and decree dated 27th February, 1981 of the Joint Civil Judge, Junior Division, Nanded came to be set aside.
2. The dispute is between the uncle and the nephew and it pertains to one acre of land originally from Survey No. 89 situated at Village Kamlaj, Taluka and District, Nanded. Survey No. 89 admeasures 7 acres and 12 gunthas, which was partitioned. Half of this land admeasuring 3.26 acres came to the share of the respondent and was given survey and was numbered as Survey No. 89/A and the other equal half land admeasuring 3.26 acres came to be allotted in the share of the appellant and was numbered as Survey No. 89/B.
3. The appellant - Kishan (uncle) sold 2.26 acres land out of his holdings to his nephew respondent Ababuwa by registered sale deed in the year, 1970. After having sold the land to his nephew, Kishan left the village and migrated to a place known as Village Sategaon - Sangvi in Taluka Biloli, District Nanded. Thus the respondent became owner of the land admeasuring 3.26 acres out of Survey No. 89 on account of partition which had admittedly taken place and 2.26 acres land on account of sale deed executed by the appellant -Kishan in his favour in the year, 1970. Out of total area of 7.12 acres in Survey No. 89, the respondent thus, became owner of 6.12 acres. The ownership of one acre of land remained with the appellant - Kishan who had left the village and settled in another village as stated earlier.
4. It appears that the respondent cultivated the entire portion of 7.12 acres of Survey No. 89. His name however, came to be recorded in the revenue records not only in cultivating column but also in ownership column of 7/12 extract.
5. It appears that the appellant - Kishan returned to the village and found that his nephew respondent was shown in the revenue record as owner of not only 6.26 acres but also of one acre of land which is the subject matter of the suit. He, therefore, moved the revenue authorities for correction of the record and succeeded in those proceedings. The judgment of Assistant Collector and the Additional Collector in this respect, are on record at Exhs. 35 and 36. The appellant - original plaintiff filed a suit for recovery of possession of the suit land from the respondent on the basis of title. The appellant, in the suit, stated that there was consolidation scheme undertaken in village Kamlaj and the respondent managed to get the entire property of Survey No. 89 recorded in his name and got a certificate issued from the Consolidation Officer.
6. The respondent - original defendant in his written statement admitted that only 2.26 acres of land was transferred by sale deed in his favour and that, one acre land from this survey number was not the subject matter of the sale deed executed by his uncle in his favour in the year, 1970. He however, stated that he cultivated the entire land in Survey No. 89 admeasuring 7.12 acres. The consolidation scheme was undertaken and at that time, the appellant - Kishan had agreed in writing for transfer of title of the suit land for a consideration of Rs. 2500/-, out of which an amount of Rs. 2000/- was paid to him at the time of agreement. This document was placed on record along with the written statement by the respondent - Ababuwa. The learned trial Judge however, held the certificate issued under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 in favour of the respondent not sufficient for transfer of title and the learned Judge also did not accept the document (Exh. 32) alleged agreement between the parties and proceeded to hold that the appellant continued to be the owner of the suit land and proceeded to decree the suit. Against that judgment, first appeal came to be filed by the respondent - original defendant. In appeal, the learned Appellate Judge held that respondent was in cultivating possession of the land, and in the certificate issued by the Consolidation Officer his name was shown as owner of the entire survey number including the suit land and the learned Appellate Judge also held that there was agreement in writing for transfer of the suit land and, therefore, the respondent was entitled to protection in equity of party performance under section 53-A of the Transfer of Property Act and set aside the judgment and decree. It is against this judgment and decree the present appeal has been filed. 1 have heard Shri Deshpande, learned Counsel for the appellant and Shri Gorde Patil, learned Counsel for the respondent. There is a certificate issued by the Consolidation Officer at Exh. 30 in which the entire Survey No. 89 has been shown in the name of respondent. The respondent also placed on record agreement which is at Exh. 32. Shri Deshpande, learned Counsel for the appellant has pointed out that in this document there is no reference anywhere about the possession of the property. He also pointed out that the language of this document is not in usual terms in which agreements to sell are generally written. It would be seen that this document has been executed by the appellant in favour of the respondent. The appellant has acknowledged receipt of Rs. 2000/- and has gone to say that on account of the on going consolidation scheme in the village transfers of lands were not allowed and that, on completion of the consolidation proceedings and recording of one acre of land in the name of the respondents, a sum of Rs. 500/ would be taken by him. In other words, the appellant has agreed for consideration of Rs. 2500/- to allow the name of the respondent to be recorded in the certificate. He received Rs. 2000/- at the time of agreement and balance Rs. 500/- was to be paid after such certificate was issued. Thus, it would be seen that the language used in this document is in accordance with the circumstances prevailing at the relevant time i.e. in the year, 1972 - the year of agreement. It will have to be held, therefore, that the document does not suffer from defects or ambiguity.
7. The next contention of the learned Counsel is about admission of this document in evidence by the trial Judge. This document was accepted in evidence and marked as Exh. 32. Shri Deshpande has pointed out that none of the witnesses from this document came to be examined and that the appellant Kishan had denied having executed this document. Under these circumstances, the contention of the learned Counsel is that it was wrongly admitted in the evidence and relied upon by the first Appellate Court.
8. Section 67 of the Evidence Act which deals with the proof of signature and handwriting of document does not lay down any particular kind of proof for proving that a particular writing or signature is in the hand of a particular person. It has been held by several authorities that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence. In addition to usual modes, hand writing may also be proved by circumstantial evidence. Finally, there are authorities for the proposition of law that any recognised mode of proof which is satisfactory to the Judge is sufficient. With regard to the document (Exh. 32) in question, it would be seen that this document was referred to by the respondent in proceedings initiated by the appellant as back as in the year, 1976 i.e. prior to the filing of the suit by the present appellant. The respondent has referred to this document in his written statement and placed the document on record at the earliest stage. This document came to be impounded by the trial Court on account of insufficiency of stamp. It was on payment of penalty that the document was exhibited. In first appeal which came to be filed by the respondent, reliance was placed on this document. The appellant, except denying that the executed this document, did not move the Court further. If, this document was fabricated and was not really executed by the appellant, he could have well taken necessary steps like getting it examined by finger prints expert. The respondent has entered into witness box and stated about execution of this document. There is other oral evidence in the form of oral evidence of Baba (D.W. 2). In these circumstances, the learned first Appellate Judge was perfectly right to rely on this document. On perusal of this document, it would be seen that the appellant had agreed in consideration of Rs. 2500/- for allowing the name of the respondent to be recorded in the certificate to be issued by the Consolidation Officer in the consolidation scheme. The name of the respondent was recorded in the certificate issued subsequently. That certificate is also on record at Exh. 30. This certificate has been issued under section 24 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. This certificate became final inasmuch as, the appellant never filed any proceedings questioning this document before a superior revenue authority or Appellate Authority under the Act. It is for these reasons that the learned Judge has held the respondent to be owner of the suit land and also observed that the possession of the respondent on the suit land was protected under the provisions of section 53-A of the Transfer of Property Act.
9. The respondent admittedly, was in possession of the suit land. There is agreement in writing whereby the appellant agreed for inclusion of the suit land in the certificate to be issued under the consolidation scheme which was undertaken for the village. The possession of the respondent, therefore, in view of this agreement was rightly held to be protected.
10. For the reasons discussed herein before, no exception can be found with the reasonings and the judgment and order as passed by the first Appellate Judge. It has got to be confirmed. The appeal, in result, is dismissed with no order as to costs.
11. Appeal dismissed.