Bombay High Court
Madanlal Pannalal Bhangadiya vs Pralhad Narayan Atole on 11 January, 2011
Author: R.M.Savant
Bench: R.M.Savant
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL Nos. 371 & 396 OF 1994.
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SECOND APPEAL No. 371 OF 1994.
Madanlal Pannalal Bhangadiya ... APPELLANT.
VERSUS
Pralhad Narayan Atole ... RESPONDENT.
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None for for Appellant.
Shri S.A. Mohta, Advocate for Respondent.
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W I T H
SECOND APPEAL No. 396 OF 1994.
Pralhad Narayan Atole ... APPELLANT.
VERSUS
Chandulal Pannalal Bhangadiya ... RESPONDENT.
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Shri S.A. Mohta, Advocate for Appellant
None for Respondent.
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CORAM : R.M.SAVANT, J.
DATED : 11.01.2011.
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2
ORAL JUDGMENT.
The above Second Appeals arise out of the judgment and decree passed in Regular Civil Appeal No.43/1992 dated 26.08.1994 (i.e. Second Appeal No. 371/1994) and judgment and decree passed in Regular Civil Appeal No. 410/1989 dated 20.08.1994 (i.e. Second Appeal No. 396/1994). Since the substantial question of law involved in the above Second Appeals are common viz. Construction of document marked at Exh.76 in Second Appeal No. 371/1994, both the appeals were tagged together and are therefore, being heard and disposed of by this common judgment.
2. The facts in nutshell can be stated thus -
Respondent in Second Appeal No. 396/1994 is the plaintiff in Regular Civil Suit No. 29/1981. The appellant in Second Appeal No. 396/1994 is the plaintiff in Regular Civil Suit No.219/1982. Both the suits involve a common property which is a Gadhi i.e. "description given to an ancestral property coming down from ages, belonging to a particular family and the land surrounding the said gadhi." The plaintiff Chandulal in Regular Civil Suit No.29/1981 prayed for declaration of his ownership and confirmation of possession. The suit property is situated at village Bibi, Taluq Mehkar, District Buldhana.
::: Downloaded on - 09/06/2013 16:45:23 ::: 3The dispute pertains to the pit situated to the West of his house. The said pit according to the plaintiff is being used by him for waste water so as to dump manure in the ditch. The house property and the disputed property were described by letters A, B, M, K on the map which was filed along with the suit, as the ancestral property. It is the case of said Chandulal, that the defendant who owns a fortress to the North of the disputed site i.e. gadhi, obstructed his said user to the pit in the month of January, 1989 and therefore, he filed the said suit for declaration of ownership and perpetual and permanent injunction.
The plaintiff in Civil Suit No. 219/1982 has filed the said suit for declaration of ownership and possession of the encroached portion. The plaintiff Pralhad in the said suit averred that he is the owner of the "gadhi" at village Bibi, Taluka Lonar and that the said gadhi is, his ancestral property. He further averred that he is in possession of that property from his forefathers. It is further averred that there is a Well surrounding the said gadhi for its protection, and that there is open land upto to 10 cubits surrounding the said Wall.
The plaintiff Pralhad also filed a map along with the plaint. It is the case of the plaintiff that the defendant Madanlal, who is brother of Chandulal who is the plaintiff' in Regular Civil Suit No. 29/1982, has constructed his house by encroaching upon the said premises two years prior to the filing of the suit i.e. some time in the year 1980.
::: Downloaded on - 09/06/2013 16:45:23 ::: 4That the defendant was prosecuted under Section 447 of the Indian Penal Code. The plaintiff Pralhad demanded possession of the suit property from the defendant in the year 1982, but the defendant denied the same, hence the plaintiff was constrained to file the said suit. The defendant Madanlal in his written statement denied that the plaintiff was having open land upto 10 cubits surrounding the gadhi. It is his case that the property in his possession is also an ancestral property and that the constructed portion is in existence since the time of his forefathers. The defendant further contended that in the year 1980 he repaired the property as it required repairs and he had done so, after obtaining permission of the local authority.
The defendant also raised a plea as regards the non-joinder of necessary parties. It was further his case that the property is in his possession for more than 70 years, therefore, he has became owner by adverse possession. He therefore, prayed for dismissal of the suit.
3. In so far as the Civil Suit No.219/1982 i.e. the suit filed by Pralhad is concerned, the same was dismissed by the trial Court by its judgment and order dated 30.01.1992, inter-alia holding that the existence of gadhi at the relevant time could not be made out and, therefore, the plaintiff could not claim 10 cubits land surrounding the said gadhi. The trial Court disbelieved the evidence adduced on ::: Downloaded on - 09/06/2013 16:45:23 ::: 5 behalf of the plaintiff through his witnesses, on the ground that both the witnesses had admitted that they had not seen the title deed of the property of plaintiff before purchase. The Trial Court was of the view that the testimony of the said witnesses is not at all useful for the plaintiff to prove his title to the property.
4. In so far as the encroachment is concerned, the Trial Court on the basis of the evidence on record, held that the plaintiff had failed to prove that the defendant had encroached upon his land.
The Trial Court also held that the suit was bad for non joinder of necessary parties, as the plaintiff' has not joined his mother, who was then alive, as a party to the suit.
5. Being aggrieved by the said judgment and order dated 30.01.1992, the plaintiff filed Regular Civil Appeal No. 43/1992.
The said Regular Civil Appeal was allowed by the First Appellate Court by placing reliance on the document Exh.76 which was in Modi script. The First Appellate Court observed that after going through the translation of the said document, which is at Exh.84, though a doubt can be raised about the existence of gadhi itself at the time of partition, the First Appellate Court was of the view that the recitals in the document positively go to show that the gadhi was very much in ::: Downloaded on - 09/06/2013 16:45:23 ::: 6 existence. The said conclusion was arrived at by the Appellate Court on the basis that there were two Wells in the property and it was stated that one Well was inside the gadhi and the other was outside.
The trial Court also took into consideration the fact that in some other proceeding, plaintiff''s right over the Well which is outside the gadhi, has been endorsed by a Court. This fact according to the First Appellate Court also fortified the case of the plaintiff that the gadhi was in existence and that even some portion outside the said gadhi was owned by him. The First Appellate Court considering the existence of other structures like buruj or bastion which was described in the translation Exh.84 of the document in Modi script, reached to a conclusion that the gadhi was in existence at the time of so called partition. The First Appellate Court therefore, on the basis of the said document decreed the suit and resultantly the plaintiff Pralhad was declared owner of the suit property and the defendant Madanlal was directed to deliver the vacant possession of the encroached portion as per the Commissioner's map to the plaintiff.
6. In so far as the Suit No. 29/1981 filed by Chandulal is concerned, the trial Court was of the view that since the defendant had pleaded that he has become owner by adverse possession, implicit in the said defence was the existence of the ownership of plaintiff over ::: Downloaded on - 09/06/2013 16:45:23 ::: 7 the disputed property. The trial Court on the basis, that the plaintiff has not produced any document to show that the residential house is his ancestral property, was of the view that the plaintiff has not brought any material on record to prove his ownership to the disputed property. However, in so far as the document Exh.76 and its translation Exh.84 is concerned, the said document was though produced by the defendant, was not exhibited and was marked as Article "A", as according to the Trial Court Pralhad who was the defendant in the said suit had not proved the said document of partition, as per law. The trial Court also observed that the evidence adduced by the defendant also falls short of his case, however since the initial burden is that of the plaintiff namely Chandulal, which he could not discharge, the trial Court dismissed the said suit filed by Chandulal.
Being aggrieved by the same, the plaintiff Chandulal filed Regular Civil Appeal No.10/1989 which came to be allowed by the First Appellate Court by its judgment and decree dated 20.08.1994.
The First Appellate Court in the said Regular Civil Appeal No.10/1989, held that since it was the defence of the defendant Pralhad in the said suit that he became owner by adverse possession, implicit in the said defence is the existence of ownership of the plaintiff over the suit property. The First Appellate Court was of the ::: Downloaded on - 09/06/2013 16:45:23 ::: 8 view that if, the defendant Pralhad was serious about his case of adverse possession, he could have asked for framing of an issue to that effect and could have also led evidence to show his adverse possession. Since the said document which is Exh.76 in Civil Suit No.219/1982 was not exhibited, as according to the Trial Court the said document was not proved in accordance with law, the First Appellate Court held that both the plaintiff and the defendant have not produced cogent documentary evidence to show their title over the disputed property. But considering the two circumstances which were in favour of the plaintiff, namely the defence of adverse possession taken by the defendant and the possession of the plaintiff over the suit properties, the First Appellate Court decreed the suit and granted permanent injunction restraining the defendant Pralhad from interfering with the plaintiff's enjoyment over the disputed pit marked by letters A,B, M, K in the Court Commissioner map.
7. As indicated above, both the judgments and decrees passed by the First Appellate Court are the subject matter of above appeals, as mentioned above, the question of law which is common to both the appeals, is as regards the construction of the document at Exh.76. It has to be borne in mind that so far as Regular Civil Suit No.29/1981 is concerned, the said document Exh.76 has not been proved in ::: Downloaded on - 09/06/2013 16:45:23 ::: 9 accordance with law. As the first appellate stage also no endeavor was made to prove the said document by making any application, therefore, in so far as the suit i.e. Regular Civil Suit No.29/1981 is concerned, the same has been decided dehors the said document, being proved. In my view, therefore, the construction of the said document though produced in the said suit, but not proved, would not entail an adjudication of the question of law framed in the above Second Appeal No.396/1994.
8. In so far as the Second Appeal No. 371/1994 is concerned, though the Trial Court has in terms recorded a finding that the existence of the gadhi at the time of partition is not proved, and therefore, has held that the plaintiff could not be said to own 10 cubits of land around the said gadhi. In the appeal, the First Appellate Court has gone threadbare into the recitals of the said document Exh.76, and its translation Exh.84, and recorded a finding that though the said document Exh.76 raises a doubt about the existence of the gadhi itself at the moment of partition, the First Appellate Court was of the view that the other recitals in the document positively go to show that the gadhi was very much in existence, and that since in respect of one of the Wells which was outside the gadhi, the plaintiff''s right over the same has been ::: Downloaded on - 09/06/2013 16:45:23 ::: 10 endorsed by a Court in another proceeding. The existence of the gadhi could not be disputed. The First Appellate Court also took into consideration the recital in the document Exh.76, concerning the position of bastion or buruj of the said gadhi, as also the access mentioned to the said gadhi which according to the First Appellate Court, as reveals in the document, was in existence at the time of the so called partition in Exh.84. In my view having perused the said document and its translation Exh.84, the interpretation of the said document by the First Appellate Court on the basis of the recitals therein, cannot be faulted with. The said recitals in unmistakable terms point out the existence of the said gadhi and the Appellate Court therefore, has rightly held that the plaintiff had proved his ownership to the property in question. The substantial question of law would therefore, stand answered accordingly in the above Second Appeal No. 371 of 1994..
9. In the light of the aforesaid discussion, I do not find any merit in both the Appeals, which are accordingly dismissed with no order as to costs.
JUDGE Rgd.
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