The next objection raised by the learned counsel for the
appellant that there was no pleading for disputing identity of the
property which is under Exh.45 to the appellantplaintiff. I have,
therefore, with the assistance of learned counsel for the rival
parties perused the specific pleadings taken by Kamlabai in her
written statement. True it is that in the pleading, there are no
specific words about the dispute as to the identity of the property
but then careful reading of the pleadings shows that the pleading
is that the property sold by Motiram did not even belong to him
but it belonged to Mahadeo after partition was effected and that
Mahadeo bequeathed the property to his granddaughter. I think,
no party is expected to plead evidence in the written statement
and above pleading should be sufficient in the present case. I,
therefore, do not agree with Mr. Mishra, learned counsel for the
appellant that there was total absence of pleadings. The
appellantplaintiff, at any rate made a very serious mistake in
conducting the suit and the mistake is not curable. The appellantplaintiff
did not produce before the Court primary evidence
namely; Exh.45 the sale deed but she produced certified copy of
the registered sale deed before the Court. There is noting on
record to show as to the whereabouts of the original documents of
sale deed or rather primary evidence. There was no application
for leading secondary evidence for production of the certified copy
of the registered sale deed and/or for proving the same. I do not
think that the certified copy of the registered sale deed could be
taken as admissible evidence in the absence of any explanation for
loss of primary evidence or after obtaining permission to lead
secondary evidence. Nothing was done. I think, this is the defect
left by the plaintiff by not proving the sale deed. When the sale
deed itself was not proved, the title could not be held to be proved
by the appellantplaintiff and, therefore, the above question will
have to be answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.47/2000
Smt. Leelabai wd/o Tulshiram Ingole,
V
Sau. Kamlabai w/o Motiram Budh,
CORAM: A. B. CHAUDHARI, J.
DATED : 23.02.2016
Citation:2016(5) ALLMR17
1. Being aggrieved by judgment and decree dated
23.06.1994 passed by Extra Joint District Judge, Amravati in
Regular Civil Appeal No. 197/1991 by which the judgment and
decree dated 14.08.1991 passed by 2nd Jt. Civil Judge Junior
Division, Amravati in Regular Civil Suit No.585/1989 was set
aside and the suit of the appellantplaintiff was dismissed, the
present was filed in this Court by the unsuccessful plaintiff.
2. Mr. Mishra, learned counsel for the appellant, assailing
the impugned judgment and decree passed by the lower appellate
Court, contended that the lower appellate court set aside the
judgment and decree of the trial court on the ground that the
identity of the property was not properly proved by the appellantplaintiff
under the sale deed Exh.45 in favour of the appellant.
According to Mr. Mishra, this finding is per se perverse since there
was no such defence set up by the respondentdefendant in answer
to the suit and on the contrary, the defence was that the suit
property was bequeathed by Mahadeo, fatherinlaw of the
defendant by Will Exh.57 dated 30.11.1983 in favour of her
daughter. According to Mr. Mishra, the will Exh.57 was of no
avail to the respondent for the simple reason that the suit property
purchased by the appellant under the sale deed Exh.45 was the
share of Motiram, which he received in the registered partition
deed Exh.49 and, therefore, the question of Mahadeo bequeathing
the property to his granddaughter does not arise. He then
submitted that the transaction of sale deed in favour of the
appellantplaintiff did not have presumptive value under Section
60 of the Registration Act and, therefore, it was incumbent on the
respondentdefendant to affirmatively prove by appropriate and
specific pleadings that the suit property purchased by the
appellantplaintiff was not the same. But there was no pleading in
that behalf in the written statement. Mr. Mishra, therefore,
contended that the lower appellate Court unnecessarily recorded a
finding about identity of the property which as a matter of fact
and was never in dispute and, therefore, the judgment and decree
of the trial Court deserves to be restored.
3. Per contra, Mr. P. Y. Deshpande, learned counsel for
the respondentdefendant, submitted that the finding of fact
recorded by the lower appellate Court about identity of the
property was not shown to be perverse. According to
Mr.Deshpande, there is a pleading about misdescription or wrong
description of the suit property in the sale deed Exh.45. It was for
the appellantplaintiff to make verification about the exact details
of the property sought to be purchased by the plaintiff from
Motiram including the portion sought to be purchased along with
correct boundaries. There is a pleading to show that the property
claimed by the appellantplaintiff, in fact, belong to Mahadeo and
did not belong to Motiram, which would be sufficient to show that
suit property did not belong to Motiram, the vendor of the
appellantplaintiff. All other things, according to Mr. Deshpande,
are matters of evidence and reasonable inference could be drawn
from the documents also. He contended that the finding of fact
recorded by the lower appellate Court is perverse and illegal.
Consequently, he prayed for dismissal of the appeal.
4. At the time of admission of the appeal on 17.11.2003,
this Court had framed following substantial question of law.
“Whether the sale deed dated 15.04.1997 of survey
No.7/1 to the extent of 81 R have conferred title of
Lilabai and whether Motiram was competent to enter
into the transaction of sale on 15.04.1997 of the share
received by him in the partition in the year 1979?”
In modification of the said substantial question of law I
reframe the question as under:
“(i) Whether the appellantplaintiff prove that
under the sale deed Exh.45 dated 15.04.1987, he
purchased the suit property by further proving that the
same, in fact, belongs to his vendor Motiram and did not
belong to anybody else and, therefore, had a clear title
on the suit property since Motiram had sold the share
allotted to him in partition Exh.49?
......In the Negative.
(ii) What order? .....As per final order.”
5. Heard learned counsel for the rival parties for quite
some time. Perused the entire documentary and oral evidence so
also pleadings of the parties and reasons recorded by the Courts
below and in particular those recorded by the lower appellate
Court.
6. It is seen from the partition deed Exh.49, which is a
registered document that the Vendor of the appellantplaintiff
Motiram was allotted a piece of land towards NorthSouth on the
Eastern side of the consolidated property of Mahadeo, while
Haridas was allotted the middle portion of the property in his
share. The lower appellate Court has recorded a categorical
finding in his judgment in paragraph 9 in this context. I quote
paragraph 9 of the judgment which reads as under:
“9. As per partition deed Exh.49, Motiram got
extreme right portion i.e. astern portion of land survey
no.7/1 to the extent of 5 acres. According to plaintiff he
purchased part of his share through registered saledeed
dated 15.4.87. The plaintiff has not produced the
original saledeed on record but he has produced the
certified true copy of the saledeed at Exh45. Though
this saledeed should not have been admitted in evidence
the Trial Court exhibited the document as secondary
evidence. In fact, it should have not been done by the
trial court. Still as no objection has been raised by the
defendant. I venture to look into this document for
ascertaining the boundaries for the part of the land sold
to Motiram. The boundaries shown in the saledeed are
as under: To the East: Remaining land of Motiram and
Leelabai Ingole i.e. plaintiff, to the West: Land of
Pandurang Babhunlkar, to the North: land of Ambadas
Patil. Now, when the plaintiff has admitted the
partition deed Exh49, partition deed shown to Motiram
got eastern portion whereas P.W.1 Bhimrao had
admitted that Mahadeo had got extreme portion i.e.
western portion of the land survey no.7/1 whereas the
middle portion has fallen to the share of Haridas which
is purchased by plaintiff as per her own admission vide
deposition Exh43. Therefore, if at all Motiram would
have sold his share to the extent of 81 R of land to the
plaintiff to the West he should have shown either name
of Haridas of the purchaser/vendee from Haridas
namely P.W.1 Bhimrao or at the most Leelabai, the
plaintiff, by no stretch of imagination the name of
Pandurang Bhabhaulkar could have appeared to the
west in the boundaries shown in the saledeed Exh.45.
Therefore, if the partition deed Exh49 if conjointly read
with saledeed Exh.45, it clearly shows Motiram did not
sell his share to the plaintiff but sold some on else's
share. At this juncture, the contention of defendant has
to be taken into consideration whether Motiram had
sold share which had fallen to the share of Mahadeo
during the partition in the year 1979 and which he
subsequently bequeathed as per Will Exh57 on
28.6.1983. the defendant has specifically contended
that the suit land has been bequeathed to her three
daughters by deceased Mahadeo by executing willdeed
in the year 1983 which is at Exh.57.”
7. I have carefully compared the said finding of fact with
the sale deed Exh.45 and partition deed Exh.49 to find out
whether the lower appellate Court made any error and I find that
the lower appellate Court has made no error in comparing the
boundaries and finding out as to which portion was actually sold
on Exh.45 to the plaintiff. I, therefore, concur with the finding of
fact recorded by the lower appellate Court in paragraph 9.
8. The next objection raised by the learned counsel for the
appellant that there was no pleading for disputing identity of the
property which is under Exh.45 to the appellantplaintiff. I have,
therefore, with the assistance of learned counsel for the rival
parties perused the specific pleadings taken by Kamlabai in her
written statement. True it is that in the pleading, there are no
specific words about the dispute as to the identity of the property
but then careful reading of the pleadings shows that the pleading
is that the property sold by Motiram did not even belong to him
but it belonged to Mahadeo after partition was effected and that
Mahadeo bequeathed the property to his granddaughter. I think,
no party is expected to plead evidence in the written statement
and above pleading should be sufficient in the present case. I,
therefore, do not agree with Mr. Mishra, learned counsel for the
appellant that there was total absence of pleadings. The
appellantplaintiff, at any rate made a very serious mistake in
conducting the suit and the mistake is not curable. The appellantplaintiff
did not produce before the Court primary evidence
namely; Exh.45 the sale deed but she produced certified copy of
the registered sale deed before the Court. There is noting on
record to show as to the whereabouts of the original documents of
sale deed or rather primary evidence. There was no application
for leading secondary evidence for production of the certified copy
of the registered sale deed and/or for proving the same. I do not
think that the certified copy of the registered sale deed could be
taken as admissible evidence in the absence of any explanation for
loss of primary evidence or after obtaining permission to lead
secondary evidence. Nothing was done. I think, this is the defect
left by the plaintiff by not proving the sale deed. When the sale
deed itself was not proved, the title could not be held to be proved
by the appellantplaintiff and, therefore, the above question will
have to be answered in the negative.
9. To sum up, the following order will have to be passed.
ORDER
(i) Second Appeal No.47/2000 is dismissed.
(ii) No order as to costs.
Print Page
appellant that there was no pleading for disputing identity of the
property which is under Exh.45 to the appellantplaintiff. I have,
therefore, with the assistance of learned counsel for the rival
parties perused the specific pleadings taken by Kamlabai in her
written statement. True it is that in the pleading, there are no
specific words about the dispute as to the identity of the property
but then careful reading of the pleadings shows that the pleading
is that the property sold by Motiram did not even belong to him
but it belonged to Mahadeo after partition was effected and that
Mahadeo bequeathed the property to his granddaughter. I think,
no party is expected to plead evidence in the written statement
and above pleading should be sufficient in the present case. I,
therefore, do not agree with Mr. Mishra, learned counsel for the
appellant that there was total absence of pleadings. The
appellantplaintiff, at any rate made a very serious mistake in
conducting the suit and the mistake is not curable. The appellantplaintiff
did not produce before the Court primary evidence
namely; Exh.45 the sale deed but she produced certified copy of
the registered sale deed before the Court. There is noting on
record to show as to the whereabouts of the original documents of
sale deed or rather primary evidence. There was no application
for leading secondary evidence for production of the certified copy
of the registered sale deed and/or for proving the same. I do not
think that the certified copy of the registered sale deed could be
taken as admissible evidence in the absence of any explanation for
loss of primary evidence or after obtaining permission to lead
secondary evidence. Nothing was done. I think, this is the defect
left by the plaintiff by not proving the sale deed. When the sale
deed itself was not proved, the title could not be held to be proved
by the appellantplaintiff and, therefore, the above question will
have to be answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.47/2000
Smt. Leelabai wd/o Tulshiram Ingole,
V
Sau. Kamlabai w/o Motiram Budh,
CORAM: A. B. CHAUDHARI, J.
DATED : 23.02.2016
Citation:2016(5) ALLMR17
1. Being aggrieved by judgment and decree dated
23.06.1994 passed by Extra Joint District Judge, Amravati in
Regular Civil Appeal No. 197/1991 by which the judgment and
decree dated 14.08.1991 passed by 2nd Jt. Civil Judge Junior
Division, Amravati in Regular Civil Suit No.585/1989 was set
aside and the suit of the appellantplaintiff was dismissed, the
present was filed in this Court by the unsuccessful plaintiff.
2. Mr. Mishra, learned counsel for the appellant, assailing
the impugned judgment and decree passed by the lower appellate
Court, contended that the lower appellate court set aside the
judgment and decree of the trial court on the ground that the
identity of the property was not properly proved by the appellantplaintiff
under the sale deed Exh.45 in favour of the appellant.
According to Mr. Mishra, this finding is per se perverse since there
was no such defence set up by the respondentdefendant in answer
to the suit and on the contrary, the defence was that the suit
property was bequeathed by Mahadeo, fatherinlaw of the
defendant by Will Exh.57 dated 30.11.1983 in favour of her
daughter. According to Mr. Mishra, the will Exh.57 was of no
avail to the respondent for the simple reason that the suit property
purchased by the appellant under the sale deed Exh.45 was the
share of Motiram, which he received in the registered partition
deed Exh.49 and, therefore, the question of Mahadeo bequeathing
the property to his granddaughter does not arise. He then
submitted that the transaction of sale deed in favour of the
appellantplaintiff did not have presumptive value under Section
60 of the Registration Act and, therefore, it was incumbent on the
respondentdefendant to affirmatively prove by appropriate and
specific pleadings that the suit property purchased by the
appellantplaintiff was not the same. But there was no pleading in
that behalf in the written statement. Mr. Mishra, therefore,
contended that the lower appellate Court unnecessarily recorded a
finding about identity of the property which as a matter of fact
and was never in dispute and, therefore, the judgment and decree
of the trial Court deserves to be restored.
3. Per contra, Mr. P. Y. Deshpande, learned counsel for
the respondentdefendant, submitted that the finding of fact
recorded by the lower appellate Court about identity of the
property was not shown to be perverse. According to
Mr.Deshpande, there is a pleading about misdescription or wrong
description of the suit property in the sale deed Exh.45. It was for
the appellantplaintiff to make verification about the exact details
of the property sought to be purchased by the plaintiff from
Motiram including the portion sought to be purchased along with
correct boundaries. There is a pleading to show that the property
claimed by the appellantplaintiff, in fact, belong to Mahadeo and
did not belong to Motiram, which would be sufficient to show that
suit property did not belong to Motiram, the vendor of the
appellantplaintiff. All other things, according to Mr. Deshpande,
are matters of evidence and reasonable inference could be drawn
from the documents also. He contended that the finding of fact
recorded by the lower appellate Court is perverse and illegal.
Consequently, he prayed for dismissal of the appeal.
4. At the time of admission of the appeal on 17.11.2003,
this Court had framed following substantial question of law.
“Whether the sale deed dated 15.04.1997 of survey
No.7/1 to the extent of 81 R have conferred title of
Lilabai and whether Motiram was competent to enter
into the transaction of sale on 15.04.1997 of the share
received by him in the partition in the year 1979?”
In modification of the said substantial question of law I
reframe the question as under:
“(i) Whether the appellantplaintiff prove that
under the sale deed Exh.45 dated 15.04.1987, he
purchased the suit property by further proving that the
same, in fact, belongs to his vendor Motiram and did not
belong to anybody else and, therefore, had a clear title
on the suit property since Motiram had sold the share
allotted to him in partition Exh.49?
......In the Negative.
(ii) What order? .....As per final order.”
5. Heard learned counsel for the rival parties for quite
some time. Perused the entire documentary and oral evidence so
also pleadings of the parties and reasons recorded by the Courts
below and in particular those recorded by the lower appellate
Court.
6. It is seen from the partition deed Exh.49, which is a
registered document that the Vendor of the appellantplaintiff
Motiram was allotted a piece of land towards NorthSouth on the
Eastern side of the consolidated property of Mahadeo, while
Haridas was allotted the middle portion of the property in his
share. The lower appellate Court has recorded a categorical
finding in his judgment in paragraph 9 in this context. I quote
paragraph 9 of the judgment which reads as under:
“9. As per partition deed Exh.49, Motiram got
extreme right portion i.e. astern portion of land survey
no.7/1 to the extent of 5 acres. According to plaintiff he
purchased part of his share through registered saledeed
dated 15.4.87. The plaintiff has not produced the
original saledeed on record but he has produced the
certified true copy of the saledeed at Exh45. Though
this saledeed should not have been admitted in evidence
the Trial Court exhibited the document as secondary
evidence. In fact, it should have not been done by the
trial court. Still as no objection has been raised by the
defendant. I venture to look into this document for
ascertaining the boundaries for the part of the land sold
to Motiram. The boundaries shown in the saledeed are
as under: To the East: Remaining land of Motiram and
Leelabai Ingole i.e. plaintiff, to the West: Land of
Pandurang Babhunlkar, to the North: land of Ambadas
Patil. Now, when the plaintiff has admitted the
partition deed Exh49, partition deed shown to Motiram
got eastern portion whereas P.W.1 Bhimrao had
admitted that Mahadeo had got extreme portion i.e.
western portion of the land survey no.7/1 whereas the
middle portion has fallen to the share of Haridas which
is purchased by plaintiff as per her own admission vide
deposition Exh43. Therefore, if at all Motiram would
have sold his share to the extent of 81 R of land to the
plaintiff to the West he should have shown either name
of Haridas of the purchaser/vendee from Haridas
namely P.W.1 Bhimrao or at the most Leelabai, the
plaintiff, by no stretch of imagination the name of
Pandurang Bhabhaulkar could have appeared to the
west in the boundaries shown in the saledeed Exh.45.
Therefore, if the partition deed Exh49 if conjointly read
with saledeed Exh.45, it clearly shows Motiram did not
sell his share to the plaintiff but sold some on else's
share. At this juncture, the contention of defendant has
to be taken into consideration whether Motiram had
sold share which had fallen to the share of Mahadeo
during the partition in the year 1979 and which he
subsequently bequeathed as per Will Exh57 on
28.6.1983. the defendant has specifically contended
that the suit land has been bequeathed to her three
daughters by deceased Mahadeo by executing willdeed
in the year 1983 which is at Exh.57.”
7. I have carefully compared the said finding of fact with
the sale deed Exh.45 and partition deed Exh.49 to find out
whether the lower appellate Court made any error and I find that
the lower appellate Court has made no error in comparing the
boundaries and finding out as to which portion was actually sold
on Exh.45 to the plaintiff. I, therefore, concur with the finding of
fact recorded by the lower appellate Court in paragraph 9.
8. The next objection raised by the learned counsel for the
appellant that there was no pleading for disputing identity of the
property which is under Exh.45 to the appellantplaintiff. I have,
therefore, with the assistance of learned counsel for the rival
parties perused the specific pleadings taken by Kamlabai in her
written statement. True it is that in the pleading, there are no
specific words about the dispute as to the identity of the property
but then careful reading of the pleadings shows that the pleading
is that the property sold by Motiram did not even belong to him
but it belonged to Mahadeo after partition was effected and that
Mahadeo bequeathed the property to his granddaughter. I think,
no party is expected to plead evidence in the written statement
and above pleading should be sufficient in the present case. I,
therefore, do not agree with Mr. Mishra, learned counsel for the
appellant that there was total absence of pleadings. The
appellantplaintiff, at any rate made a very serious mistake in
conducting the suit and the mistake is not curable. The appellantplaintiff
did not produce before the Court primary evidence
namely; Exh.45 the sale deed but she produced certified copy of
the registered sale deed before the Court. There is noting on
record to show as to the whereabouts of the original documents of
sale deed or rather primary evidence. There was no application
for leading secondary evidence for production of the certified copy
of the registered sale deed and/or for proving the same. I do not
think that the certified copy of the registered sale deed could be
taken as admissible evidence in the absence of any explanation for
loss of primary evidence or after obtaining permission to lead
secondary evidence. Nothing was done. I think, this is the defect
left by the plaintiff by not proving the sale deed. When the sale
deed itself was not proved, the title could not be held to be proved
by the appellantplaintiff and, therefore, the above question will
have to be answered in the negative.
9. To sum up, the following order will have to be passed.
ORDER
(i) Second Appeal No.47/2000 is dismissed.
(ii) No order as to costs.
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