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2015 DIGILAW 127 (BOM)

Gujabrao v. Punjabrao (Dead) through its LRs

2015-01-15

R.K.DESHPANDE

body2015
Judgment 1. The appellant is the original plaintiff and the respondent No.1 is the original defendant. They were the real brothers. The respondent no.2 is the original defendant NO.2 and the son of the respondent no.1. The respondent No.1 died and his legal representatives are brought on record as respondent Nos.1(i) to (vii). The parties shall hereinafter be referred according to their original status. 2. The plaintiff filed Special Civil Suit No.90/1993 simplicitor for grant of permanent injunction claiming that he is the owner of an agricultural land admeasuring 7 H. 85 R. out of Gat No.51 situated at Vani and the respondent is trying to disturb his possession. The defendant Nos.1 and 2 filed common written statement and the counter claim for declaration that they are the owners of 18.21 acres of land out of Gat No.51, which is in possession of the plaintiff and hence, decree for possession has been claimed along with mesne profits. The Trial Court by its judgment and order dated 07.08.1993 dismissed the suit and allowed the counter claim. The plaintiff is directed to deliver the possession of area of 18 acres from Gat No.51 of village Vani (Kasba), Tq. Babhulgaon, District Yavatmal. The Trial Court also directed the plaintiff to pay damages of Rs.30,000/- for wrongful use of the area and encroachment. An inquiry into the mesne profits has also been ordered under Order 20 Rule 12(3) of the Code of Civil Procedure. Regular Civil Appeal No.147/1993 preferred by the plaintiff has been dismissed by the Appellate Court by its judgment and order dated 04.02.1999. Hence, this Second Appeal by the original plaintiff. 3. This Court admitted the Second Appeal on 07.01.2008 and the order is reproduced below: “Heard. Admit on the following substantial questions of law. 1. Whether the courts below fell in error in not considering the plea of plaintiff of partition after death of Anjirabai of the property left behind by Anjirabai after her death? 2. Whether the courts below fell in error in holding that 1959 partition was the final partition and it could not be reopen? 3. Was it necessary to consider such question at all in view of the fact that there was an exchange of the fields between Anjirabai, Chandrakant and Gajabrao in 1979? 4. 2. Whether the courts below fell in error in holding that 1959 partition was the final partition and it could not be reopen? 3. Was it necessary to consider such question at all in view of the fact that there was an exchange of the fields between Anjirabai, Chandrakant and Gajabrao in 1979? 4. What is effect of exchange of the fields in 1979 on the will said to have been executed by Anjirabai in 1971? The appellant is directed to file paper-book within period of eight weeks. The matter be listed for final hearing after paper-book is filed. Interim stay to continue.” 4. The factual position not in dispute need to be stated first. The suit property was partitioned between the father of the plaintiff and the defendant Nos.1 and 2 on 30.03.1959 by registered partition deed at Exh.94. The mother of the plaintiff and the defendant No.1, Smt. Anjirabai was not granted any share in the partition. On 14.04.1971 an exchange deed was executed between the plaintiff and the defendant No.1, which was registered and is marked as Exh.93. On the same date another registered relinquished deed was executed by the plaintiff and the defendant No.1 in favour of their mother Smt. Anjirabai and it is marked as Exh.70. Smt. Anjirabai thus became the owner of the entire suit property. On 30.10.1979 Smt. Anjirabai executed a registered Will at Exh.94 by which field Survey No.8 admeasuring 9 acres and 30 gunthas was allotted to Chandrakant Panjabrao the grandson and in exchange of it, she retained field Survey No.21/2 admeasuring 12 acres and 2 gunthas. Field Survey No.6 was given to the plaintiff Gujabrao and in exchange of that, she retained field Survey No.21/1 admeasuring 14 acres and 26 gunthas. As per this Will, the defendant was entitled to have Survey No.21/2 and 19/1, whereas the plaintiff was entitled to have Survey No.21/1 and 28/2. Smt. Anjirabai expired on 05.04.1987. 5. Survey No. 21/2 consist of total area of 12 acres and 2 gunthas, Survey No. 21/1 consist of 14 acres and 26 guntas, Survey No. 19/1 consist of 13 acres of land and Survey No. 28/2 consist of 8 acres and 27 gunthas of land. Smt. Anjirabai expired on 05.04.1987. 5. Survey No. 21/2 consist of total area of 12 acres and 2 gunthas, Survey No. 21/1 consist of 14 acres and 26 guntas, Survey No. 19/1 consist of 13 acres of land and Survey No. 28/2 consist of 8 acres and 27 gunthas of land. In the plaint, a decree for simplicitor permanent injunction has been claimed restraining the defendants from interfering with the possession of the plaintiffs over the suit property which is described as Gat No. 51, admeasuring 7 hectare and 84R, situated at Veni (Kasba) and bounded as under; To the East : Abaji Deosthan. To the West : Field of Shri Chintaman Dibamuthe To the North : Nala within Gat No. 51 and thereafter field of Shri Champatrao Maskare To the South : Field Gat No.(Blank), Old Survey No.19/2 of plaintiff. In paragraph 2 of the plaint, it is stated that the field Gat No. 51 was formed out of consolidation of previous field Survey No.(Blank). That field was originally in the name of Smt. Anjirabai wd/o Champatrao Chavhan, who was mother of the plaintiff and the defendant no.1. In the same paragraph, it is stated that Gat No. 51 was in total 15 hectare and 59R and the plaintiff has half share to the extent of 7 hectare and 84 R in the entire Gat No. 51. The injunction is claimed in respect of this property only. 6. The defendants have in their written statement filed a counter claim and a decree is claimed for possession of 18.20 acres of land out of Gat No. 51. The defendants claimed that by virtue of will executed by Smt. Anjirabai, they have become owner of 25 acres and 2 gunthas of land out of Gat No. 51 and the plaintiff has encroached upon 18.20 acres of land belonging to the defendants. The ownership of the plaintiff over 7 hectare and 84 of land i.e. about 19 acres out of Gat No. 51 has not been disputed. The plaintiff has not claimed injunction in respect of land over and above 7 hectare and 84R of land equivalent to 19 acres in Gat No. 51. The defendants have not given the complete description of the property over which they are claiming the title. The plaintiff has not claimed injunction in respect of land over and above 7 hectare and 84R of land equivalent to 19 acres in Gat No. 51. The defendants have not given the complete description of the property over which they are claiming the title. There is no plaint map filed demarcating the area of ownership of the plaintiff and the defendants and the portion forcibly taken in possession by the plaintiff out of the land owned by the defendants. Neither the plaintiff nor the defendants have filed the suit for declaration of ownership, title and possession against each other, either on the basis of Will at Exh. 94 or the exchange deed at Exh. 93. It was not the issue framed by the trial Court regarding ownership over the suit property. 7. In the absence of such description of the property, the pleadings of material facts and framing of issue of title, the courts below could not have passed a decree for possession in the counter claim raised by the defendants. The decree passed by the trial Court, as has been confirmed in appeal cannot, therefore, be sustained. So also, the decree passed by the trial Court as has been confirmed dismissing the suit filed by the plaintiff does not give rise to any substantial question of law. The courts below ought to have dismissed the suit as well as the counter claim, leaving it open to the parties to file a suit for declaration of title and possession or for injunction. 8. In the result, the second appeal is allowed and the judgment and decree passed by the trial Court in Special Civil Suit No. 90 of 1993 on 07.08.1993, as has been confirmed in Regular Civil Appeal No. 147 of 1993, decided on 04.02.1999, is hereby quashed and set aside. The suit filed by the appellant/plaintiff and the counter claim filed by the defendants are dismissed. The parties are, however, granted liberty to file a suit on the basis of title and to claim a decree either for permanent injunction or for possession. All questions are left open to be decided in the said suit if it is so filed. No order as to costs.