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2020 DIGILAW 57 (BOM)

Ganpat Sakharam Gangurde v. Sahadu Fakira Shejwal

2020-01-08

SADHANA S.JADHAV

body2020
JUDGMENT : Sadhana S Jadhav, J. 1. Heard the respective counsel. 2. The appellants herein impugned the judgment and order dated 16th July 1994 passed by the Joint District Judge, Nashik in Regular Civil Appeal No. 364 of 1988, thereby upholding the judgment and decree passed by the learned Civil Judge Junior Division, Chandwad dated 15th September 1987 in Regular Civil Suit No. 119 of 1982, thereby decreeing the suit in favour of the plaintiff/respondent and granting perpectual injunction against the present appellants in respect of Survey No. 29/3 to the extent of 2 acre and 4 gunthas. 3. At the threshold, it is also necessary to consider that in the present case the grounds/issues framed by the appellants are only on facts and no substantial question of law has been raised in the second appeal. 4. The facts in a nutshell are that the appellants herein had purchased the land Gat no. 205 from the predecessors in title of the present respondent on 4th March 1970 by way of a registered sale deed. The parties had executed an amended sale deed on 20th March 1970, wherein it was agreed between the parties that inadvertently in the sale deed dated 4th March 1970, the area of the land sold was recorded as 4 acre and 8 gunthas, whereas, in fact, the predecessors in title had sold land admeasuring 2 acre and 4 gunthas. The defendants were a party to the amended sale deed. 5. The plaintiff had approached the Court seeking permanent and perpectual injunction on the ground that the defendants had destroyed the common boundary on 5th August 1982, therefore, they were constrained to file a suit seeking permanent injunction. 6. The plaintiff had also filed an application at 'Exhibit-24' contending therein that the original sale deed is in custody of the defendants and that the defendants be directed to place on record the sale deed dated 4th March 1970 as well as the amended sale deed dated 20th March 1970. The defendants had responded to the said application by filing the photocopies of both the documents on record. It was not contended by the defendants that the original record be called for. Although it is the specific case of the plaintiff that both the original documents are in the possession of the original defendant. The defendants had responded to the said application by filing the photocopies of both the documents on record. It was not contended by the defendants that the original record be called for. Although it is the specific case of the plaintiff that both the original documents are in the possession of the original defendant. In order to substantiate the claim that an amendment sale deed was executed between the parties the plaintiff had place on record the copy of Index-2 showing the mutation in favour of the defendants only to the extent of 2 acre and 4 gunthas and name of the defendants were scored off from the column of other rights as far as 2 acre and 4 gunthas is concerned. 7. The written statement filed by the defendants also did not raise any specific claim against the plaintiff. Both the Courts had held that 'Exhibit-42' which was the correction deed dated 20th March 1970 and 'Exhibit-43' which is the sale deed dated 4th March 1970 is admissible since the same were produced by the defendants. Both the courts below had also considered the recitals of 'Exhibit-42' along with recitals of 'Exhibit-43'. 8. After producing the photocopies of the document at 'Exhibit-43' the defendants i.e. the present appellants had feigned ignorance about the execution of the correction deed in the written statement and in view of the same both the Courts had drawn adverse inference against the defendants. It was also conceded by the defendants that he had made enquiries with the revenue authorities in respect of the crop entries of Gat no. 205. However, no proceedings were initiated for correction of the record of rights although the name of the defendants were deleted to the extent of 2 acres and 4 gunthas. It was in these circumstances, that both the Courts had drawn adverse inference against the defendants. 9. The issue that needs to be considered is as follows 'Whether the courts below have erred in relying upon the secondary evidence which was filed by the defendants' and the answer would be in the negative. 10. The plaintiff could not file primary evidence since it was specifically contended that the original documents are in the possession of the defendants and that he be called upon to produce the same. 10. The plaintiff could not file primary evidence since it was specifically contended that the original documents are in the possession of the defendants and that he be called upon to produce the same. The defendants had produced the photocopies of both the documents at 'Exhibits-42 and 43' and thereafter, feigned ignorance in respect of the document at 'Exhibit-43'. 11. In view of the above discussion, the second appeal being devoid on merits stands dismissed with no order to costs.