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2025 DIGILAW 567 (KAR)

Dyamanna, S/o. Amasidda Kattikar v. Ranjeet @ Appasaheb, S/o. Kashinatha Patil

2025-06-25

M.G.S.KAMAL

body2025
JUDGMENT : (M.G.S. KAMAL, J.) 1. This Regular Second Appeal is filed by defendant No.2, the legal representatives of defendant No.3, and defendant Nos.4 and 5, being aggrieved by the judgment and decree dated 26.09.2022 passed in O.S. No.96/2021 (Old O.S. No.1522/2012) on the file of Civil Judge and JMFC, Kagawad (hereinafter referred to as “the trial Court”). By the said judgment and decree, the suit of the plaintiff has been decreed, declaring the plaintiff to be the absolute owner of the suit properties and the alienation made by defendant No.1 in favour of defendant Nos.2 to 5 in respect of the suit properties as not binding on the plaintiff and further, the defendants have been permanently restrained from alienating the suit property. 2. The subject matter of the suit are the following properties: Sl. No. R.S.No. Extent A-G Assessment Rs-Ps. 1. 37/2+3/2A 01-05 00-93 2. 37/2+3/2C 01-36 01-58 3. 37/2+3/2B 01-38 01-62 4. 37/2+3/2D 03-01 03-01 3. The case of the plaintiff is that: (a) Originally land in RS No.37/2+3 was measuring 16 acres 35 guntas. That in a partition between him and his brother, Raosab Kashinath Patil, the plaintiff was allotted 8 acres of land while his brother was allotted 8 acres 35 guntas of land. The portion that was allotted to the share of plaintiff is assigned with RS No.37/2+3/B, while the portion that was allotted to his brother was assigned with RS No.37/2+3/A. A joint Vardi was given by the plaintiff and his brother Raosab Kashinath Patil on 04.10.1995, which was certified and entered in ME No.1421 effecting the partition. Thus, ever since the date of partition in the year 1995, the plaintiff has been in peaceful possession and enjoyment of his portion of the property bearing RS No.37/2+3/B and his brother was in possession of RS No.37/2+3/A of Mangasuli village. (b) Defendant No.1 who is the wife of said Raosab Kashinath Patil in collusion with him created a bogus partition deed thereby suit property belonging to the plaintiff in RS No.37/2+3/B came to be entered in her name vide ME No.1866 on 17.06.1998 behind the back of the plaintiff without his knowledge and notice. (c) That on learning about the same, the plaintiff initiated RTS proceedings bearing Appeal No.106/1998-99 before the Deputy Tahasildar, Kagwad and thereafter, preferred an appeal against the said order before the Assistant Commissioner, Chikodi. (c) That on learning about the same, the plaintiff initiated RTS proceedings bearing Appeal No.106/1998-99 before the Deputy Tahasildar, Kagwad and thereafter, preferred an appeal against the said order before the Assistant Commissioner, Chikodi. The Assistant Commissioner, Chikodi had stayed the execution and operation of the order of the Deputy Tahasildar. Thereafter, with intervention and mediation of the elderly persons a compromise petition came to be filed in the aforesaid RTS proceedings and order came to be passed. Respondent No.1 (defendant herein) in the said appeal agreed that the appellant (plaintiff herein) to be the owner of the suit land in RS No.37/2+3/B and the said land shown in the name of the appellant (plaintiff herein). It is further contended that, the plaintiff was under the impression that the name of defendant No.1 had been deleted in terms of the compromise entered into the said RTS Appeal No.106/1998-99. However, despite the compromise, the name of defendant No.1 continued in the revenue records in respect of land bearing RS No.37/2+3/B. Taking advantage of the same, the defendant No.1 sold the suit land in favour of defendant Nos.2 to 5 which the plaintiff learnt recently. (d) The defendant No.1 sold an extent of 1 acre 36 guntas out of 8 acres in RS No.37/2+3/B in favour of one Dyamanna Kattikar (defendant No.2) of Mole in terms of deed of sale dated 19.07.2010. Another extent of 1 acre 38 guntas was sold by defendant No.1 in favour of Laxman Dalawai (defendant No.3) in terms of sale deed dated 19.07.2010 and another 3 acres 1 gunta of land was sold in favour of Pandit Durgi and Murageppa Durgi (defendant Nos.4 and 5 respectively) in terms of sale deed dated 19.10.2010. Plaintiff learnt about the said alienation on 10.09.2012 when he sought certified copies of the sale deeds, thus giving rise to the cause of action for the purpose of filing of the suit for declaration and consequential, relief of injunction. 4. Defendant No.1 filed written statement denying the plaint apartments of a joint Vardi being given by the plaintiff and her husband – Raosab Kashinath Patil as per ME No.1421. It is however contented that, at that time, land in Sy.Nos.445/3 and 443/5 were not included. 4. Defendant No.1 filed written statement denying the plaint apartments of a joint Vardi being given by the plaintiff and her husband – Raosab Kashinath Patil as per ME No.1421. It is however contented that, at that time, land in Sy.Nos.445/3 and 443/5 were not included. As such, again a partition by way of family arrangement took place in the year 1997 in terms of which land in Sy.No.37/2+3/B was allotted to the share of defendant No.1 and ever since then she has been in possession of the said land as owner. Accordingly, ME No.1866 came to be certified. The allegation of collusion between defendant No.1 and her husband is denied. It is contended that RTS proceedings initiated by the plaintiff were disposed off in favour of defendant No.1 and the said mutation entries is not satisfied by the authority. The further allegation of defendant No.1 alienating the property in favour of defendant Nos.2 to 5 without knowledge of the plaintiff is also denied. Defendant No.1 further contended that, ever since the date of entry in ME No.1866 of 1997, she has been in possession of the same till the same were sold in favour of defendant Nos.2 to 5 continuously, peacefully without any obstruction with the knowledge of the plaintiff and being hostile to the interest of the plaintiff. As such, alternatively defendant No.1 had perfected her title over the suit property, hence sought for dismissal of the suit. 5. Defendant No.5 apparently for himself and on behalf of defendant Nos.2 to 4 reiterating the contents of the written statement of defendant No.1 by denying the case of the plaintiff. It is contended that the plaintiff has never questioned the right, title and entitlement of plaintiff by defendant No.1 and the purchase of property by them was to the knowledge of the plaintiff. The plaintiff has no right, title and interest over the suit property. That since they are the bonafide purchasers for value, sought for dismissal of the suit. 6. The Trial Court framed the following issues for its consideration: 1.Whether the plaintiff proves that, he is absolute owner of suit properties? 2.Whether the plaintiff proves that, he is in possession and enjoyment of the suit properties? 3.Whether the plaintiff proves that, the alienation made by defendant No.1 in favour of defendant No.2 to 5 is not binding upon him? The Trial Court framed the following issues for its consideration: 1.Whether the plaintiff proves that, he is absolute owner of suit properties? 2.Whether the plaintiff proves that, he is in possession and enjoyment of the suit properties? 3.Whether the plaintiff proves that, the alienation made by defendant No.1 in favour of defendant No.2 to 5 is not binding upon him? 4.Whether the plaintiff is entitled for permanent injunction as prayed? 5.Whether the plaintiff is entitled for relief claimed? 6.What decree or order? 7. Plaintiff examined himself as PW1 and another witness as PW2 and exhibited 20 documents marked as Ex.P1 to P20. No oral or documentary evidence is lead on behalf of defendants. On appreciation of evidence adduced by the plaintiff, the Trial Court answered issue Nos.1 to 5 in the affirmative and consequently, decreed the suit as sought for. Being aggrieved by the same, the defendant Nos.2, 3(since deceased represented by his legal representatives), 4 and 5 filed regular appeal in RA No.109/2022. Along with the appeal the said defendants are also filed an application under Order XLI Rule 27 of Code of Civil Procedure, 1908 (for short, ‘CPC’), seeking production of documents. The First Appellate Court framed the following points for its consideration: 1. Whether the trial court has erred to consider the evidence of both the parties and wrongly passed the erroneous judgment? 2. Whether the appellants have made out sufficient ground for setting aside the impugned judgment and remand the case to the trial court? 3. Whether the judgment and decree passed by the trial court calls for interference of this court? 4. What order or decree? 8. On re-appreciation of the evidence and contentions of the parties conquered with the reasoning and conclusion arrived by the Trial Court, the First Appellate Court also found that the defendant Nos.2 to 5 have not made out any case for production of additional documents and accordingly, rejected the application consequently, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, defendant Nos.2 to 5 are before this Court. 9. Smt. Pallavi S. Pachhapure, learned counsel appearing for the appellants reiterating the grounds urged in the memorandum of appeal, at the outset submitted that the suit for mere declaration without seeking consequential relief of possession could not have been entertained by the Trial Court and the First Appellate Court. 9. Smt. Pallavi S. Pachhapure, learned counsel appearing for the appellants reiterating the grounds urged in the memorandum of appeal, at the outset submitted that the suit for mere declaration without seeking consequential relief of possession could not have been entertained by the Trial Court and the First Appellate Court. That the overwhelming material evidence produced by the defendants would indicate that they being in physical possession of the property which aspect of the matter has not been taken note of by the Trial Court and the First Appellate Court. She relied upon the judgement of the Hon’ble Apex Court in the case of Vasantha (dead) Through LRs. Vs. Rajalakshmi @ Rajam (Dead) through LRs. in Civil Appeal No.3854/2014 disposed off on 13.02.2024, in support of her contention that a suit for declaration without seeking consequential relief of possession was not maintainable. She submits that the First Appellate Court erred in not permitting the defendants to lead additional evidence by allowing the application filed under Order XLI Rule 27 of CPC. The said documents would have established the present physical possession of the defendants over the suit properties. 10. She further submits that the Trial Court and the First Appellate Court have erred in merely relying upon the documents at Ex.P20 which is an order sheet maintained by the Assistant Commissioner in RTS Appeal No.106/1998-99, come to the conclusion that the parties have entered into a compromise without appreciating the fact that even after the said purported compromise the name of defendant No.1 continued to remain in the revenue records for over 10 years and plaintiff did not take any steps in this regard. Therefore, she submits that the compromise even if it had been entered into, the same had not been given effect to and the plaintiff would not have taken any benefit of the said compromise. Thus, she submits that non-appreciation of these aspects of the matter resulting perversity in the judgments passed by the Trial Court and the First Appellate Court giving rise to substantial question of law. 11. Per contra, Sri. Sabeel Ahmed, learned counsel appearing for the plaintiff submits that the fact of earlier partition that had been entered into between the plaintiff and his brother Raosab Kashinath Patil who was the husband of defendant No.1 is not denied. 11. Per contra, Sri. Sabeel Ahmed, learned counsel appearing for the plaintiff submits that the fact of earlier partition that had been entered into between the plaintiff and his brother Raosab Kashinath Patil who was the husband of defendant No.1 is not denied. He submits that the subsequent partition as claimed by defendant No.1 was a false and fabricated one. Therefore, the plaintiff had taken action by initiating revenue proceedings challenging the mutation entries which culminated in a compromise recognising the rights of the plaintiff. He further submits that the sale deeds in question were executed in the year 2010 which the plaintiff had challenged within 2 years of their execution and immediately, on he learning about the execution of the said documents. 12. He further submits that these events would indicate that the plaintiff has been vigilant about his rights in approaching the Court as and when he learnt about the illegality being committed by defendant No.1. He further submits that the plaintiff has never either pleaded or admitted of he not being in possession of the properties anywhere in the plaint. It is a specific case that, he is owner in possession of the suit properties. Therefore, there is no requirement of plaintiff to seek relief of consequential relief of possession and the suit for declaration was maintainable. Hence, he submits there is no substantial question of law would arise for consideration and seeks for dismissal of the appeal. 13. Heard and perused the records. 14. There is no dispute of the fact that land in Sy.No.37/2+3 originally measured 16 acres 35 guntas which was divided into two portions between the plaintiff and his brother Raosab Kashinath Patil who is the husband of defendant No.1. The said division had taken place in the year 1995. In the said division, an extent of 8 acres 35 guntas of land out of the said land was allotted to the share of Raosab Kashinath Patil which was assigned with RS No.37/2+3/A and a portion of 8 acres that was allotted to share of the plaintiff was assigned with RS No.37/2+3/B. To this extent, there is no dispute between the parties. 15. The issue seems to have emerged when a revenue entry vide ME No.1421 came to be effected showing the land which had been allotted to the share of plaintiff was mutated in the name of defendant No.1. 15. The issue seems to have emerged when a revenue entry vide ME No.1421 came to be effected showing the land which had been allotted to the share of plaintiff was mutated in the name of defendant No.1. This transaction was questioned by the plaintiff by initiating RTS proceedings before the Tahasildar and thereafter, filing revenue appeal in RTS Appeal No.106/1998-99, in which Assistant Commissioner had stayed the operation of the said revenue entries. 16. Ex.P20 is the order sheet of the said proceedings which reads that “parties having made submission before the authority of they having entered into compromise and filing a memo in that regard.” Based on the submission and the memo so filed, the RTS proceedings have been dismissed. There is no dispute to this aspect of the matter either. 17. The plaintiff at paragraph No.4 of the plaint has specifically pleaded that “due to mediation of elderly person and accordingly a compromise petition came to be filed in RTS Appeal No.106/1998-99 on 09.02.2000 and the Assistant Commissioner, Chikkodi passed an order as per the terms of compromise filed by the parties, wherein that respondent in RTS Appeal No.106/1998-99 agreed that the appellant is the owner of the suit land in RS No.37/2+3/B, as the said land was in the name of appellant”. As against which specific and categorical assertion that the defendant No.1 in her written statement at paragraph No.2 has stated as under: “RTS proceedings disposed in favour of defendant No.1 and said mutation is not set aside by any Authority of law.” 18. Except the above bald and vague denial nothing is pleaded by the defendant No.1 with regard to the assertion made by the plaintiff regarding the compromise which has been entered into. 19. The learned counsel for the appellants vehemently submits that the compromise which is referred to Ex.P20 is not admitted by the defendant as no such compromise was ever entered into. 20. Ex.P8 is the order sheet maintained by the Assistant Commissioner in RTS Appeal No.106/1998-99, who is a Quasi Judicial Authority. It is settled principle of law that the records of the Courts and the Tribunal carry unimpeachable value unless it is brought on record the same have either be manipulated or fabricated which is not the case at hand. 20. Ex.P8 is the order sheet maintained by the Assistant Commissioner in RTS Appeal No.106/1998-99, who is a Quasi Judicial Authority. It is settled principle of law that the records of the Courts and the Tribunal carry unimpeachable value unless it is brought on record the same have either be manipulated or fabricated which is not the case at hand. The factors of compromise having been recorded and noted in Ex.P20, the Trial Court and the First Appellate Court have made no mistake in relying upon Ex.P20 in justification of the claim made by the plaintiff regarding the compromise having been arrived in between the plaintiff and defendant No.1. Though, the said document at Ex.P20 do not expressly mention about defendant No.1 agreeing and admitting the ownership of the plaintiff over the property, the specific and categorically assertion made by the plaintiff in the plaint as extracted herein above which is not denied by the defendant No.1 in her written statement, probablizes the case of the plaintiff regarding defendant No.1 having admitted the ownership of the plaintiff over the property measuring 8 acres in RS No.37/2+3/B. 21. There is yet another interesting aspect of the matter to be noted here is that according to the defendant No.1 after the partition that has taken place between the plaintiff and his brother Raosab Kashinath Patil who was the husband of defendant No.1 in the year 1995, again a subsequent partition was entered into by way of family arrangement in the year 1997, in terms of which the property that was allotted to the plaintiff was allotted to the share of defendant No.1. No explanation is provided as to on what basis defendant No.1 being the wife of Raosab Kashinath Patil during his lifetime would be entitled for a share in the joint family property belonging to the plaintiff and her husband Raosab Kashinath Patil. This factor further probabalises the allegation made by the plaintiff regarding fabrication of ME No.1866 based on which defendant No.1 was claiming her right over the suit properties. 22. The Trial Court and the First Appellate Court have therefore come to just and proper conclusion of accepting the case of the plaintiff of he being the absolute owner in possession of the suit property and defendant No.1 based on created document claiming her right over the property. 22. The Trial Court and the First Appellate Court have therefore come to just and proper conclusion of accepting the case of the plaintiff of he being the absolute owner in possession of the suit property and defendant No.1 based on created document claiming her right over the property. As rightly taken note of by the Trial Court and the First Appellate Court, defendant No.1 without having any right over the property that was allotted to the share of the plaintiff could not have alienated the same in favour of defendant Nos.2 to 5 in terms of the deeds of sale noted herein above. The said documents having been executed by person without having any right, title or authority would not bind or effect the rights of the plaintiff. 23. On the question of maintainability of a suit for bare declaration without asking for the relief of possession, reliance placed on by the learned counsel for the appellant in the judgment of the Hon’ble Apex Court in the case of Vasantha (supra) has no consequences inasmuch as, in the said case as seen at paragraph No.33 of the said judgement, the plaintiff in the said suit was aware of defendant (appellant in the said matter) being in possession of the suit property and the plaintiff himself in the plaint had pleaded that the defendant therein being in possession of the property. It is under those circumstances, the Hon’ble Apex Court also held that the plaintiff being aware of he not be in possession and defendant therein being in possession of the property ought to have sought for relief of possession along with declaration. The facts in the instant case being distinguishable, the said judgement is of no avail. 24. The plaintiff in the instant case has not pleaded or whispered about he not being in possession of the property. It is his specific case that based on false entries, documents were created and the property was alienated while he continued to be in possession of suit property. Issue No.2 is framed based on these assertions which have been held in favour of plaintiff. No error therefore can be found with the conclusion arrived by the Trial Court and confirmed by the First Appellate Court. 25. Issue No.2 is framed based on these assertions which have been held in favour of plaintiff. No error therefore can be found with the conclusion arrived by the Trial Court and confirmed by the First Appellate Court. 25. As regards the First Appellate Court not permitting the defendants to adduce additional evidence is concerned, at paragraph No.20, the First Appellate Court has adverted to the requirement for production of documents under the law and since the defendant Nos.2 to 5 have not met this requirement of law, declined to accept the same, and as such the same cannot be found fault with. No substantial question of law therefore would arise for consideration. The appeal is therefore dismissed.