Saturday 12 November 2016

Whether title to property is not proved?

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

No comments:

Post a Comment