Bombay High Court
Balasaheb Bhagwanrao Ghogare vs Limbrao Baburao Ghogare on 2 January, 2025
2025:BHC-AUG:217
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 348 OF 1992
1. Balasaheb s/o Bhagwanrao Ghogare
age 32 years, occ. Agril.,
r/o Ekurka, Tq. Kallam,
Dist. Osmanabad.
2. Kamalbai w/o Bhagwanrao Ghogare }
} Deceased through
3. Bhagwanrao s/o Narsingrao Ghogare } L.Rs.
3-A Haribhau Bhagwanrao Ghogare
age 59 years, occ. Agril.
3-B Rajendra s/o Bhagwanrao Ghogare
age 57 years, occ. Agril.,
3-C Arun Bhagwanrao Ghogare
age 51 years, occ. Agril,
Respondent Nos. 3-A to 3-C
r/o Ekurka, Tq. Kallam
Dist. Osmanabad. .. Appellants
versus
1. Limbrao s/o Baburao Ghogare
(Deceased through LRs)
1/1 Kusum Anjanrao Thombare
age 62 years, occ. Household
1/2 Kesharbai Dattatray Gaikwad
age 59 years, occ. Household
1/3 Sindhubai Rama Dongare
age 57 years, occ. Household
1/4 Shobha w/o Ramrao Gardas
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age 54 years, occ. Household
1/5 Vyankat s/o Limbraj Ghogare
age 52 years, occ. Agril,
1/6 Shivaji s/o Limbraj Ghogare
age 49 years, occ. Agril.,
All r/o Ekurka, Tq. Kallam,
Dist. Osmanabad.
2. Sheela d/o Shivlal Pardeshi
age 32 years, occ. Agri. & household
r/o Kothala, Tq. Kallam,
Dist. Osmanabad.
3. Chhaya /do Shivlal Pardeshi
age 29 years, occ. Agril & household
r/o as above.
Mr. N. B. Khandare, Advocate for the Appellants.
Mr. V. D. Salunke, Advocate for Respondent Nos. 1/1 to 1/6.
CORAM : R. M. JOSHI, J.
DATE : 2nd JANUARY, 2025.
JUDGMENT :
1. This second appeal takes exception to the concurrent
findings recorded in the judgments passed by Trial Court and First
Appellate Court in Regular Civil Suit No. 41/1997 and Regular Civil
Appeal No. 45/1988 respectively.
2. Parties are referred to as Plaintiff and Defendants.
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3. For the purpose of better understanding of the
substantial questions of law involved herein, it would be relevant to
take into consideration the case sought to be made out by the parties
before the Trial Court.
4. It is the case of Plaintiff that Shivlal was owner of Survey
No. 63 situated at village Kothala, Tq. Kallam, admeasuring 14 acres
and 25 gunthas. Plaintiff claims that Shivlal agreed to sell 7 acres 12
gunthas land from eastern side of Survey No. 63 in favour of Plaintiff
at the rate of rs. 1,050/- per Acre and received Rs. 620/- as earnest
amount. Plaintiff claims that he was put in possession of the suit
property. It is his further case that Shivlal died on 22.09.1974
leaving behind him Defendant Nos. 4 and 5, daughters, as his legal
heirs. It is claimed by Plaintiff that since Shivlal was ill and needed
money for medical treatment, he agreed to sell the suit land to the
Plaintiff. It is claimed that on 21.09.1974, he executed a Tharav
Patra in respect of the suit land. The said document was executed in
the presence of witnesses. It is claimed by Plaintiff that on the same
day, amount of Rs.620/- was paid to Shivlal towards earnest money.
Since Shivlal died on 22.09.1974, Plaintiff requested Talathi for
entering his name in the cultivation column in the record of rights of
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the suit land. However, the said authority refused to do so. It is
alleged by Plaintiff that in collusion with Defendant Nos. 1 to 3, the
Talathi entered name of Defendant No. 2 Balasaheb in the cultivation
column in the record of rights of the suit land for the years 1973-
1974, 1974-1975 and 1975-1976. It is claimed by Plaintiff that
Defendant No. 2 was never in possession of the suit land at any point
of time and as such entries to that effect are illegal and wrong. It is
specifically averred by Plaintiff that Defendant Nos. 1 to 3 are
contemplating obstruction in the possession of Plaintiff over the suit
land. Hence, suit came to be filed seeking following reliefs :-
1- ekSts dksFkGk rk- dGac ;sFkhy tfeu losZ uacj 63 {ks=QG
14 ,Ddj 25 xqaBs vkdkj 26 #i;s 56 iSls iSdh iwosZdMhy 7 ,Ddj 12 xqaBs
tfeuh laca/kh lu 1973&74] 1974&75 o 1975&76 lkykP;k 7 x 12
i=dkrhy dqG vkf.k [kaM jdkU;krhy izfroknh ua- 2 ph uksan pqd
vlY;kps ?kksf”kr dj.;kr ;kos-
2- ofjy tfeuhojhy oknhP;k dcT;kl izfroknhauh fujarj gjdr d#
u;s Eg.kwu oknhP;k gDdkr izfroknhP;k fo#/n fujarjP;k eukbZ gqdwekph
fMdzh ns.;kr ;koh-
3- ;k nkO;kpk [kpZ oknhl izfroknhdMwu ns.;kar ;kok-
4- ;k O;frfjDr oknh T;k ;ksX; o U;k¸; U;k;nkukl ik= vlsy rs
U;k;nku oknhl ns.;kar ;kos-
5. Defendant Nos. 1 to 3 resisted the suit by filing written
statement denying possession of Plaintiff over the suit property. It is
also denied that Shivlal agreed to sell suit land to the Plaintiff. It is
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their further case that Defendant No. 2 is in possession of entire land
bearing Survey No. 63. It is claimed that on 01.06.1974, Shivlal
agreed to sell 7 acres 13 gunthas land from the western side of
Survey No. 63 to Defendant No. 2 Balasaheb for consideration of
Rs.7,325/-, and he received Rs. 5,000/- and executed earnest
receipt. It is claimed by these Defendants that on behalf of daughters
of Shivlal, Bankatlal, being their guardian, executed registered sale-
deed in respect of the suit land in favour of Defendant No. 2. It is
stated in the written statement that Defendant No. 2 is possessing
the suit land as tenant. There is specific objection raised with regard
to the maintainability of suit on the ground that suit simplicitor for
perpetual injunction without asking relief of specific performance of
contract is not maintainable so also declaration in respect of entries
in the revenue record cannot be sought.
6. It needs to be mentioned that initially before the Trial
Court, Bankatlal, guardian of Defendant Nos. 4 and 5 appeared and
filed written statement admitting claim of Plaintiff in respect of the
suit land. However, after Defendant Nos. 4 and 5 became major, they
filed separate written statement denying the claim of Plaintiff.
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7. Learned Trial Court framed issues at Exhibit 103 and
parties were permitted to adduce evidence. Plaintiff examined
himself (Exhibit 142) and also examined 3 witnesses Govardhan at
Exhibit 145, Chhandrrao at Exhibit 146 and Narayan at Exhibit 147.
On the other hand, Defendant No. 2 examined himself at Exhibit 161
and also examined Dattatraya and Uddhav at Exhibits 163 and 164
respectively. Learned Trial Court, on appreciating evidence on
record, decreed the suit and declared that entries in the name of
Defendant No. 2 standing in 7/12 extracts of the suit land for the
respective years are incorrect. Injunction was also granted against
Defendants and they were permanently restrained from obstructing
possession of Plaintiff over the suit land. This order was
unsuccessfully challenged in Regular Civil Appeal No. 45/1988.
Hence, this second appeal.
8. This Court, while admitting the appeal, framed
substantial questions of law were framed as per Ground Nos. VII and
VIII of the appeal memo which read thus :-
1) Both the Courts below wrongly held that the
Judgment of the High Court delivered in Ceiling
Proceedings operates as res-judicata.
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2) It ought to have been held that, the suit
simplicitor for injunction without praying relief of
specific performance is not maintainable.
9. Learned counsel for Defendants submits that both the
Courts below committed error in not considering the fact that the
suit is not maintainable for the reason that no relief of specific
performance of contract is sought by the Plaintiff. He also contends
that agreement to sale (Exhibit 143) is hit by Section 29 of the
Contract Act. It is contended that the said agreement does not
disclose the property which was allegedly sought to be sold by Shivlal
to Plaintiff, and as such said agreement is not executable. It is his
further submission that the learned Trial Court has committed error
in not framing the issue of tenancy as claimed by Defendant Nos. 1 to
3 in their written statement. A grievance is also made by him that
the learned Trial Court without framing such issue recorded finding
that Defendant No. 2 is not tenant. He drew attention of the Court to
the pleadings of the parties and emphasised on evidence led before
the Trial Court. Referring to the evidence on record, it is his
submission that the entire burden lies upon the Plaintiff to prove that
he is in lawful possession of the suit property and unless lawful
possession is established he would not be entitled to seek any
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injunction/relief in respect of the same. In this regard, reference has
been made to the evidence of Narayan (P.W.4) who is a scribe of the
said agreement, who in clear terms admits that Shivlal did not tell
him about the survey number, area of land etc and therefore, it was
not written on the said document. It is his submission that having
regard to these facts, the Trial Court ought to have dismissed the
suit. He also sought to canvass before this Court that the declaration
in respect of revenue record more particularly entries in 7/12
extracts could not have been subject matter of decision before the
Civil Court. He took assistance of following case laws, to support his
submissions:
(i) Laxmibai Sambha Jadhav & others vs. Bharatlal Premchand
Gandhi and others
1976 AIR(Bom.) 160.
(ii) Narayan Muga Teli vs. Ramchandra Muga Teli & others
2004(3) All.M.R. 880
(iii) Hussain Khan s/o Sawarkhan Pathan vs. Shaikh Ahmed
s/o Shaikh Lal
1988(4) Bom.C.R. 60
(iv) Parmanand Gopalrao Kesari vs. Dilip Gopalrao Deshmukh
2020(2)All.M.R. 666
(v) Sachin S. Shah vs. Hemant D. Shah and others
2015(4) Bom.C.R. 636
(vi) Anathula Sudhakar vs. P. Buchi Reddy
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sa348.92.odt2008 AIR(SC) 2033
(vii) Suraj Lamp and Industries Pvt. Ltd. vs.
State of Haryana and another
2012 AIR(SC) 206
(viii) Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra
2004 AIR(SC) 4342
(ix) Kalidas Duryodhan Kadam & others vs. Akash Balu Kadam
Writ Petition No. 283/2020 decided on 10.03.2022.
(x) Shri TarachandJamnadas Wagwani & another vs.
Smt. Anusayabai Gapuji Chandramore
Second Appeal No. 463/2004 decided on 02.07.2015.
10. Learned counsel for Plaintiff supported the impugned
judgments and decree. He resisted the submissions made on behalf
of Appellants and relied upon following judgments :-
(i) Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba
Suryawanshi
2002 AIR (SC) 960
(ii) Laxman Pandu Khadke vs. Pandharinath Purushottam Rane
1989 Mh.L.J. 752
(iii) Gulab Ayubkhan Pathan vs. District Collector
2019 AIR BOM R 3 795.
(iv) Daya Singh and another vs. Gurdev Singh & others
2010(4) Mh.L.J. 190
(v) Bank of India vs. Lakshimani Dass
2000 AIR(SC) 1172
(vi) Sadashiv Chander Bhamgare vs. Eknath Pandharinath
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Nangude
2004(3) Mh.L.J. 1131
(v) Sucha Singh Sodhi vs. Baldev Raj Walia and another
(2018) 6 Supreme Court Cases 733
(vi) Mithu Khan vs. Ms. Pipariyawali and otherwise
AIR 1986 Madhya Pradesh 39
(vii) S. R. Varadaraja Reddiar vs. Xavier Joseph Periaria
AIR 1991 Kerala 288
(viii) Smt. Shbat Die vs. Devi Phal and others
AIR 1971 Supreme Court 2192
(ix) Maneklal Mansukhbhai vs. Jamshedji Ginwalla and sons
AIR 1950 Supreme Court 1
11. This Court has carefully considered the oral submissions
of counsels for both sides and case laws relied upon.
12. At the outset, certain admitted facts are necessary to be
recorded. Undisputedly, Shivlal was owner of Survey No. 63 situated
at village Kothala. He had not owned any other property, since it is
not the case of any party that Shivlal was owner of any other land
other than the suit land. There is further no dispute about the fact
that agreement to sale came to be executed by Shivlal in favour of
Defendant No. 2 on 01.06.1974. Plaintiff’s claim is in respect of
agreement to sale of the property towards eastern side which is
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executed on 21.09.1974. No doubt, Shivlal died on the next day of
execution of agreement with Plaintiff. Pertinently, agreement to sale
executed in respect of another portion of Survey No. 63, with
Defendant No. 2 came to be executed before 3 months of his death.
Thus, this transaction in respect of another part of Survey No. 63
shows that Shivlal had intention to sell property.
13. It would be material to take note of the fact that the
guardian of daughters of Shivlal, infact executed sale-deed in favour
of Defendant No. 2 on the basis of agreement to sale entered into with
Shivlal. This guardian, filed written statement on behalf of minors
admitting claim of Plaintiff. It is after Defendant Nos. 4 and 5
became major they filed separate written statement and denied
execution of agreement to sale by Shivlal so also handing over of
possession of suit property by Shivlal to Plaintiff. However, though
such plea is raised, Defendant Nos. 4 and 5 never entered in the
witness box to substantiate their said case before Trial Court.
14. Now, question that arises before this Court is whether it
was sufficient that Defendant No. 2 leads his evidence to prove that
there was no agreement to sale between Shivlal and Plaintiff, when
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admittedly, he was neither witness to agreement or concerned with
the same. No doubt, initial burden is on the Plaintiff to prove that
there was agreement to sale so also the fact that he was put into
possession of the suit property. Evidence is led by the Plaintiff and
which gets further support from three witnesses. During cross-
examination of these witnesses, nothing was brought on record in
order to discard their evidence about execution of agreement to sale
in respect of suit property by Shivlal and handing over of possession
to Plaintiff. On the other hand, cross-examination of Narayan clearly
shows that there was agreement executed by Shivlal in favour of
Plaintiff. Though he also states that he was not told about the survey
number, area of land, etc., this statement of witness becomes
irrelevant in view of the fact that there is no case made out before the
Trial Court that Shvilal was holding any other land than Survey No.
63. Hand it been so, the provisions of Section 29 of Contract Act
would have come into play. In absence thereof, it cannot be said that
the contract is vague and therefore not enforceable.
15. With regard to the contention of Defendant No. 2 that
issue of tenancy was not framed though it was pleaded is concerned,
the issue of tenancy can never be permitted to be raised just for the
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sake of ouster of jurisdiction of Civil Court. There has to be some
prima facie material in order to make the Trial Court to believe
existence of issue of tenancy which requires to be determined by the
competent authority and it is only thereafter it can be referred. The
facts as they appear from record are so clear that there is no reason
to accept the contention of Defendant No. 2 that he is the tenant in
respect of the suit property. First of all, it is vaguely pleaded in the
written statement that he is tenant of the suit property, and most
importantly in his oral evidence before the Trial Court, he did not
whisper anything about the same. Thus, there is complete absence
of evidence on the part of Defendant No. 2 atleast to prima facie show
that there is a genuine issue of tenancy involved in this case. In fact
such plea of Defendant No. 2 gets falsified completely from his own
document. The sale-deed executed by Defendant Nos. 4 and 5 in
favour of Defendant No. 2 in no uncertain terms records that as far
as suit property, the possession thereof would be given after decision
of present suit. The said recital of sale document of Defendant No. 2
establishes the fact that he was not in possession of the suit property
as the possession was never handed over to him by Defendant Nos. 4
and 5 and if Defendant No. 2 was tenant of the property, question of
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introduction of such recital would never arise. Thus, there existed no
issue of tenancy for its reference to Competent Authority.
16. Both Courts below have held that Plaintiff was able to
prove his possession over the suit property. Since the said findings
are in consonance with the evidence on record and not being
perverse cannot be interfered with.
17. As far as objection to the maintainability of suit for
injunction without seeking specific performance is concerned, there
is no dispute about the fact that Respondent/Original Plaintiff filed
independent suit for specific performance against Defendant Nos. 4
and 5 herein. Apart from this, Hon’ble Supreme Court in case of
Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs and others,
2008 AIR SCW 2692, has held that :-
“Where the Plaintiff is in lawful or peaceful possession of
a property and such possession is interfered or
threatened by the Defendant, a suit for an injunction
simplicitor will lie. A person has a right to protect his
possession against any person who does not prove a
better title by seeking prohibitory injunction. But a
person in wrongful possession is not entitled to an
injunction against right owner.”
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Since Plaintiff succeeds in establishing his peaceful
possession over suit property, may be pursuant to agreement to sale,
he is within his right to protect the possession against any person
who does not prove a better title, i.e. Defendant No. 2 herein this
case. The title of Defendant No. 2 cannot be accepted on the basis of
mutation entry, as it is settled position of law that the entries in
revenue record are meant for fiscal purpose and do not create right in
favour of any person. Thus, there is no substance in the objection
raised with regard to maintainability of suit on this ground.
18. Finally, coming to the objection with regard to the
jurisdiction of Civil Court to grant relief in respect of revenue entry is
concerned, it is necessary to see as to the relief claimed by Plaintiff.
As recorded above, the relief sought is not for alteration of the entry.
No doubt it would be within jurisdiction of the authorities under
Maharashtra Land Revenue Code to effect entries in revenue record
and to cause alteration therein. Thus, it would not be permissible for
Civil Court to direct deletion of revenue entry or substitution thereof.
Exercise of such jurisdiction is prohibited under the code. That
however, would not affect the inherent jurisdiction of a Civil Court to
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declare any entry as incorrect/wrong. In the fact of the case, where
there is evidence to show that infact Defendant No. 2 was never in
possession of suit property, on the face of it the entry taken in the
cultivation column is incorrect. The declaration given by learned
Trial Court to that effect cannot be held to be without jurisdiction.
19. Once there is findings of fact recorded by the Trial Court
and confirmed by First Appellate Court about Defendants trying to
dispossess the Plaintiff from suit property, grant of perpetual
injunction against them, requires no interference.
20. Having regard to the aforestated facts, this Court finds no
substance in the challenge to the impugned judgments and decree
and hence, appeal stands dismissed. Substantial questions of law
are answered in negative.
21. Hence, Appeal stands dismissed.
( R. M. JOSHI)
Judge
dyb