Dattatraya vs Rangnath Gopalrao Kawathekar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1971 Supreme(SC) 92

SUPREME COURT OF INDIA
K.S. HEGDE AND A.N. GROVER, JJ.
Dattatraya, Appellant
Versus
Rangnath Gopalrao Kawathekar, (dead) by his legal representatives and others, Respondents.
Civil Appeal No. 1658 of 1967, D/-28-1-1971.
Advocates appeared
M/s. G. L. Sanghi and A. G. Ratnaparkhi, Advocates, for Appellant Mr. P. Kesava Pillai, Advocate for Respondents Nos. 1 (a), (b) and (e) and 2.

Advocates:
A.G.Ratnaparkhi, G.L.SANGHI, P.Kesava Pillai

Headnote:
Civil Laws – Possession of suit properties – Title – Defendant No. 2 in suit from which this appeal arises is appellant before this Court. – Plaintiffs sued for possession of suit properties on basis of their title. – Their case was that defendant No. 1 Dagaduba, who was owner of suit properties sold same to plaintiffs on January 12, 1952; but some of defendants had trespassed on those properties and hence they were constrained to file suit. – Whether in partition in family of defendants 1 and 2, suit properties fell to share of first defendant or second defendant and (2) whether first defendant had sold suit properties to plaintiffs – Held, Court is unable to accept this contention. Exh. 2 is relied on by plaintiffs to prove admission of second defendant that suit properties belonged to his brother and that his brother had sold same to plaintiffs. – Admission is an important piece of evidence. – But it is open to person who made admission to prove that those admissions are not true. – It was not case of appellant that admissions contained in Ex. 2 are wrong admissions and he made those admissions under some erroneous impression or that they were obtained from him by misrepresentation. – His case was that he never executed Ex. 2. – Court have already rejected that case. – Hence admissions contained in Ex. 2 assume importance. Admission is one thing, estoppel is another. – Admission is a piece of evidence but estoppel creates title. – Ex. 2 was relied on as an admission and not as an estoppel. – Court agree with High Court that Ex. 2 affords satisfactory evidence to prove first defendant s title to suit properties. It further proves alienation effected by first defendant in favour of plaintiffs. – Trial court came to conclusion that first defendant was not a shepherd and it was not proved that he was a member of a protected tribe. – In appeal District Judge was inclined to think that first defendant was a member of a protected tribe but it left oven issue, relating to validity of sale and chose to decide case on other grounds. – In High Court plea covered by afore-mentioned issue was not agitated. – High Court did not consider that plea and as such court did not permit Mr. Sanghi to raise that plea in this Court – Appeal Dismissed

Judgment

HEGDE, J.: Defendant No. 2 in the suit from which this appeal arises is the appellant before this Court. The plaintiffs sued for the possession of the suit properties on the basis of their title. Their case was that defendant No. 1 Dagaduba, who was the owner of the suit properties sold the same to the plaintiffs on January 12, 1952; but some of the defendants had trespassed on those properties and hence they were constrained to file the suit. The suit was filed on February, 14, 1953.

2. The first defendant in his written statement pleaded that the suit properties originally belonged to his family; there was a division in the family between himself and his brother, the second defendant; in that division the suit properties fell to his share; thereafter he became the absolute owner of the same and he mortgaged the same to the plaintiffs. But later he changed that version and admitted that he sold the suit properties to the plaintiffs. The second defendant admitted that the suit properties originally belonged to his family. He also admitted that there was a partition in his family but his case was that as a result of that partition, the suit properties fell to his share and that he was in possession of the same. He denied that his brother had any right to alienate the suit properties or in fact he had alienated the same.

3. The two primary questions that arose for decision before the trial court were (1) whether in the partition in the family of defendants 1 and 2, the suit properties fell to the share of the first defendant or the second defendant and (2) whether the first defendant had sold the suit properties to the plaintiffs. The trial court decided both these questions in favour of the plaintiffs and decreed the plaintiffs suit. In appeal the learned District Judge held that the suit properties belonged to the joint family of defendants 1 and 2 and that it had never been partitioned. He further came to the conclusion that the sale put forward by the plaintiffs has not been established. The High Court reversed the decree of the first appellate court and restored that of the trial court. Thereafter this appeal has been brought after obtaining special leave.

4. As seen earlier both the first defendant as well as the second defendant had pleaded that there was a partition in the family. Therefore the only question that fell for decision was whether the suit properties fell to the share of the first defendant or the second defendant. There was no basis in the pleadings for the finding of the learned District Judge that the suit properties were the joint family properties of the first and the second defendants. This was entirely a new case made out by the District Judge. The pleadings in the case did not permit the learned District Judge to come to such a conclusion. Hence in our opinion the High Court was justified in reversing that finding of the first appellate Court. An attempt was made before us to justify the finding of the first appellate court that the suit properties were joint family properties of defendants 1 and 2 by referring to the evidence in the case. We are not satisfied that there is any evidence to support that case. Further a case not pleaded cannot be made out by evidence.

5. Now coming to the question whether the suit properties fell to the share of the first defendant or the second defendant, it was pleaded in the plaint that the second defendant had specifically admitted in a document executed by him on January 12, 1952 that the suit properties were of the exclusive ownership of his brother and that he had no right on the same. In his written statement, the second defendant had pleaded that the deed in question is a forgery and that he had not executed it. The trial court came to the conclusion that the said deed was executed by the second defendant. The first appellate court also did not accept the contention of the second defendant that he did not execute that deed. On the other hand, the first app

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