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In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Gajanan s/o. Namdeo Kale
Versus
Sakhubai w/o. Bhimaji Kharat (died)., since no L.Rs. & Others
SECOND APPEAL NO. 423 OF 2011 WITH CIVIL APPLICATION NO. 10105 OF 2011
Decided on : 14-03-2012
Another contention of the appellant that in view of provisions of Section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the jurisdiction of the Civil Court was barred, has no merit. Throughout, case of the plaintiff is based on the title of the suit property and said contention has been strengthened by the act of the appellants themselves, when they claimed ownership by way of adverse possession. That itself presupposes that the original plaintiffs are owners of the suit property and they have title over the suit property. Therefore, when the suit is filed based upon title, there is no bar in entertaining said suit.
Civil Procedure Code, 1908 - Section 107 - Remand - Since First Appellate Court, has all those powers like a Court of original jurisdiction under Section 107(2) of CPC hence ground that all issues were not framed by trial Court in second round of litigation devoid of merit.
The Lower Appellate Court in second round of litigation did frame all the points for its determination and invoked the powers under provisions of Section 107 of the Civil Procedure Code and after considering all the points framed for its determination decided the appeal. Therefore, merely because all the issues were not framed by the trial Court in second round would not give rise to a ground to entertain this Second Appeal. The Lower Appellate Court has all those powers like a Court of original jurisdiction under sub-section (2) of Section 107 of CPC. Therefore, the ground that all the issues were not framed by the trial Court in the second round of litigation has no merit.
Civil Procedure Code, 1908 - Order III, Rules 1 and 2 - Evidence of power of attorney - Evidence of power of attorney in respect of an agreement to sell, cannot be believed or accepted.
Further contention of the appellant that the evidence of power of attorney ought to have been believed has no merit. Appellant himself claimed that agreement of sale was in the year 1954 and he entered into agreement of sale, in that case it was for him to enter into witness-box and depose himself to prove agreement of sale. His daughter-in-law- Satyabhama had no occasion to perform any act in the year 1954 and therefore both the Courts below have rightly appreciated the evidence on record and reached to the conclusion that such evidence of power of attorney cannot be believed or accepted.
Therefore, in Court’s considered opinion, viewed from any angle, the respondents are true owners of the property, they have title over the suit property. Merely because original plaintiffs were in helpless situation and they had to borrow Rs. 1000/- from the appellant for performing last rituals/funeral of their husband Bhima, no undue advantage could have been taken/received by the appellant. Therefore, for the reasons aforesaid, the plaintiffs, who are true owners of the property, ought not to have been deprived of their genuine claim. The trial Court and the Lower Appellate Court have rightly considered the case in its proper perspective and appreciated the evidence. The findings recorded are in consonance with the evidence brought on record. There is no perversity as such or there is no any illegality committed by the Courts below. Therefore, there is no substance in the Second appeal. The second appeal is devoid of any merits and same stands dismissed. Consequently, the civil application stands rejected.
Civil Procedure Code, 1908 - Order XXII, Rule 4 - Abatement of appeal - Where legal representatives of one of deceased/decree holder were not brought on record during pendency of appeal against decree of trial Court which was inseparable and indivisible therefore appeal abates in its entirety.
Bare perusal of operative part of the order of the trial Court would make it abundantly clear that said decree was inseparable and indivisible. Therefore, the Lower Appellate Court was not correct and justified in allowing the appeal and remanding the matter back. In fact, as a result of not bringing legal representatives of deceased on record during pendency of the appeal, the Lower Appellate Court ought to have held that, the appeal abates in its entirety. It is also relevant to mention that the appellants herein did file M.A.R.J.I. No. 315 of 2004 for bringing legal representatives of Sakhubai on record after dismissal of the appeal. Therefore, in view of law laid down by the Supreme Court in the case of Budh Ram and others V. Bansi and others, 2010 AIR SCW 5071 and more particularly in para 19 of the said judgment, when decree which was passed by the trial Court was inseparable and indivisible, appeal against said decree for not bringing legal representatives of one deceased decree holder, namely, Sakhubai, stands abated in its entirety. Para 19 of said Supreme Court’s judgment in the case of Budh Ram(supra ) reads thus :
"19. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-a- visremaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test."
MAHARASHTRA CO-OPERATIVE CREDIT SOCIETIES ACT, 1961 - Section 164 - Notice under. Where financial institution was made party to suit and contested said suit therefore giving of notice under Section 164 of Act or not giving of notice, is of no consequence. Since the financial institution was made party to the suit and contested the said suit, therefore, whether notice was given under Section 164 of the Maharashtra Co-operative Societies Act, 1960 or not loses its importance.
Heard Counsels appearing for the parties.
2. Learned counsel for the appellant invited my attention to the grounds taken in the second appeal and submitted that all the grounds No.I to XV would form substantial questions of law for consideration in this Second Appeal. The learned Counsel submitted that the Trial Court as well as the Lower Appellate Court failed to frame specific point about the limitation for filing the suit. It is submitted that the suit which was filed by the plaintiffs was not within limitation. It is further submitted that the plaintiffs have not brought on record the legal representatives of deceased Sakhubai W/o Bhimaji Kharat, though she died during the pendency of the Regular Civil Appeal filed by the appellant herein. It is submitted that said Sakhubai died on 13th November, 1997. The suit was filed on 30th November, 1992 and appeal filed by the appellant herein came to be allowed in the year 2001. It is further submitted that agreement for sale which was executed on 25th January, 1954, was proved by defendant No.1 i.e. appellant herein, by examining the witness by name Balwant Kulkarni, who specifically stated that on 25th January, 1954, the agreement was executed and entire amount of consideration was paid. It is further submitted that defendant No.1 has mortgaged the property with defendant No.2 and obtained the loan for development of the suit land and therefore, the suit was not maintainable as notice under Section 164 of the Maharashtra Cooperative Societies Act, 1960 was not given to the said Bank. It is further submitted that the suit itself was not maintainable as per the provisions of Section 36A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. In support of this contention, learned counsel for the Appellant placed reliance upon the reported judgment of this Court in the case of Narayan S. Bite & others Vs. Mahadeo Shripati Pise & others, 2001 (3) Bom.C.R. 262. The learned counsel further submitted that in Regular Civil Appeal No. 341 of 1993, judgment and order of the trial Court was quashed and set aside and the matter was remanded back to the Trial Court for fresh hearing. However, in second round of litigation, the trial Court failed to frame all the issues and decided the suit only on the additional issues. It is submitted that the trial Court should have framed all necessary issues for its adjudication/determination. In support of this contention, learned counsel for the appellant placed reliance upon the reported judgment of the Supreme Court in the case of Rangammal Vs. Kuppuswami and Anr, AIR 2011 Supreme Court 2344 and in particular, paragraph No.24 of the said judgment. It is further submitted that the appellant herein, who is original defendant is in possession of the suit property since 1954. The plaintiffs have not taken steps to recover the possession since then and therefore, the appellant/original defendant has become owner of the suit property by way of adverse possession. In support of this contention, learned counsel for the appellant placed reliance upon the reported judgment of the Supreme Court in the cases of Balkrishan Vs. Satyaprakash and others, AIR 2001 Supreme Court 700, C.Natarajan Vs. Ashim Bai and Anr, AIR 2008 Supreme Court 363, Mool Chand Bakhru and another Vs. Rohan and others, AIR 2002 Supreme Court 812 and Kalika Prasad and another Vs. Chhatrapal Singh (dead) by L.Rs., AIR 1997 Supreme Court 1699. It is further submitted that the trial Court has erred in holding that defendant No.1 did not step into witness box and through General power of Attorney, his daughter-in-law stepped into witness box. At this juncture, it is pertinent to note that, as regards plaintiff No.2 one Mandabai had stepped into witness box and plaintiff No.2 had not stepped into witness box and as plaintiff No.1 was dead during the pendency of the proceedings after remand, the testimony on behalf of plaintiff No.1 ought not to have been conside
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