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2024 Supreme(Online)(Bom) 7704
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 497 OF 2016
Jagannath Laxman Saykhede (Dead),
through Legal heirs :
1) Bhaskar Jagannath Saykhede,
aged about 80 years, Occ. : Retired,
2) Ramesh Jagannath Saykhede,
aged about 78 years, Occ. : Retired,
3) Meera Jagannath Saykhede (Dead),
through legal heirs :
3(1) Deepak S/o Sadanand Devgirkar,
3(2) Kiran S/o Sadanand Devgirkar,
3(3) Subhada D/o Sadanand Devgirkar,
3(4) Nivedita D/o Sadanand Devgirkar,
At present all R/o. Shriram Nagar,
Bhadrawati, Dist. Chandrapur.
4) Baby Jagannath Saykhede,
aged about 70 years, Occ. : Household,
Appellant Nos.1, 2 and 4
R/o. Gandhi Ward No.2, Hinganghat,
Tah. Hinganghat, Dist. Wardha. …. APPELLANTS
// VERSUS //
Mangilal Jorawarmal Munot (Dead),
through legal heirs :
1) Mahendra Mangilal Munot,
aged about 50 years, Occ. : Business,
2) Rajendra Mangilal Munot,
aged about 37 years, Occ. : Business,
Both R/o. Gandhi Ward, Hinganghat,
Tah. Hinganghat, Dist. Wardha.
3) Narendra Jagannath Saykhede (Dead),
through legal representatives :
3(1) Nanda Wd/o Narendra Saykhede,
aged about 58 years, Occ. : Housewife,
3(2) Milind S/o Narendra Saykhede,
aged about 32 years, Occ. : Labour,
3(3) Anuja D/o Narendra Saykhede,
aged about 30 years, Occ. : Nil.
All R/o. Plot No.20, Sai Nagar,
Hingna Road, Nagpur.
4) Suresh Jagannath Saykhede,
aged about 60 years, Occ. : Service,
R/o. Plot No.20, Sai Nagar,
Hingna Road, Nagpur.
5) Shree Siddheshwar Ganpati
Devesthan Trust, through President
Shri Sunil Bhaskar Saikhede,
(Shree Siddheshwar Ganpati
Devesthan Trust, Hinganghat)
(Temple situated at Gandhi Ward,
Hinganghat) i.e. on suit property. …. RESPONDENTS
Ku. Sulbha B. Saikhede, Advocate for Appellants.
Mr. Sudhir Dhurve, Advocate for Respondent Nos.1 and 2.
Mr. Tanveer Ansari, Advocate for Respondent Nos.3(1) to 3(3).
Mrs. Varsha Warade, Advocate h/f. Mr. S. D. Chande, Advocate
for intervenor/Respondent No.5.
CORAM : SANJAY A. DESHMUKH, J.
DATE : 09th AUGUST, 2024.
For the Appellants/Petitioners: Sulbha B. Saikhede
For the Respondents: Sudhir Dhurve, Tanveer Ansari, Varsha Warade, S. D. Chande
A purchaser of an undivided share in a joint property cannot claim exclusive possession or sue for encroachment against other co-owners without first filing a formal suit for partition to determine and separate their specific share of the property.
Headnote:(A) Civil Procedure - Property Law - Co-ownership - A purchaser of an undivided share from a co-owner cannot maintain a suit for recovery of possession or damages for encroachment against other co-owners without first initiating and obtaining a decree for partition to carve out a specific share. (Paras 12, 14)
(B) Evidence - Revenue Records - The object of maintaining revenue records is to serve fiscal purposes of the state; they do not confer title or ownership, nor can they be relied upon as conclusive evidence of partition of joint family property. (Para 13)
(C) Civil Procedure - Pleadings - A court is precluded from granting relief that has not been specifically pleaded and proved; a move to grant possession based on a sale deed without evidence of a prior partition is legally unsustainable and amounts to an illegal forcible partition. (Paras 11, 12)
Facts of the case:
A purchaser bought a partial interest in a property from the heirs of one of two brothers who were co-owners. The purchaser filed a suit for possession of an allegedly encroached portion of the property, relying on revenue records and a measurement map. The defendants argued that no partition of the property had ever taken place, that the entire suit property remained undivided, and that a trust-based place of worship existed on the land. Although the lower courts decreed the suit, the appellate court acknowledged the invalidity of the measurement map while still directing handover of possession based on the sale deed.
Findings of Court:
The court held that the sale of an undefined share of a property by a co-owner does not grant the purchaser the right to dispossess other co-owners without a formal partition suit. Revenue records lack the status of proof regarding partition, and the trial courts erred by failing to address the fundamental requirement of proving the partition before seeking exclusive possession. The failure to plead and substantiate the partition rendered the claims of encroachment and entitlement to possession legally unsustainable.
Issues: The primary issues were whether the purchaser of an undivided share in joint property can seek exclusive possession without a partition suit, whether revenue records are sufficient to prove partition, and whether the court can grant relief of possession in the absence of a proven partition or specific pleadings.
Ratio Decidendi: A purchaser of a co-owner's interest in joint property is not entitled to exclusive possession of any specific part of that property until it has been partitioned through a formal civil proceeding. Without such partition, a purchaser simply steps into the shoes of the vendor as a co-owner, and any attempt to claim possession of specific portions is an illegality. Courts must strictly adhere to the principle of 'first plead and then prove,' and relief cannot be granted on grounds not supported by evidence or formal partition.
Result: Appeal allowed; judgments and decrees of the lower courts were set aside; suit dismissed.
ORAL JUDGMENT.
1. This appeal is preferred against the Judgment and decree passed by the District Judge-1, Wardha in Regular Civil Appeal No.56 of 2011, dated 28.07.2016, which was preferred against the Judgment and decree passed by Joint Civil Judge, Junior Division, Hinganghat in Regular Civil Suit No.42 of 1984 dated 07.03.2009. The respondent No.5 is added in this appeal as per order passed by this Court in Misc. Civil application No.882/2023. He is President/Trustee of the temple of God Siddheshwar, which is in existence in the suit property.
2. Brief facts of the plaintiff’s case are as under :
(i) The property bearing No.407, Nazul Block No.9, admeasuring 1251 sq.ft. out of it half share, situated in Gandhi Ward No.2, Hinganghat, District Wardha is subject matter of suit. The plaintiff purchased the suit property by sale-deed on 13.10.1980 from the wife and daughters of late Gangadhar Laxman Saykhede who was brother of defendant Jagannath Laxman Saykhede.
(ii) The plaintiff contended that after the sale-deed he took possession of his half share in the suit property. His name was recorded in the Record of Rights of suit property as per sale-deed of suit property.
(iii) The defendants encroached upon the suit property. The measurement of suit property was carried on 12.08.1997 and it was revealed that the defendants committed encroachment of 100.6 sq.mtr. i.e. 1082.85 sq.ft. in the suit property. Therefore, the plaintiff prayed for possession of that encroached area from the defendants and also claimed damages for its illegal occupation.
(iv) The defendants come with the defence that suit property is not partitioned. The sale-deed is not legal and valid. The possession of the defendants over the suit property cannot be disturbed. The suit for partition of suit property is not filed by the plaintiff. The suit is not maintainable. It is prayed to dismiss the suit.
(v) The learned trial Court partly decreed the suit and directed the defendants to hand over the possession of the encroached area of 1087.85 sq.ft. out of suit property to the plaintiff as per measurement Map. The defendants preferred first appeal bearing R.C.A. No.56 of 2011. It was dismissed. The first appellate Court held that the map is not proved. However, it directed to hand over possession of entire suit property as per sale-deed the length and width and boundaries for effective execution of decree. Thus, the defendants were directed to vacate and deliver the possession of the entire suit property to the plaintiff.
3. While admitting the appeal, this Court by order dated 03rd July, 2017 formed the following substantial questions of law :
(1) Whether the finding recorded with regard to partition between Gangadhar and Jagannath being proved is based on proper appreciation of the evidence on record?
(2) The appellate Court having found the measurement map at Exh.135 not to be duly proved, whether the decree of the trial Court could have been modified directing possession of the suit property as described in the sale deed at Exh.87?
4. The learned Advocate Ku. Sulbha B. Saikhede for the appellants submitted that the suit property is not partitioned between the defendant Jagannath and his brother late Gangadhar. The plaintiff further contended that the Cadastral Surveyor, who drawnup the map of the suit property, is not examined. A temple of God Siddheshwar, situated in the suit property is deliberately not shown in the Map. It is prayed to allow the appeal and set aside the judgments and decrees of both the Courts. The learned Advocate for the appellants is relying upon the following authorities :
(i) Balwani Singh & Anr., Vs. Daulat Singh (Dead) By LRs. & Ors., reported in 1997 (7) SCC 137, in which it is held that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value.
(ii) P. Kishore Kumar Vs. Vittal K. Patkar, reported in 2023 LiveLaw (SC) 999, in which it is held that vender c
