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Hasan Usman Mulani Vs. Tukaram Bhiwa Tevardekar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal Nos. 80 and 126 of 1977
Judge
Reported in1982(2)BomCR553
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2
AppellantHasan Usman Mulani; Tukaram Bhiwa Tevardekar
RespondentTukaram Bhiwa Tevardekar; Hasan Usman Mulani
Appellant AdvocateS.S. Gokhale, Adv. for ;K.J. Abhyankar, Adv. in Second Appeal No. 80 of 1977, ;V.B. Rajure, Adv. for ;Bhimrao Naik, Adv. in Second Appeal No. 126 of 1977
Respondent AdvocateV.B. Rajure, Adv. for ;Bhimrao Naik, Adv. in Second Appeal No. 80 of 1977, ;S.S. Gokhale, Adv. for ;K.J. Abhyankar, Adv. in Second Appeal No. 126 of 1977
DispositionAppeal dismissed
Excerpt:
- - to take plaintiffs second appeal first both the courts below appear to have been justified in drawing an adverse inference from the plaintiffs failure to examine one of the attesting witness. both the courts below did not find it safe to rely on the stray admission of the defendant, when the weight of other evidence was against the plaintiff. 50. reasons given by the two courts below appears to me to be cogent and reliable. if the appellate court was not satisfied with even identity of the plot, no fault can be found with the said finding......ghate. plaintiff claims to have purchased this plot in its entirety from shankar ghate under a sale-deed dated 17th august, 1959, exh. 122. the sale-deed is not a registered document. the sale price purports to be rs. 99/-. admittedly, plaintiff is in possession of a portion of this plot bearing property no. 246. the dispute is about another portion of the property bearing no. 50. the plaintiff claims to be in possession and appears to have initiated some construction thereon. the defendant claims to be in possession of this portion. he also claims to have purchased this property under a sale-deed dated 22nd july, 1960, exhibit 138. remaining portion of plot no. 218 is an open site and is not in dispute.2. the defendant denies plaintiff's title to the entire plot no. 218. he also.....
Judgment:

V.S. Deshpande, C.J.

1. This (Appeal No. 126 of 1977) is plaintiff's second appeal. He lost his suit in both the lower courts. Plot No. 218 admittedly belongs to one Shankar Ghate. Plaintiff claims to have purchased this plot in its entirety from Shankar Ghate under a sale-deed dated 17th August, 1959, Exh. 122. The sale-deed is not a registered document. The sale price purports to be Rs. 99/-. Admittedly, plaintiff is in possession of a portion of this plot bearing property No. 246. The dispute is about another portion of the property bearing No. 50. The plaintiff claims to be in possession and appears to have initiated some construction thereon. The defendant claims to be in possession of this portion. He also claims to have purchased this property under a sale-deed dated 22nd July, 1960, Exhibit 138. Remaining portion of Plot No. 218 is an open site and is not in dispute.

2. The defendant denies plaintiff's title to the entire Plot No. 218. He also denies that the plaintiff was in possession of the property bearing No. 50. He claims to have been in possession on the strength of the registered sale-deed dated 22nd July, 1960. Plaintiff instituted this suit on 14th July, 1970 for perpetual injunction against the defendant on the strength of the above title.

3. In support of his case, the plaintiff examined himself. He did not examine two attesting witnesses of the sale-deed Exhibit 122. One of them is admittedly dead. The second witness Budhale is admittedly alive. However, he was not examined. The defendant examined one Bapu Kamble, Assistant Gramsevak of the village. The defendant also examined himself in support of his case. In his cross-examination Bapu Kamble, admitted that the signature on Exhibit 122 appears to that of Shankar Ghate in Modi. However, he could not identity Shankar Ghate's signature in English. The Appellate Court declined to place any reliance on the said admission of Bapu Kamble proof of the signature of Shankar Ghate.

4. Both the courts below did not believe the plaintiff and his witness Bapu Kamble. That is how, the suit came to be dismissed.

5. The learned trial judge has accepted the defendant's case and upheld his title. This part of the judgment is reversed by the Appellant Court. This is how, both the plaintiff and the defendant have filed these two second appeals, plaintiffs' appeal being Second Appeal No. 126 of 1977 and defendant's being Second Appeal No. 80 of 1977.

6. I have not been able to see any merits in any of these second appeals. To take plaintiffs second appeal first both the courts below appear to have been justified in drawing an adverse inference from the plaintiffs failure to examine one of the attesting witness. He appears to be a properties man. His family members are known to all. His brother is also staying at the same place. Defendant says that he tried to find him at the place of his residence, but still he could not be traced. It is clear that such a bald statement cannot be accepted in the absence of something more. Both the courts appear to be right in rejecting the evidence of Bapu Kamble. He is, no doubt, Assistant Gramsevak of the village. He does not say in his evidence that he had occasion to see any hand writing of Shankar Ghate. Identification of Shankar Ghate's signature on the sale-deed is, therefore, of mechanical nature incapable of evidential value.

7. Mr. Rajure, the learned Advocate appearing for the plaintiff strongly urged that in either case, there is no reason whatsoever why, the defendant's admission should be discarded. In his cross-examination, Mulani defendant has admitted that signature on Exhibit 122 sale-deed relied upon by the plaintiff appears to be that of Shankar Ghate. Both the courts below did not find it safe to rely on the stray admission of the defendant, when the weight of other evidence was against the plaintiff. The word 'appears' does betray some doubt about the genuineness of the signature. In either case, mere admission that the signature appears to be of Shankar Ghate by itself cannot amount to unequivocal admission of the Ghate signature. In either case, both the courts thought it proper not to rely thereon. I do not think, I will be justified in relying thereon, in view of the indecisive and shaky answer given by the defendant himself.

8. It is true that the Appellate Court accepted the plaintiff's say that the property is not proved to be worth Rs. 100/-. The Appellate Court, therefore, differed from the trial Judge's view that sale-deed was inadmissible for want of registration. This finding of the learned Assistant Judge however, cannot be of any avail to the plaintiff, when execution of the document is not proved.

9. Both the courts also did not believe plaintiff's evidence about his possession of the suit portion of Plot No. 50. Reasons given by the two courts below appears to me to be cogent and reliable. No interference is, therefore, called for in the findings of the two courts below.

10. Defendant's appeal also shall have to be dismissed. Occasion to file this second appeal seems to have arisen because Appellate Court accepted the possession of the plaintiff in regard to property No. 246. On this basis of the plaintiff's possession, injunction is granted against the defendant restraining him from interfering with the plaintiffs possession of property No. 246. Mrs. Gokhale, the learned Advocate appearing for the appellant in Second Appeal No. 80 of 1977 is justified in contending that there was no occasion for the Appellate Court to pass any decree in respect of property bearing No. 246 or record any finding in regard thereon when the said property was not the subject matter of the suit. This part of the judgment of the Appellant Court cannot be upheld and the said findings shall have to be ignored. With this clarification, the appeals are liable to be dismissed. Both the courts have found that the sale-deed relied upon by the plaintiff does not pertain to the property in dispute viz., property bearing No. 50. Shankar Ghate appears to be the owner of several pieces of land in this area. If the Appellate Court was not satisfied with even identity of the plot, no fault can be found with the said finding.

11. In the result, both the second appeals are dismissed without any order as to costs.


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