Govardhan Gabbulal Marmath & Ors. vs Rangnath Vithoba Shirsath & Ors.

The appellants / original plaintiffs, being aggrieved by the judgment and order dated 20^th August, 1985, passed by the 2^nd Additional District judge, Aurangabad, whereby partly allowed the appeal of the respondents and held that the appellants failed to prove their ownership over the suit plot no. 264, admeasuring 5000 sq. ft., situated at Samarth Nagar (for short, the ‘suit plot’), has preferred this appeal.

None appears for the respondents. Heard learned counsel for the appellants and gone through the impugned judgments and decree as well as the sale-deed, sanad and extract of the enquiry register on record. On perusal of the same, it appears that on 20^th April, 1967, the appellants/original plaintiffs purchased the suit plot from one Hiraman and seven others. Pursuant to the said sale deed, their names were also recorded in the city survey records as the owners of the suit plot. Accordingly, the competent authority, after verifying the record, has issued a sanad in respect of the suit plot in favour of the appellants under Section 129 of the Maharashtra Land Revenue Code (for short, ‘M.L.R. Code’). It is also undisputed that the said sanad has presumptive value unless and until the other parties rebut it.

Learned counsel for the appellants has taken me through the judgment passed by the learned trial Court as well as the appellate Court. He has also taken me through the sale-deed extract (Exh. 134) and other evidence on record and submitted that though the learned trial Court has rightly decreed the suit in its entirety, the learned appellate Court has erred in reversing the findings regarding the appellants / original plaintiffs are the owners of the suit plot as the appellants failed to prove title of their vendor. Therefore, he urged that the appeal be allowed to that extent.

Heard learned counsel for the appellants. Perused the impugned judgments and the record as well. Having considered the above, the following points arise for determination :-

It further appears that the learned trial Court, in paragraph nos. 7 and 8, have categorically dealt with this issue and discussed it in detail and held that the appellants have established their title over the suit plot against the defendants, who have no title, and accordingly answered Issue No.1 in the affirmative that the plaintiffs have proved that they are the owners of the suit plot.

The learned appellate Court, while dealing with the said issue, has erred in observing in paragraph nos. 8 and 16 that the appellants have established their possession over the suit plot and it is to be presumed under Section 110 of the Evidence Act that they are the owners of the suit plot. However, the learned appellate Court has erred in observing that the plaintiffs have failed to prove their possession of the suit plot as lawful. It is also pointed out that the appellants have also failed to establish title of their vendor over the suit plot, and therefore, held that in such circumstances, it cannot be said that the plaintiffs have acquired title of the suit plot from the said vendor, and therefore, held that the appellants failed to prove their title over the suit plot. However, the said finding appears to be contrary to the evidence on record, i.e., the sale deed dated 20^th April, 1967, the sanad (Exh. 134), and the extract of the enquiry register. It also appears that, as per Section 126 of the MLR Code, the State Government had conducted the survey of the land, and after conducting the same, has prepared the statement, which was noted in the enquiry register and after completion of the same, issued a sanad under Section 129 of the MLR Code. Therefore, the sanad has presumptive value unless and until the other parties rebut it as a revenue record. Thus, it appears that the learned appellate Court has not taken into consideration the sale deed and the sanad produced on record, and has erred in observing that the appellants failed to prove their vendor's title. Moreover, the said question was not in dispute, nor was it the duty of the appellants to adduce the evidence in that regard in the absence of a challenge to it. Still, they have proved the sale deed executed in their favour, and pursuant to that, their names were recorded in the city survey record. Therefore, in my view, the findings recorded by the appellate Court are contrary to the evidence on record.

Apart from that, the learned appellate Court has not dealt with the finding recorded by the learned trial Court, and therefore, also without discussing how the finding recorded by the learned trial Court is illegal, has passed the order. Thus, in my view, the said order cannot be sustained in the eyes of the law. As such, the same is liable to be set aside.

To sum up the above discussion, it appears that the appellants have established their title over the suit plot based on the sale deed dated 20^th April, 1967 and sanad. Accordingly, the findings recorded by the learned Appellate Court, without considering these documents, cannot be sustained in law. Hence, I answer Point No. (I) in the negative, and for that purpose, interference is required in the impugned judgment and order. In view of the same, I answer Point No. (II) in affirmative.

As such, the second appeal is allowed. The impugned judgment and order dated 20^th August, 1985, passed by the 2^nd Additional District judge, Aurangabad, to the extent of holding that the appellants failed to prove the ownership over the suit plot, is hereby quashed and set aside. The order passed by the learned trial Court is confirmed. No order as to costs. Pending civil application stands disposed of. The Record and Proceedings should be sent back.