IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
S.A. No. 427 of 1992
Decided On: 14.03.2008
Ganpat Pandurang Ghongade and Ors.
Nivrutti Pandurang Ghongade
Hon’ble Judges/Coram: B.P. Dharmadhikari, J.
Citation: 2008(3) ALLMR 629
1. The original plaintiff has filed this Second Appeal challenging the concurrent dismissal of his suit for removal of encroachment and for restoration of possession. He has also challenged the reversing judgment of lower Appellate Court by which counter-claim filed by present respondent (original defendant) came to be allowed and one acre of land from possession of present appellant is directed to be handed over to the respondent. The appeal has been admitted on questions No. 2 and 10 mentioned in memo of appeal as substantial questions. Those questions are as under:
2. Whether, contents of the document can be said to have been proved, specifically when the parties are disputing the truth of what the document states specifically when the document is in handwriting of petitioner writer and who is not examined although he was available?
10. When the party who is found to suppress the original document can be allowed to rely on xerox copy thereof without production of original?
2. The parties before this Court are real brothers. The present appellant filed Regular Civil Suit No. 253 of 1986 complaining that the respondent – defendant took forcible possession of one acre of land out of Survey No. 42/6 from its Western side in the month of May 1986. He points out that in partition between brothers effected on 8-4-1971, said portion was given to him. According to respondent-defendant, two acres portion of Survey No. 42/6 was earmarked for maintenance of their mother during her lifetime and after her lifetime, it was to come to him and accordingly on the date of festival of Gudhi Padwa (Hindu New Year’s day), he was put in possession of said portion admeasuring two acres. Thereafter, the plaintiff forcibly took possession of field from him and has cultivated it. He, therefore, filed a counter-claim for restoration of said portion of one acre which, according to him, was forcibly taken back by the plaintiff from him. The trial Court dismissed the suit as also the counter-claim after noticing that partition deed dated 8-4-1971 between the brothers itself was not proved. Both the brothers then filed Regular Civil Appeals. Regular Civil Appeal filed by present appellant was registered as RCA No. 51 of 1991 while RCA filed by respondent was registered as RCA No. 46 of 1991. The learned lower appellate Court found that xerox copy of partition deed at Exh. 47 needed to be accepted. It placed reliance upon the said xerox copy as also oral evidence and hence allowed RCA No. 46 of 1991 filed by present respondent and dismissed RCA No. 51 of 1991 filed by present appellant.
3. In this background, I have heard Shri Palshikar, learned Counsel for the appellant – original plaintiff and Shri Ingle, learned Advocate for the respondent.
4. Shri Palshikar, Advocate for the appellants has contended that there were two copies of partition deed on record. One was at Exh. 38 while other was at Exh. 47. He points out that Exh. 38 is typed copy of partition deed produced by present appellant while Exh. 47 is xerox copy of partition deed produced by present respondent and there were material differences between two copies. He further points out that the trial Court has for valid reasons recorded a finding that the original of partition deed was in possession of present respondent and he did not produce it. The trial Court, therefore, did not grant his counter-claim and dismissed the same. He further contends that learned lower appellate Court has not touched this finding about custody of original partition deed at all and still has proceeded to accept and act upon Exh. 47. He further points out that the consideration of typed copy of partition deed and its xerox copy by learned lower appellate Court in para 11 is not correct and material differences in both copies are lost sight of. He further points out that if xerox copy is relied upon, property which is given absolutely to present appellant in first part is shown as given to present respondent after the death of mother. He contends that the arrangement as shown in xerox copy is improbable. He invites attention to stand of present appellant that there was no right of maintenance given to mother on any portion allotted in partition to the share of appellant – plaintiff. He, therefore, contends that xerox copy Exh. 47 was a fabricated/interpolated document and could not have been relied upon by lower appellate Court at all. He contends that therefore the counter-claim of present respondent allowed by learned lower Appellate Court needs to be rejected by setting aside said application of mind by it.
5. Shri Ingle, learned Counsel for the respondent, on the other hand, contends that partition between brothers was oral partition and the document is only a memorandum prepared later on. He points out that lower Appellate Court has found that being memorandum, it did not require registration under Section 17 of Indian Registration Act. He further contends that the oral partition is also proved on record by examining brother Kisan and said Kisan has also deposed that right of maintenance given to mother was earmarked on two acres portion of present appellant and said portion after death of mother was to devolve upon present respondent. He contends that in view of this oral evidence and position emerging on record, learned lower appellate Court has found Exh. 47 to be a true and correct copy of partition between brothers. He states that the lower Appellate Court has, therefore, proceeded to reject typed copy Exh. 38 produced by present appellant and as such no substantial question of law arises in this Second Appeal. In the alternative, he states that matter should be remanded back to lower appellate Court for fresh consideration.
6. He invites attention to grievance made in Civil Application No. 4026 of 2005 and states that during the pendency of matter, the appellant – Ganpat has proceeded to sale the land in dispute in favour of one Datta Sakharam Ghatfode. He argues that this conduct of appellant disentitles him to any relief at the hands of this Court.
7. Thus, the only question which needs consideration in this matter is whether reliance upon xerox copy of partition deed at Exh. 47 by lower appellate Court in present facts is justified or not?
8. The perusal of records reveal that Exh. 47, xerox copy of partition deed in dispute, is produced by present respondent. The learned trial Court has found that defendant also filed true copy of partition deed attested by Chief Officer of Municipal Council, Washim, on 22-11-1985. The trial Court has noticed that mother has expired on 23-9-1985 and then true copy was got certified after her death. The said typed true copy has been filed with list of documents at Exh. 27 with its one another copy in handwriting of petition writer but then respondent – defendant did not take any steps to prove this copy through petition writer. The learned trial Court has found that when such endorsement was obtained from the Chief Officer, Municipal Council, Washim, it is apparent that the original of partition deed was shown to said Chief Officer and therefore original was in custody of respondent-defendant.
9. In para 17, the trial Court has found that the original was not produced because there were additions and alterations in xerox copy at Exh. 47. This specific finding and application of mind by trial Court is not at all looked into by the lower Appellate Court. There is no finding about correctness or otherwise of this conclusion drawn by the trial Court. The lower Appellate Court has straightway proceeded to compare the documents at Exh. 38 and Exh. 47 and has commented in para 11 that except for the portion which required present appellant to give two acres of his land to respondent, both these documents were identical. In his evidence, the appellant Ganpat has stated that there was no obligation on him to earmark any portion for maintenance of mother and he stated that two acres of his portion was not reserved for that purpose. The perusal bf Exh. 38, the typed copy of alleged partition deed reveals that the obligation to maintain mother was cast only upon two brothers viz., Namdeo and Kisan. There was no such obligation upon present appellant or also upon present respondent. In said typed copy apart from this, it is also not mentioned that two acres portion of plaintiff is to go to respondent after death of mother. As there was no earmarking for maintenance of mother, the further devolution after death of mother was not necessary and therefore has not been recorded. The lower appellate Court has lost sight of these differences between the two documents.
10. In xerox copy (Exh. 47), there are two additions. By first, a right has been created on two acres portion allotted to share of appellant – plaintiff while by later, after her death, said portion has been given to present respondent. The perusal of both these documents reveal that it is a copy of document of partition dated 8-4-1971. Copy further mentions that parties have by this document effected severance and distributed properties amongst themselves and details thereof are then mentioned against the name of each brother. The finding of learned lower Appellate Court in para 13 that it is only a memorandum of partition, therefore, is not borne out either from Exh. 38 or Exh. 47. The severance of status and distribution of properties has been done only via the document i.e. partition deed. It is, therefore, apparent that registration of said document was essential.
11. In any case, the matter was not for partition but was only to find out whether the appellant was entitled to claim removal of encroachment from two acres of land which had fallen to his share in partition. There is no dispute between the parties that said two acres has fallen to share of present appellant in said partition effected on 8-4-1971. The dispute is only in relation to its devolution after death of mother. As already observed above, the mother has expired after about 14 years of execution of this document.
12. The perusal of both the copies reveal that after mentioning property allotted to share of each brother, it has been specifically recorded that his share has been satisfied. Thus, there are total five brothers as parties to this document and at the end of description of property falling to the share of each brother, such specific stipulation has been recorded. Thereafter in last para, it has been mentioned that all brothers have taken possession of their respective shares on 8-4-1971 itself. It is further mentioned in type copy (Exh. 38) that some portion of land of brother Namdeo and Kisan is reserved for maintenance of their mother. It is further recorded that after her death, the said portion will revert back to respective owner i.e. brother to whose share that property has been allotted. However, in xerox copy, such reservation for maintenance of mother is also recorded on two acres portion which has fallen to share of present appellant – Ganpat. There is a deviation from the entire scheme of document by what has been recorded in this xerox copy thereafter and on which the present respondent relies to show his entitlement. In xerox copy, it is recorded that after the expiry of mother, this two acres portion from Western side of present appellant/ plaintiff would fall to the share of present respondent. It is, therefore, clear that if this portion was to be given to Nivrutti, it could have been given to his share in substantive part of partition while describing this property. The obligation of maintenance of mother could have been recorded against that portion even by giving said portion fully to Nivrutti and it would have been in consonance with the treatment of lands given to share of other brothers viz., Namdeo and Kisan. If ultimately the land was to be given to Nivrutti, there was absolutely no justification and reason to give it to present appellant in substantive part of partition in first place. Thus, this stipulation that said portion of two acres shall fall to the share of Nivrutti after the death of mother introduced a discordant note in entire document. This comment becomes necessary because of application of mind to this document by lower Appellate Court.
13. Exh. 38 as also Exh. 47 are secondary evidence. There is no evidence on record to show that original was not available. On the contrary, the trial Court has already recorded a finding that it is in possession of respondent. The lower appellate Court has not considered this aspect at all. On the strength of oral evidence of brother Kisan, the lower Appellate Court has found the contents of Exh. 47 to be more correct and therefore for this reason only it has refused to act upon Exh. 38. However, it has overlooked provisions of Sections 65 and 66 of Indian Evidence Act. Until and unless there was a leave sought to tender secondary evidence “and leave was granted, no Secondary evidence could have been looked into. Exh. 47 being secondary evidence, could not have been looked into at all by lower Appellate Court. The logic behind the arrangement as found by learned lower Appellate Court in Exh. 47 is already considered by me above. The arrangement allegedly made in favour of present respondent does not appear to be consistent with the earlier part of the document. However, it cannot be forgotten that Exh. 47 is only a xerox copy. Whether the alleged portion is an alteration or not also cannot be conclusively decided as original document has not come on record. It is a well known fact that in the process of preparing xerox copy, there can be several manipulations and hence it is unsafe to act upon said xerox copy.
14. I, therefore, find that reason given by the learned lower Appellate Court to allow counter-claim of present respondent is non existent. The substantial question of law as formulated i.e. questions No. 2 and 10, therefore, need to be answered in favour of present appellant by holding that contents of partition deed were not at all proved by present respondent. It is also apparent that the present respondent did not point out to lower Appellate Court the finding of trial Court that original document was in his custody. In the circumstances, he suppressed the original document and tried to rely upon xerox copy for the reasons best known to him. The adverse inference, therefore, ought to have been drawn against him. As the encroachment and story in support thereof is not proved, the suit of present appellant – plaintiff has been rightly accordingly dismissed and no substantial question of law arises on that count. Thus, the judgment of lower Appellate Court insofar as it allows Regular Civil Appeal No. 46 of 1991 filed by present respondent is unsustainable and the same is accordingly quashed and set aside. Second Appeal is thus partly allowed. However, in the circumstances of the case, there shall be no order as to costs.