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Judgments of Supreme Court of India and High Courts

Baban Maruti Patil vs Sajakka Maruti Patil And Others on 26 September, 2018

905 – SAST. 21534-18.doc

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

SECOND APPEAL (St.) No. 21534 OF 2018
WITH
CIVIL APPLICATION No. 1268 OF 2018

Baban Maruti Patil … Appellant
Vs.
Sajakka Maruti Patil Ors. … Respondents

***
Mr. Bhushan Walimbe, for the Appellant.
***
CORAM : A. M. DHAVALE, J.
DATE : SEPTEMBER 26, 2018
PC :-

1. Learned advocate for the Appellant undertakes to

remove the office objection.

2. Heard the learned advocate for the Appellant.

Plaintiff No. 1 Mrs. Sajakka is mother of plaintiff No. 2 Manisha

and plaintiff No. 3 Kondubai and defendant No. 1 Baban is

adopted son of plaintiff No. 1. The subject matters of the suit

are the three agriculture lands of 52 R (Survey No. 63/8), 37R

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(Survey No. 71/2), 5R (Survey No. 63/3) and house property

City Survey No. 1661 admeasuring 208.9 sq. mtrs., situated at

Urun – Islampur. Those belonged to deceased Maruti, husband

of plaintiff No. 1 and father of plaintiff Nos. 2 and 3. Maruti

died in 1970 and thereafter in 1975 plaintiff No. 1 adopted

Baban (defendant No. 1) by a registered adoption deed. She

claimed that defendant No. 1 started obstructing her lawful

possession over the ancestral land and executed a hollow, bogus

and sham registered sale-deed in respect of 2 other lands

bearing City Survey No. 1653, 1635. The plaintiffs, therefore,

claimed perpetual injunction against defendant No. 1 and

alternatively claimed partition and separate possession. The

plaintiffs also claimed Rs. 22,000/- out of Rs. 75,000/-, earned

by defendant No. 1 by sell of sugarcane, grown in the suit field.

3. Defendant No. 1 Baban resisted the suit. He

contended that the suit properties were ancestral properties and

his adoption relates back to the date of death of his father. His

mother – plaintiff No. 1 herself mutated his name in the revenue

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records and he is in joint possession alongwith her in respect of

the suit property. He is cultivating sugarcane, jawar and other

crops in the suit field. It was plaintiff No. 1 alongwith other two

plaintiffs, who sold land City Survey No. 1653, 1635. Defendant

No. 1 claimed that his name was recorded in 7-12 extract and he

had mortgaged the suit properties. No perpetual injunction can

be claimed against him.

4. Other defendants, though served, failed to appear

and contest the suit, viz. Regular Civil Suit No. 227 of 1996 filed

by the plaintiff.

5. Learned trial court held that the plaintiffs were in

lawful possession; defendant No. 1 was obstructing their

possession; the suit was not hit by non-inclusion of other

properties; the sale-transaction of fields City Survey No. 1653

and City Survey No.1635 were valid; defendant No. 1 has no

vested interest in the suit property by way of adoption.

Consistent with these findings, he decreed the suit partly with

costs and restrained the defendant from obstructing lawful

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possession of the plaintiff over the suit properties. Besides,

defendant No. 1 was directed to pay Rs.22,000/- to the

plaintiffs.

6. This judgment was assailed before the District Court

(District Court-1, Islampur) in Regular Civil Appeal No. 51 of

2012 wherein it is held that interest in the suit was vested in the

plaintiffs on death of Maruti and it won’t divest due to

subsequent adoption. Therefore, appeal came to be dismissed

with costs.

7. The learned advocate for the Appellant, initially,

argued that there is consistent case law of the Apex Court that

adoption relates back to the date of death of deceased and there

would be joint family of plaintiffs and defendant No. 1 and they

would have equal shares. Admittedly, the suit property was

ancestral property and defendant No. 1 was put in possession by

plaintiff No. 1 alongwith her. Subsequently, he conceded that in

view of Full Bench Judgment of this Court in Kesharbai Gujar

Vs. The State of Maharashtra Ors. 1 on enactment of
1 AIR 1981 Bombay 115

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Amendment to Hindu Adoption and Maintenance Act (78 of

1956), the position has changed and if a widow and daughter

get interest vested in them on the death of common ancestor, it

will not be divested by the subsequent adoption.

8. He argued two points, viz. (a) there was joint

possession of the plaintiffs and defendant No. 1, and plaintiffs

cannot dispossess defendant No. 1 without following due

process of law; (b) plaintiff No. 1 had approached the revenue

authority and mutated name of defendant No. 1 alongwith her

in the revenue record, and thereby she has put the suit

properties in the name of joint family. She has also admitted

that the suit properties were ancestral properties and she had

claimed partition and separate possession. In the light of these

facts, both the courts below have passed the judgment against

defendant No. 1.

9. It is not disputed that the subsequent adoption of

1975 will not divest the plaintiffs of their shares receivable by

them on the death of common ancestor Maruti in 1970.

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Therefore, initial defence of defendant No. 1 no more survives.

As far as joint possession is concerned, defendant No. 1 is

adopted son of plaintiff No. 1. If he is residing with her, his

name is shown in revenue record alongwith her, but he cannot

be said to be in joint possession with plaintiffs. As held in

Maria Margarida Sequeria Fernandes and Ors. v. Erasmo

Jack de Sequeria (Dead) through L.Rs. 2, even long standing

possession of relative, servant or agent is no possession in the

eyes of law and by such long standing possession, he does not

get any right. The true owner can claim injunction against such

person and he gets no protection. In this situation, the order of

perpetual injunction passed by both the courts below against

defendant No. 1 is not contrary to the provisions of law and

cannot be interfered with. No substantial question is in raised in

this regard.

10. The learned advocate for the Appellant relying on

the mutation entry effected by plaintiff No. 1 argued that

plaintiff No. 1 on her own, transferred her property in the name
2 (2012) 3 SCALE 550 : 2012 AIR SCW 2162 : AIR 2012 SC 1727

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of joint family of herself and defendant No. 1 and she had also

claimed partition by saying that suit properties were ancestral

properties. It is no doubt true that properties were shown to be

ancestral, but on the death of Maruti, plaintiff Nos. 1, 2 and 3

got 1/3rd shares each, which became their self-acquired

properties. The properties no more remained ancestral

properties. The argument that the said properties were

transferred by plaintiff No. 1 to the joint family, has no

substance as the said case has not been pleaded at all. As held

in Sayed Muhammed Mashur Kunhi Koya Thangal vs.

Badagara Jumayath Palli Dharas Committee and Ors. 3 and

Shivaji Balaram Haibatti vs. Avinash Maruthi Pawar4,no

substantial question of law can be framed in absence of any

pleadings.

11. The submissions made by the learned advocate for

the Appellant herein for the first time are substantially different

in nature from the right claimed by defendant No. 1 on the basis

3 (2004) 7 SCC 708
4 (2018) 11 SCC 652

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of adoption. In the absence of specific pleadings and

opportunity for the party to lead evidence, such plea cannot be

entertained for the first time in this second appeal. Thus, no

substantial question of law can be framed and the second appeal

deserves to be dismissed in limine.

12. However, it is on record that defendant No. 1 Baban

was in joint possession and was cultivating the lands. In the

circumstances, if there is a standing crop, he should be

permitted to take away the same subject to paying 50% of the

price of the produce to the land owner, plaintiff No. 1. Hence,

the following order.

ORDER

(i) The second appeal is dismissed in limine.

(ii) However, defendant No. 1 is permitted to look after
the existing standing crop and harvest the same only
this year, subject to condition that he shall pay 50%
of the income derived from sale of such produce to
the land owner – plaintiff No. 1. He shall file an
undertaking to the effect for enjoying the benefit of
this order till the harvest of presently standing crop

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only.

(iii) If defendant No. 1 files a suit for partition, it shall be
decided on its own merits. The parties are at liberty
to take appropriate defences.

(iv) Pending civil application filed in this second appeal
does not survive and is accordingly disposed of.

Sd/-

[A. M. DHAVALE, J.]
Vinayak Halemath

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