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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