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RCA No.107/2008
Nathhu vs. Parwatabai & ors
Presented on : 07.08.2008
Registered on : 07.08.2008
Decided on : 05.03.2020
Duration : Ys. Ms. Ds.
11 05 28
IN THE COURT OF DISTRICT JUDGE, CHANDRAPUR.
(Presided over by Mr. V.D. Kedar, District Judge2)
R.C.A.No.107/2008. Exh.No.
CNR:MHCH010005502008.
Natthu Damaji Bondhare,
Aged about 82 years, Occ. Cultivation,
R/o Vichoda (Bu.), Post. Padoli, Tah.
& Distt. Chandrapur. ...Appellant.
Versus
1. Smt. Parvatabai Baburao Mandaokar,
Aged about 81 years, Occ. Nil,
2. Purushottam Baburao Mandaokar,
Aged about 58 years, Occ. Service,
Defendants No.1 & 2 R/o Near
Shrikrishna Talkies, Bazar Ward,
Chandrapur.
3. Sau. Kiran Nagaji Hanwate,
Aged about 54 years, Occ. Nil, R/o
Babupeth Ward, Chandrapur, Tah. &
Distt. Chandrapur.
4. Pravin Padvekar,
Aged about 46 years, Occ. Business,
R/o Ekori Ward, Chandrapur, Tah. &
Distt. Chandrapur.
5. Mohan Sadashio Dongre,
Aged about 46 years, Occ. Business,
R/o Jatpura Ward, Chandrapur, Tah.
& Distt. Chandrapur.
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RCA No.107/2008
Nathhu vs. Parwatabai & ors
APPEAL UNDER SECTION 96 OF THE CODE OF
CIVIL PROCEDURE, 1908
Appearances:
Shri A.U. Kullarwar, Ld. Advocate for the appellant.
Shri V.G. Mogre, Ld. Advocate for respondents no.1 to 7.
Shri R.M. Bhagwat, Ld. Advocate for respondents no.9 & 10.
Respondent no.11 proceeded exparte.
Shri R.P. Rangari, Ld. Advocate for the respondent no.12.
J U D G M E N T
(Delivered on 05.03.2020)
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RCA No.107/2008
Nathhu vs. Parwatabai & ors
The present appeal has been preferred by the appellant
being aggrieved by the judgment and decree dated
07.07.2008, passed by the learned 2 nd Joint Civil Judge
(Junior Division), Chandrapur, in R.C.S. No.128/2004,
whereby the learned trial court dismissed the suit of the
appellant for declaration and permanent injunction.
2. The appellant is the original plaintiff. Respondents no.1
to 7 are original defendants before the learned trial court.
Respondents no.9 to 12 joined during pendency of the appeal
as they purchased suit field. (It is to be noted that, due to
mistake instead of showing them as respondents no.8 to 11,
they being shown as respondents no.9 to 12 in the clause
title). Parties are hereinafter referred to as per their original
nomenclature before the trial court.
3. In short, the facts which lead to the present appeal are
as under:
(ii) It is contention of the plaintiff that, he is the owner of
field S.No.117, which is purchased by him vide two separate
sale deeds. He further submits that, on 25.05.1968, he
purchased 3 acres of land out of Old S.No.126/2 and 7 acres
of land out of Old S.No.128. On 01.07.1970, he purchased 2
acres of land out of S.No.126/2 and 6.50 acres of land out of
S.No.128. As such he purchased total 18.50 acres of land. The
defendant no.1 is the mother of defendants no.2 and 3.
Defendants no.4 and 5 are members of national political party
and having criminal mentality.
(iii) It is submitted that, the plaintiff had taken handloan
from deceased Baburao Mandaokar. Baburao compelled him
to execute the sale deed for security of the loan amount.
They falsely got prepared document of sale deed dated
08.08.1978, in their favour. Deceased Baburao had given
threat to kill the plaintiff and taken to the office of Sub
Registrar, Chandrapur for executing the sale deed. However,
Sub Registrar refused to register the document stating that
the agricultural land is Occupancy Class II land. Thereafter,
the plaintiff returned to his village. He does not know how
defendant no.1 and her husband got registered said
document. Therefore, the document of sale deed dated
08.08.1978, being sham and bogus is not binding on him.
(iv) It is further submitted that, in the year 1983 the
Maharashtra State Electricity Board acquired some land out of
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RCA No.107/2008
Nathhu vs. Parwatabai & ors
S.No.117 and again acquired 0.12 R., land from the plaintiff.
As such plaintiff being owner remained in possession of 15.50
acres land of field S.No.117. The plaintiff is in peaceful and
continuous possession of suit property. It is further submitted
that, on 24.04.2004, defendants no.4 and 5 came on the field
of the plaintiff and threatened him of dire consequences. They
also threatened him to vacate the field S.No.117.
(v) It is to be noted that, the plaintiff by way of amendment
submitted that, he got temporary injunction on 29.06.2004.
However said order was set aside by the District Court on
31.08.2004. Therefore, defendants taking advantage of the
same dispossessed him from the suit field in the summer of
2005.
The plaintiff by way of declaration sought the relief that
defendants have no right to obstruct his possession on the suit
field S.No.117 and the alleged sale deed dated 08.08.1978 is
not binding on him. The plaintiff by way of relief of
permanent injunction prayed for restraining defendants no.4
and 5 from obstructing his possession over the suit field.
survey numbers for Thermal Power Station, Durgapur. It is
further submitted that, the defendant no.1 along with her
deceased husband purchased 2 acres of land from original
S.No.26/2 and 6.5 acres of land from Old S.No.28 i.e. total
8.5 acres from the plaintiff vide registered sale deed dated
08.08.1978, for the valuable consideration of Rs.7,811.50.
Since the day of execution of sale deed, they are in possession
of the same. Out of these 8.50 acres land, the State
Government acquired 0.61 R land for Thermal Power Station,
Durgapur. Thus, only 2.83 HRs of land remained with them.
After demise of her husband, the name of defendants no.2
and 3 along with the defendant no.1 got mutated in the
record of rights. They also got their land measured from
T.I.L.R. Office in presence of the plaintiff. They sold out
remaining 2.83 HRs. land to defendants no.6 and 7 vide
registered sale deed dated 05.08.2005. Now defendants no.6
and 7 are in possession of the same.
The defendant no.5 inspite of service of suit summons
failed to appear. Hence the matter proceeded exparte against
him.
5. In view of rival contentions of the parties, the learned
trial court framed issues vide Exh.36 on 03.01.2006.
Thereafter issues came to be recasted on 21.06.2008. Again
on 13.06.2008 additional issues came to be framed.
6. In support of his claim, the plaintiff examined himself as
(P.W.1) below Exh.58. The plaintiff got proved sale deed
dated 01.07.1970 at Exh.63, by which he had purchased
some portion of suit land from Udhao Deotale, notice
regarding acquisition of land dated 30.06.1984 at Exh.64,
notice from Land Acquisition Officer at Exh.65, 7/12 extract
of field S.No.117/1 at Exhs.66 to 69 respectively, sale deed
dated 27.05.1968 at Exh.70 by which the plaintiff purchased
remaining portion of suit field from Piddurkar Brothers and
notice from Special Land Acquisition Officer at Exh.71. The
plaintiff also examined Prabhu Puse Ramteke as (PW2) below
Exh.78 and Balaji Mohan Latari as (PW3) below Exh.79. Both
these witnesses examined by the plaintiff to prove his
possession over suit field. The plaintiff filed evidence closing
pursis at Exh.81, 111 and 113 respectively.
mutation entries at Exhs.87 and 88 respectively, Hissa Form
at Exh.89, notice issued by Special Land Acquisition Officer
dated 05.02.1985 at Exhs.90 and 91 respectively, 7/12
extracts of field S.No.117/2 and 117/1 at Exhs.92 to 100
respectively, revenue map at Exhs.101 and 102 respectively,
sale deed dated 10.08.1978 at Exh.103, sale deed dated
11.08.1978 at Exh.104, sale deed executed in favour of
defendants no.6 and 7 on 05.08.2005 at Exh.106 and 7/12
extract at Exh.107. Defendants also examined Ambadas
Maroti Jadhav as (DW2) below Exh.108. Defendants filed
evidence closing pursis at Exh.112.
8. Upon considering the pleading, oral and documentary
evidence and after hearing parties to the suit, the learned trial
court dismissed the suit vide judgment and decree dated
07.07.2008. The learned trial court recorded the findings
that, the sale deed executed by the plaintiff on 08.08.1978 in
favour of the defendant no.1 and her husband is legal and
valid document and thus binding on the plaintiff. The learned
trial court further recorded the finding that, the plaintiff
failed to prove his possession over the suit field and as such
failed to prove that defendants are obstructing to his peaceful
possession over suit field. The learned trial court further
recorded the finding that, the suit is hopelessly barred by
9
RCA No.107/2008
Nathhu vs. Parwatabai & ors
limitation and as such the plaintiff is not entitled for reliefs
claimed.
9. The plaintiff being aggrieved by the same, preferred the
present appeal. It is to be noted that, my learned predecessor
in Court set aside the judgment and decree dated 07.07.2008
passed by the learned trial court and remanded the matter to
the trial court vide order dated 05.10.2011 by holding that,
the learned trial court has not gone into the legality of the
sale deed considering that the occupancy was Class II
Occupancy and in view of the provisions of the Maharashtra
Land Revenue Code, the right to transfer Class II Occupancy
is restricted.
Being aggrieved by the judgment passed by my learned
predecessor in Court on 05.10.2011, defendants have
preferred appeal against order No.2/2012, before the High
Court of Judicature of Bombay, Nagpur Bench, Nagpur. The
Hon’ble High Court was pleased to allow the appeal of
defendants and set aside the order dated 05.10.2011. The
Hon’ble High Court remitted back the matter to this court
with direction to decide the said on its own merits in
accordance with law.
10. Thereafter, during pendency of the appeal, the plaintiff
moved an application to join respondents no.9 to 12 as a
10
RCA No.107/2008
Nathhu vs. Parwatabai & ors
party to the suit as they have purchased the suit field during
pendency of the appeal. Respondents no.9 and 10 purchased
1.31 HR area out of 2.83 HR of field S.No.117/2 vide
registered sale deed dated 21.09.2010, from one Anil
Ramteke, who is not party to the suit or the appeal.
Respondents no.11 and 12 purchased 1.52 H. R. land out of
2.83 H.R. land of field S.No.117/2.
11. Heard the learned advocate Shri A.U. Kullarwar, for the
plaintiff, Shri V.G. Mogre, for defendants no.1 to 7, Shri R.M.
Bhagwat for newly added respondents no.9 and 10 and Shri
R.P. Rangari for newly added respondent no.12. Perused the
record.
13. The learned advocate further argued that, the learned
trial court committed an error while holding that, the sale
deed dated 08.08.1978 is a valid and legal document and
thus binding on the plaintiff. The learned trial court wrongly
held that the plaintiff is not in possession of the suit field. The
learned trial court committed an error while holding that the
suit is hopelessly barred by limitation. Hence, the impugned
judgment and decree is liable to be set aside and the matter is
remanded back to the trial court to decide afresh.
15. Following points arise for my determination to which I
answered with findings thereon as under:
Points: Findings:
1. Does the plaintiff proved that he is
in possession of suit field? No.
2. Does the plaintiff prove that the
document of sale deed dated No.
08.08.1978 being sham and bogus is
not binding on him?
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Nathhu vs. Parwatabai & ors
Reasons:
As to Point no.1:
16. The plaintiff Nathhu examined himself and deposed as
per the contents of the plaint. Hence, I do not want to
reproduce the same to avoid repetition. The plaintiff to prove
his possession over the suit field examined Prabhu (PW2) and
Balaji (PW3). The plaintiff and his witnesses deposed that,
the plaintiff is in possession of the suit field.
It is to be noted that, the plaintiff during his cross
examination admitted that he filed the suit initially for
possession. The plaintiff’s witnesses Prabhu (PW2) and Balaji
(PW3) having no knowledge about the factual situation on
the spot.
17. It is to be noted that, during pendency of the suit the
plaintiff filed an application for amendment vide Exh.37 and
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Nathhu vs. Parwatabai & ors
As to points no.2 to 5:
18. All these points are arising out of same set of evidence,
hence taken for discussion together.
It is main contention of the plaintiff that, he obtained
handloan from the husband of the defendant no.1 namely
Baburao. Therefore, Baburao pressurised him to execute sale
deed of some portion of his field property in lieu of the
security of the loan amount. It is further contention of the
14
RCA No.107/2008
Nathhu vs. Parwatabai & ors
plaintiff that, the defendant no.1 and her husband themselves
prepared document of sale deed and under threat had taken
him to the Sub Registrar Office. However, the Sub Registrar
refused to execute the sale deed as the land falls within
Occupancy Class II. Thereafter he returned to his home. He
does not know how the document was got executed by the
defendant no.1 and her husband.
It is to be noted that, during crossexamination, the
plaintiff admitted that on 28.09.1977, he executed an
agreement to sell (Exh.72) in favour of the husband of the
defendant no.1. He further admits that, the sale amount was
fixed at Rs.17,000/. He had received Rs.2,500/ as an
earnest amount and remaining Rs.1500/ to be given at the
time of Diwali. On 03.05.1978, he received Rs.1500/. He
does not know whether Babarao Jadhav and Gawande were
present as witnesses over the document. He does not know
whether Chaure was Scribe of the said document. However,
one Tukaram was present at that time. He had received
Rs.4,000/ out of Rs.7881/ as mentioned in Exh.72 i.e.
agreement to sell. He further admits that Surveyor
Kumbhalkar came to measure the suit field. The measurement
map is at Exh.73. He also admits the receipt of notice issued
to defendants on 05.02.1985 for getting compensation
regarding the suit field. He does not know whether defendant
received compensation regarding 0.61 R., area out of field
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Nathhu vs. Parwatabai & ors
S.No.117/2. He further admits that when he came to know in
the year 1986 about mutation in favour of the defendant no.1
and her husband, he raised the objection. He having said
documents with him, however he did not file said documents
on the record. Defendants no.1 and her husband sold suit
field to defendants no.6 and 7 and mutation took place in
their name.
19. Now in view of above admissions given by the plaintiff,
it is seen that previously an agreement to sell (Exh.72) got
executed in between the plaintiff and Baburao on 28.09.1977.
At that time the plaintiff received earnest amount of
Rs.2,500/ and thereafter again on 03.05.1978 he received
Rs.1500/. The plaintiff suppressed all these facts from the
Court. It is to be noted that, the sale deed came to be
executed on 08.08.1978. Therefore, I do not find any
substance in the contention of the plaintiff that it is handloan
transaction. Nothing on record to show that the plaintiff at
any point of time issued notice to the defendant no.1 and her
husband thereby asked them to receive the amount of hand
loan from him. Nothing on record to suggest that the plaintiff
repaid entire amount of handloan to the defendant no.1 and
her husband. Thus, in absence of cogent evidence mere
submissions in air having no force. The entire story putforth
by the plaintiff found to be afterthought and concocted.
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RCA No.107/2008
Nathhu vs. Parwatabai & ors
20. Defendants examined Purushottam (DW1). He deposed
as per the contents of the written statement. It is to be noted
that nothing material brought in his crossexamination. This
witness specifically deposed regarding the genuine
transaction in between the plaintiff and his parents.
Defendants have examined Ambadas (DW2) to prove
the execution of sale deed dated 08.08.1978. He fully
supported to the case of defendants. He deposed that as to
how the sale deed dated 08.08.1978, came to be executed. He
deposed that though the document was written on
08.08.1978, but it was registered on 10.08.1978 before the
Sub Registrar Office, Chandrapur. At that time Baburao paid
entire amount to the plaintiff. The plaintiff put his signature
in the Registrar Office in his presence. It is to be noted that
nothing material brought during his crossexamination. This
witness did not budge single inch and stick up to his version.
Therefore, defendants duly proved the due execution of
registered sale deed dated 08.08.1978, in their favour. Hence
the sale deed dated 08.08.1978 found to be legal and valid
document.
22. It is another contention of the plaintiff that, as the suit
field falls within Occupancy Class II hence there is restriction
for its transfer in view of section 29 of the M.L.R. Code. There
is no pleading in that regard. Even otherwise upon perusal of
the sale deed dated 01.07.1970 and 27.05.1968 it reveals that
the plaintiff himself purchased Occupancy Class II land from
Deotale and Pidurkar Brothers vide Exhs.63 and 70
respectively. It is not the case of the plaintiff that he received
suit field from the Government on lease or as a grant. Thus,
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Nathhu vs. Parwatabai & ors
in my view there is no force in the submission of the plaintiff
in this regard. It is to be noted that thereafter also suit field
was sold to defendants no.6 to 12 from time to time. Thus,
plaintiff failed to prove that the document of sale deed dated
08.08.1978 being sham and bogus is not binding on him. As I
have already discussed the plaintiff failed to prove his
possession over suit field hence question of obstruction to his
possession at the hands of defendants does not arise.
Therefore plaintiff is not entitled for any reliefs claimed.
Hence, my answer to points no.2, 3 and 5 are in negative and
point no.4 is in affirmative.
As to point no.6:
23. The learned trial court rightly appreciated the
pleadings, oral and documentary evidence and recorded
correct findings regarding the fact that the plaintiff failed to
prove his possession over suit field, the plaintiff failed to
prove that the sale deed dated 08.08.1978 being sham and
bogus is not binding on him. The learned trial court rightly
held that the suit is barred by limitation. Hence, I do not find
any reason to interfere with the findings recorded by the trial
court. Hence, my answer to point no.6 is in negative.
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RCA No.107/2008
Nathhu vs. Parwatabai & ors
As to point no.7:
24. In view of above discussion, I pass the following order:
O R D E R
1. The suit is dismissed with cost.
2. Decree be drawn up accordingly.
3. R. & Ps., be sent to the learned trial court.
(Dictated and pronounced in open court)
Virendra Digitally signed by
Virendra Dattuji
Dattuji Kedar
Date: 2020.03.06
Kedar 16:52:08 +0530
(V.D. Kedar)
District Judge2,
Date : 05.03.2020. Chandrapur.