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TAIBAI V/S SHANTABAI & OTHERS, decided on Friday, August 4, 2017.
[ In the High Court of Bombay (Nagpur Bench), Second Appeal No. 208 of 2000. ] 04/08/2017
Judge(s) : A.S. CHANDURKAR
Advocate(s) : A.M. Ghare. R1 to R10, B.N. Mohta.
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  VAIJAYANTABAI W/O KERU GANGARDE VERSUS KERU ANANT GANGARDE, SINCE DECEASED BY HIS HEIRS ,   19/02/1991.  




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    Oral Judgment:1. This appeal under Section 100 of the Code of Civil Procedure 1908 has been preferred by the original defendant who is aggrieved by the judgment of the appellate Court decreeing the suit for possession in favour of the original plaintiff.2. The facts in brief are that field Survey No.98 was the subject matter of the proceedings before the tenancy authorities. On 581968 in those proceedings a purchase certificate for the entire Survey number admeasuring 29 acres 26 gunthas came to be issued in the name of Ramrao and his three brothers namely Shamrao Bhauro and Babarao. Thereafter each brother equally received 7 acres 17 gunthas land each. According to Ramrao the husband of the daughter of Babarao – Taibai was a Patwari and at his intervention said Taibai had started claiming right in 97R land from Survey No.98/2 which was allotted to Ramrao. According to him there were proceedings under Section 145 of the Code of Criminal Procedure 1973 between them on account of disputes with regard to possession. Said Taibai had also initiated revenue proceedings under the Mamaltdar’s Courts Act 1908. Ramrao accordingly on 2271987 filed suit initially for a declaration that Taibai had no legal right to disturb his possession. By amending the suit possession of 97R land was also sought from the defendant.3. In the written statement filed by the defendant it was not disputed that each of the four brothers had received 7 acres 17 gunthas land from Survey No.98. According to her the plaintiff Ramrao in the year 1980 proposed an arrangement whereby he offered the defendant land admeasuring 2 acres 16 gunthas from Survey No.98/2 along with cash amount of Rs.5000/- and in exchange the plaintiff was given 36 gunthas of land from Survey No.125/1 which was fertile land. The parties were accordingly put in possession of the respective properties. As the defendant apprehended disturbance to her possession she had initiated the revenue proceedings. According to her the plaintiff accepted this arrangement and having accepted the amount of Rs.5000/had acted upon the mutual exchange. It was therefore prayed that the parties were in possession as per oral arrangement/exchange and hence the suit was liable to be dismissed.4. After the parties led evidence the trial Court recorded a finding that in the year 1980 there was an oral arrangement between the parties and pursuant thereto they were cultivating their lands as agreed. The trial Court therefore dismissed the suit. The appellate Court held that the plaintiff being the recorded owner of the suit property he was entitled to possession. The theory of oral exchange was disbelieved. After allowing the appeal suit came to be decreed.5. While admitting the appeal the following substantial questions of law came to be formulated:(1) Whether the learned Judges below erred in law in not framing a vital and important issue which goes to the root of the matter i.e. “whether the plaintiff proved that the so called partition of F.S. No.98 of the mouza Chandikapur admeasuring 24 acres and 26 gunthas between him and his brothers was invalid as said partition was hit by the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act?(2) Whether the learned Lower Appellate Court committed a serious error in law in rejecting the contention of the appellant that the respondent/plff cannot claim exclusive ownership or title over suit field as the alleged partition is invalid as the same is contrary to provisions of Section 57 of the Bombay Tenancy & Agricultural Lands Act on the ground that the word “Partition” has been deleted in the year 1982 from the Section 57 of the said Act without appreciating the evidence and without giving any finding as to whether the alleged partition has taken place prior to 1982 or after 1982 and giving a perverse finding that suit is filed after July 1987 since would be governed by amended provisions?(3) Whether the learned Lower Appellate Judge erred in law in completely overlooking and not considering the vital unrebutted evidence from the deposition of the power of attorney holder of the applicant i.e. Shri Nagorao Dholmare?6. After hearing the learned Counsel for the parties an additional substantial question of law was framed which reads thus:(4) “Whether the plaintiffs are estopped from seeking the relief of declaration of title and possession in view of the mutual exchange of lands with the defendant which exchange was acted upon?”The learned Counsel for the parties were thereafter heard on all the substantial questions of law. With their assistance I have also perused the records of the case.7. Shri A. M. Ghare learned Counsel for the appellant submitted that the partition between the plaintiff and his brothers was invalid in view of provisions of Section 57 of the Maharashtra Tenancy and Agricultural Lands Act 1958 (for short the said Act). According to him in absence of any prior consent of the Collector such partition was invalid in law and it gave no right to the plaintiffs to seek possession. He submitted that the appellate Court erred in holding that as the suit was filed after July 1987 the matter would be governed by the amended provisions of Section 57 of the said Act. It was then submitted that the plaintiff having accepted the oral arrangement/exchange of his field with that of the defendant's field he was estopped from seeking possession of the suit property. It was necessary that such exchange ought to have been reduced to writing and the oral arrangement/exchange by itself did not give any right to the plaintiffs to seek possession. In the alternate and without prejudice to his above submissions it was urged that the plaintiff was estopped from going behind the oral exchange of lands. He referred to the evidence on record to urge that the same indicated that both the parties had acted upon this mutual arrangement and therefore the plaintiff was now precluded from going back on the same. The plaintiff could not take advantage of the absence of any written document. According to him the doctrine of “pari delicto” would apply to the facts of the case inasmuch as both the parties were responsible for not having the mutual arrangement reduced into writing and therefore in such situation the Court would not assist either of the parties. In that regard he placed reliance on the decisions in V. S. Rahi vs. Ram Chambeli (1984) 1 SCC 612 Mohd. Salimuddin vs. Misri Lal (1986) 2 SCC 378 and Virender Singh v. Laxmi Narain and another 2007 Cr.L.J. 2262. It was then submitted that on the doctrine of equitable estoppel the plaintiffs were not entitled for possession. For said purpose he referred to the decision of the Hon’ble Supreme Court in M/s Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and others (1979) 2 SCC 409. It was therefore submitted that the suit was liable to be dismissed.8. Shri B. N. Mohta learned Counsel for the respondents supported the impugned judgment. According to him by virtue of amendment to the provisions of Section 57 of the said Act the partition between the parties was legal and valid as it had been carried out prior to the amendment. Such partition was not barred by provisions of Section 57 of the said Act. It was then submitted that the plaintiff had filed the suit for possession on the basis of title. The stand that there was an oral arrangement between the parties for exchange of the lands could not be accepted in view of the provisions of Section 118 of the Transfer of Property Act 1882. According to him such exchange in absence of any writing could not be acted upon. Even the evidence on record did not support the defence as sought to be raised by the defendant that the oral exchange was acted upon. The husband of the defendant was a Patwari and at his instance the defendant had initiated proceedings before the revenue authorities. According to him there could not be any estoppel against statute and the plaintiff having title to the suit property was entitled to his land. In that regard he placed reliance on the decisions in State of U.P. vs. M/s Manchar and Co. Bareilly AIR 1971 SC 2131 Ram Naresh and anr. Vs. Ganesh Mistr AIR 1952 All 680 and R. S. Maddanappa vs. Chandramma AIR 1965 SC 1812. He therefore submitted that the appellate Court rightly found that the plaintiff was entitled for possession on the basis of his title. The learned Counsel also placed reliance on the decisions in Parma Nand v. Champa S. Lal and others AIR 1956 Allahabad 225 Ramkripal Sheoprasad and others v. Municipal Committee Bilaspur AIR 1963 MP 240 and urged that the appeal was liable to be dismissed.9.The plaintiff examined the son of Ramrao – Wasudeo at Exhibit96. He deposed that after partition amongst the four brothers his father got his share of land admeasuring 7 acres 17 gunthas. He deposed that till the month of July 198687 his father had cultivated the field after which the defendant took forcible possession of 97 gunthas land from the southern side. He referred to the revenue records to indicate possession from 1980 onwards till 198687. He denied that 36R land from Survey No.125(1) was given in exchange to his father. The defendant was in possession of 36 R land from Survey No.125/1. In his crossexamination he admitted that the revenue records of field Survey No.125/1 indicated the name of his father – Ramrao for the year 19861987 till 199091. After the death of his father the name of his brother Nilkanth and others was shown. He could not give any reason as to how the name of his father and his brother was shown in the revenue records of field Survey No.125/1. Another witness examined was Uttam Wankhede at Exhibit115. The defendant examined her husband Nagorao at Exhibit147. He stated that the field Survey No.98/2 had come to the share of the defendant in the mutual exchange. 36 gunthas land from Survey No.125 and Rs.5000/were paid to Ramrao in exchange of land admeasuring 2 acres 16 gunthas from Survey no.98/2. An amount of Rs.5000/- was given as Ramrao’s daughter was to get married. He referred to the revenue extracts at Exhibit151 to 158 with regard to Survey No.125 to show the possession of Ramrao and his sons. He stated that land admesuring 36 R was in possession of Ramrao and his sons. In his cross-examination he admitted that the revenue entries from 1980 to 1985 in respect of field Survey no.125/1 were in the name of the defendant. The exchange was not registered. The defendant also examined other witnesses including DW4 at Exhibit178 who had witnessed acceptance of Rs.5000/- by Ramrao.As to substantial question nos.1 and 2.10. In so far as provisions of Section 57 of the said Act are concerned they place a restriction on the transfer of land which is purchased by a tenant under provisions of that Act. Initially transfer by way of sale gift exchange mortgage lease assignment or partition without the previous sanction of the Collector was not permissible. However by Maharashtra Act No.5 of 1982 the words “or partition” were deemed always to have been deleted. The effect of this amendment is that since inception transfer of land purchased by a tenant by way of partition was not barred. In the light of this legal position the learned counsel for the appellant rightly did not further urge substantial question of law at Sr. Nos.1 & 2 as framed. In that view of the matter the partition between four brothers of Survey No.98 was therefore not illegal. It is thus not necessary to further consider aforesaid substantial questions of law.As to substantial question nos. 3 and 4.11. According to the defendant there was mutual exchange of lands between the plaintiff and herself. This arrangement however was not documented. While considering this aspect of mutual exchange of lands it would be necessary to refer to the law laid down as regards family settlement between family members. In Kale and others vs. Dy. Director of Consolidation and others AIR 1976 SC 807 the Hon’ble Supreme Court in para 44 has held as under:“44.................................................................. .................The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could not be used for a collateral purpose namely for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement....................................................... ............”It was observed that even if a family settlement was not registered it would operate as a complete estoppel against the parties who have acted upon the same. A party who has taken advantage under the family arrangement is precluded from challenging the same.12. Since the defendant seeks to rely upon the oral exchange of her land with the plaintiff it is necessary to consider the evidence on record in respect of exchange of lands. The defendant examined her husband at Exhibit-147. He deposed that the defendant had succeeded to field Survey No.125 with regard to 36 gunthas land. As per the oral exchange this piece of land and Rs.5000/were given to Ramrao and in exchange he handed over possession of 2 acres 16 gunthas land from Survey No.98/2. No permission in that regard was taken from any revenue authority nor were the terms of exchange got written down. Amount of Rs.5000/was given to the plaintiff in 1987. This amount was given in the presence of one Atmaram Lawad who has been examined below Exhibit 178. To demonstrate that Ramrao and his sons were cultivating 36 gunthas land from Survey No.125 the 7/12 extracts at Exhibit 151 to 158 were placed on record. To show the defendant's possession of 2 acres 16 gunthas land from Survey No.98/2 the 7/12 extracts at Exh50 and 160 were placed on record. The said witness referred to the proceedings before the Tahsil Office as well as in the Mamalatdar Court. He therefore deposed that both parties had acted on the oral exchange and they were in possession of the exchanged lands. After the death of Ramrao his legal heirs were in possession of Survey No.125/1. In his cross examination he denied various suggestions made and admitted that he did not seek correction of the revenue records from 1980 to 1985. Other witnesses examined by the defendants were to show the possession of the defendant of field Survey No.98/2.13. The plaintiffs' witness was his son and according to him the defendant had taken forcible possession of 2 acres 16 gunthas land. In his cross examination he admitted that from the year 198687 till 199091 the crop statement of field Survey No.125/1 was in the name of his father Ramrao and after the death of Ramrao the names of his sons were entered. He could not give any reason as to why the names of Ramrao and his sons were shown in the crop statement of field Survey No.125/1.14. The evidence on record thus indicates that after the alleged oral exchange the parties thereto came in possession of the exchanged lands. If the defendant had succeeded to Survey No.125/1 in her own right there was no reason for the names of Ramrao and after his death the names of his sons being reflected as being in possession thereof and no explanation in that regard could be furnished by the plaintiff. Similarly the defendant could show her possession in respect of the exchanged portion of land from Survey No.98/2. She also initiated proceedings before the revenue authorities to protect her possession. It is on the appreciation of this evidence that the trial Court disbelieved the case of the plaintiff and dismissed the suit. The stand of the defendant with regard to the oral exchange was accepted. The first appellate Court however disbelieved this evidence on the ground that the exchange was not supported by any document. It was held to be not permissible under Section 118 of the said Act.15. In the revenue proceedings initiated by the defendant the Circle Inspector after inspection on 541986 reported that the defendant was in possession of 2 acres 16 gunthas land from Survey Nos.97 and 98/2. This is clear from the order dated 31101986 (Exhibit161) passed by the Tahsildar Akot. The proceedings were concluded prior to the filing of the suit as the suit was filed on 2371987. Similarly on 17-7-1987 the Tahsildar Akot injuncted the plaintiff from obstructing the possession of the defendant in respect of the suit land as she was found in possession thereof (Exhibit-165). These proceedings clearly indicate the defendant's possession over the suit land even prior to filing of the suit and substantiate her defence that this oral exchange had been acted upon as she was put in possession of Survey No.98/2 on that basis. It is also necessary to refer to the order dated 3091988 (Exhibit-163) passed by the Mamlatdar in proceedings initiated by the defendant prior to filing of the present suit. The Mamlatdar after referring to the oral statement of Ramrao dated 3-6-1986 in proceedings before the Magistrate that there was a mutual exchange of lands in the year 1980 restrained the present plaintiff from disturbing the defendant's possession of the suit property under Section 5 of the Mamlatdar Courts Act 1904. Even in proceedings under Section 145 of the Code of Criminal Procedure 1973 that were initiated before filing of the suit the Sub – Divisional Magistrate Akot on 961988 (Exhibit-162) recorded the defendant's possession of the suit property. Hence there is sufficient material on record to indicate that the parties were put in possession of the exchanged lands and that it was the plaintiff who was seeking to resile from this oral exchange.16. I find that the observations of the Hon'ble Supreme Court in Kale and others (supra) apply to the facts of the present case. An oral family arrangement between family members is recognized. Such family arrangement has been held to be binding on the parties and would operate as an estoppel by preventing the parties after having taken advantage under such arrangement to resile from the same and attempt to revoke it. This is exactly the situation that has arisen in the case in hand. The plaintiff having been put possession of 36 gunthas of land from Survey No.125/1 is now seeking possession of land admeasuring 2 acres 16 gunthas from Survey No.98/2 that was exchanged and given to the defendant. In the light of this factual position on record and the law as laid down in Kale and others (supra) the decisions relied upon by the learned Counsel for the respondents cannot be made applicable to the facts of the present case. Though there cannot be estoppel against law the position with regard to family arrangements stand on a different pedestal. Courts lean in favour of such family arrangements that are acted upon and are slow in unsettling the same merely on the ground of absence of documentation and subsequent registration. I find that the plaintiff is therefore estopped from seeking possession of the exchanged land having accepted the oral arrangement. The provisions of Section 118 of the Transfer of Property Act 1882 would therefore not preclude the defendant from continuing in possession of the exchanged land. The appellate Court committed an error while decreeing the suit after setting aside the judgment of the trial Court. The relevant material indicating acceptance of the family arrangement prior to filing of the suit has been unnecessarily discarded. The effect of the decree passed by the appellate Court if maintained would be that the plaintiff would be entitled not only to continue with possession of 36 gunthas land from Survey No.125/1 but would also get possession of the exchanged land from Survey No.98/2.17. Accordingly substantial question nos. 3 and 4 are answered by holding that the plaintiffs are estopped from seeking the relief of declaration of title and possession in view of the mutual exchange of lands that was acted upon. As a result the judgment dated 11-7-2000 in Regular Civil Appeal No.119/1995 is quashed and set aside and judgment of the trial Court in Regular Civil Suit No.239/2017 dated 2941995 stands restored. The second appeal is accordingly allowed with no order as to costs.