DAMODHAR NARAYAN SAWALE (D) THROUGH LRS versus SHRI TEJRAO BAJIRAO MHASKE & ORS

DAMODHAR NARAYAN SAWALE (D) THROUGH LRS versus SHRI TEJRAO BAJIRAO MHASKE & ORS

The High Court erred in holding sale(s) void under the Fragmentation Act and in entertaining issues that were not properly raised in the plaint or as a lawful counter-claim; Ext.128 was a registered sale deed whose execution and registration were admitted and, on the record and proper appreciation of evidence and legal principles (including presumption from registration and limits on counter-claims), the First Appellate Court was correct to decree possession on the strength of Ext.128; the High Court judgment setting aside that decree was set aside and the First Appellate Court's decree restored.

Parties
Appellant / Plaintiff (original): Damodhar Narayan Sawale (D) through LRs; Respondents / Defendants (original): Shri Tejrao Bajirao Mhaske & Ors.
Jurisdiction
India
Judgment Date
04 May 2023
Procedural Posture
Civil Appeal Under Article 136 of the Constitution of India / Appeal From High Court Judgment in Second Appeal No.435 of 1995 (challenging Restoration of Trial Court Decree)
Outcome
Appeal allowed; High Court judgment set aside and First Appellate Court judgment restored
Legal Topics
Applicability of Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, Validity and Effect of Registered Sale Deed (ext.128), Counter Claim Rules Under Order VIII Rule 6 a, CPC, Jurisdictional Bar and Reference Procedure Under Sections 36 a and 36 B of the Fragmentation Act, Presumption From Registration and Parole Evidence Under Evidence Act
Property Law Land Law Civil Procedure Evidence Law Applicability of Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 Validity and Effect of Registered Sale Deed (ext.128) Counter Claim Rules Under Order VIII Rule 6 A, CPC Jurisdictional Bar and Reference Procedure Under Sections 36 a and 36 B of the Fragmentation Act +1 more

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Parties

Damodhar Narayan Sawale (D) through LRs

Appellant / Plaintiff (original)

Shri Tejrao Bajirao Mhaske & Ors.

Respondents / Defendants (original)

Procedural Posture

Civil Appeal Under Article 136 of the Constitution of India / Appeal From High Court Judgment in Second Appeal No.435 of 1995 (challenging Restoration of Trial Court Decree)

Legal Issues

  1. 1 Whether plaintiff entitled to decree of possession on basis of registered sale deed dated 21.04.1979 (Ext.128)
  2. 2 Whether Ext.128 was a sham/nominal document executed as collateral security for a money-lending transaction
  3. 3 Whether provisions of the Maharashtra Fragmentation Act applied to render the sale(s) void and whether Civil Court had jurisdiction to decide such issues

Ratio Decidendi

The High Court erred in holding sale(s) void under the Fragmentation Act and in entertaining issues that were not properly raised in the plaint or as a lawful counter-claim; Ext.128 was a registered sale deed whose execution and registration were admitted and, on the record and proper appreciation of evidence and legal principles (including presumption from registration and limits on counter-claims), the First Appellate Court was correct to decree possession on the strength of Ext.128; the High Court judgment setting aside that decree was set aside and the First Appellate Court's decree restored.

Court Disposition

Appeal allowed; High Court judgment set aside and First Appellate Court judgment restored

Orders

  • Appeal allowed with costs
  • Judgment and final order dated 30.10.2015 in Second Appeal No.435 of 1995 of the High Court of Judicature at Bombay, Nagpur Bench, set aside