GOPAL JAINARAYAN KARWA Vs. KAWADU DATTU MOHITKAR

JUDGEMENT

(1.) This Second Appeal is directed against the impugned judgment and order dated 19.9.1998 passed in Regular Civil Appeal No. 136/1994 by learned 2nd Additional District Judge, Wardha, whereby the appeal was dismissed.

(2.) Earlier, the plaintiff had instituted Regular Civil Suit No.115/1981 on 7th April,1981, which was dismissed by learned Civil Judge, Junior Division, Hinghanghat, by judgment and order dated 7th May, 1994.

(3.) In the present case, the possession receipt and possession warrant which were at Exhs. 37 and 36 in the trial Court, no doubt carried presumptive value of their genuineness. As against this documentary evidence in the facts and circumstances, there was no evidence contrary of any registered sale deed that defendant had purchased 2 acres from of land from original owner Vasudeo Bokilwar; Exh.56 was merely an agreement to sell "Isarpatra" immovable property admeasuring 2 acres which appears to have been executed on 23rd May, 1967. IN respect of that agreement to sell no suit was filed for specific performance. It was further alleged by the defendant that one acre of land was sold in addition to the defendant; but no documentary evidence of transfer of immovable property was produced or relied upon in support of the title; since any immovable property worth Rs. 100/- or more, can only be obtained on the basis of registered transfer. Learned counsel for appellant contended that there was not even pleading regarding one acre of land allegedly acquired subsequent to the Isarpatra The impugned judgment and order by the first Appellate Court as also the Trial Court did not, therefore, exhibit conscious application of mind to record sound and well-reasoned findings on all the issues arising between the parties. Normally, the High Court will not be justified in interfering with the concurrent findings of fact even if they are erroneous. However justice has to be done in accordance with clear and express provisions of law. When conclusions for the Courts below appeared erroneous, contrary to law or appears based on inadmissible evidence or passed in ignorance of material evidence, there has to be interference in the interest of justice even at the stage of Second Appeal. The substantial question of law which has been raised and quoted hereinabove, on behalf of the appellant, therefore, has to be answered in the affirmative, particularly when the chronology of facts indicate that the plaintiff had succeeded in Regular Civil Suit No. 241/1973 which was decreed by the learned Civil Judge J.D. Hinghanghat on 26.2.1975, pursuant to which in execution of the said final decree, the plaintiff regained possession of the suit property under possession warrant Exh. 36 and possession receipt Exh. 37 from the Bailiff of the Court, particularly when registered sale deed dated 14.3.1970 also borne thumb impression of the Dattu Mohitkar as witness to the registered sale deed executed by Vasudeo Bokilwar, which is Exh.4 in the trial Court. This material fact appears to have been overlooked by the trial Court as well as the first Appellate Court. Therefore, the conclusions of both the Court below were not only erroneous but contrary to law and were based on inadmissible evidence, such as Isarpatra while both the Courts below ignored the material evidence in the case. That being so the substantial question of law is answered in favour of the appellant. IN the result, therefore, the judgment and order dated 19.9.1998 passed by learned 2nd Additional District Judge Wardha in RCA No. 136/1994 arising out of judgment and order in RCS No.115/81 dated 7.10.1994 are set aside. The suit is decreed. The plaintiff shall be placed in actual physical possession of suit property i.e. 3 acres of land of eastern portion described in the plaint and acquired under registered sale deed dated 14.3.1970 (Exh.4). The plaintiff shall be reinstated in possession of the suit land and defendant be restrained permanently from disturbing possession of the said land. The decree be executed in terms of Prayer clauses (a) and (b) of the plaint. The Appeal is allowed accordingly.