As per case facts, the original plaintiff challenged lower court judgments dismissing his suit for title and possession of agricultural land. The dispute stemmed from historical land transactions and Tagai ...
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4-sa-234-2002.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 234 OF 2002
Rangnath Shivram Medankar ]
(since deceased), Residing at Chakan ]
(Modankar Vasti) Taluka: Khed, ]
District- Pune. ]
1a) Dattatray Rangnath Medankar ]
R/at: Chakan (Medankar Vasti) ]
Tal: Khed, District Pune. ]
1b) Subhash Rangnath Medankar ]
R/at: Chakan (Medankar Vasti) ]
Tal: Khed, District Pune. ]
1c) Laxman Rangnath Medankar ]
R/at: Chakan (Medankar Vasti) ]
Tal: Khed, District Pune. ]
1d) Vilas Rangnath Medankar ]
R/at: Chakan (Medankar Vasti) ]
Tal: Khed, District Pune. ]
1e) Sushila Abasaheb Murhe ]
R/at: Post Kurali(Murhe Wasti) ]
Tal: Khed, District Pune. ] … Appellant
(Orig. Plaintiff)
V/s.
Maruti Dyanoba Medankar, ]
Residing at Chakan(Medankar Vasti), ]
Taluka: Khed, District : Pune. ] … Respondent
(Orig. Defendant)
WITH
INTERIM APPLICATION NO. 14691 OF 2023
IN
SECOND APPEAL NO. 234 OF 2002
1) Rangnath Shivram Medankar ]
since deceased through legal heirs ]… Applicants
IN THE MATTER BETWEEN
Rangnath Shivram Medankar ]
(since deceased) through Legal Heirs ] … Appellant
V/s.
Maruti Dyanoba Medankar, ] … Respondent
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varsha
VARSHA
VIJAY
RAJGURU
Digitally
signed by
VARSHA
VIJAY
RAJGURU
Date:
2026.06.08
18:25:20
+0530
4-sa-234-2002.doc
Mr. Drupad S. Patil a/w. Mr. Namitkumar S. Pansare for the Appellant.
Mr. Hemant Ghadigaonkar a/w. Mr. Sandesh More, Mr. Satish Aher,
Mr. Hitendra Gandhi, Mr. Om. Gandhi, Mr. Akash Jawale for the
Respondent.
CORAM : GAURI GODSE, J.
RESERVED ON : 5
th
FEBRUARY 2026
PRONOUNCED ON : 8
th
JUNE 2026
JUDGMENT:
1) This second appeal is preferred by the original plaintiff to
challenge the concurrent judgments and decrees dismissing his suit.
During the pendency of this appeal, the original plaintiff expired, and
his heirs and legal representatives have been brought on record as
appellants. The plaintiff filed the suit seeking a declaration that the
defendant has no right, title or interest of whatsoever nature in the
suit property. The plaintiff prayed for a further declaration that, based
on Mutation Entry No. 4251, dated 15
th
May 1992 (“ME No. 4251”) the
defendant was not entitled to obstruct the plaintiff’s possession as
owner of the suit property. The plaintiff also prayed for an injunction
restraining the defendant from obstructing his possession of the suit
property.
2) The Interim Application seeks permission to produce
documents on the record as additional evidence. Since the additional
documents are copies of subsequent orders passed by the revenue
authorities, there was no opposition to relying on and referring to
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them. Hence, the photocopies annexed to the Interim Application
were permitted to be referred to and relied upon to the extent of
examining their effect on the prayers in the suit and whether they can
be permitted to be produced on record as additional evidence.
3) The second appeal is admitted by framing a substantial
question of law vide order dated 24
th
November 2005, which reads as
under:-
“Heard. Admit. In view of Exhs 65 and 66 the finding given
by Court below is perverse or correct?”
PLEADINGS IN THE PLAINT:
4) The suit is filed in respect of the agricultural land bearing
Survey No. 178/2A and Survey No. 178/2B, which originally was
Survey No. 178/2. The said survey number is allotted Gat No. 952 for
a total area of 73 Ares (“suit property”). The suit property was
originally owned by the defendant’s grandfather, that is, Mahadu
Jijaba Medankar (“Mahadu”). Out of the suit property, Survey No.
178/2A, admeasuring 36.5 gunthas, was purchased by the plaintiff's
grandfather, that is, Krishna Bholu Medankar (“Krishna”), from
Mahadu, and since then, he was cultivating it as the owner.
Thereafter, the plaintiff’s father (“Shivram”) was cultivating it, and
thereafter the plaintiff is cultivating the same. Similarly, Survey No.
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178/2B was given to Krishna by Mahadu for cultivation in 1946, and
the said land is also in possession of the plaintiff. Thus, the suit
property was always in the possession and cultivation of the plaintiff’s
grandfather, Krishna, then of the plaintiff’s father, Shivram, and then
of the plaintiff.
5) When the consolidation scheme was implemented, Survey
Nos. 178/2A and 178/2B were allotted Gat No. 952. The plaintiff’s
grandfather, Krishna, expired on 20
th
January 1960. During his
lifetime, he had partitioned all his properties, and Survey No. 178/2A
was allotted to the plaintiff’s father, Shivram, and the plaintiff received
it after the death of the plaintiff’s father on 31
st
March 1987.
6) The defendant’s grandfather, Mahadu, had obtained a Tagai
loan; hence, in the revenue record, entries were made in the
government's name as the loan was not repaid. Although the
plaintiff’s grandfather, Krishna, had purchased Survey No. 178/2A,
the entry was not made in the revenue record; hence, an incorrect
entry was made even for the said survey number in the name of the
government. The defendant claimed to have repaid the loan and
requested that the suit property be regranted to him. An order of
regrant was passed, and the defendant’s name was recorded in the
record of rights, which the plaintiff challenged by filing revenue
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proceedings. There was a threat of dispossession; hence, the suit
was filed.
PLEADINGS IN THE WRITTEN STATEMENT:
7) The defendant denied the suit claim on the ground that the
plaintiff or his family was not concerned with the suit property. The
defendant’s great-grandfather, Jijaba, and the plaintiff’s grandfather,
Krishna, were real brothers. In 1941, there was a partition among
them, and Survey No. 178/2 was allotted to Jijaba’s share. Thereafter,
from Survey No. 178/2, Jijaba sold an area of 36.5 gunthas to
Krishna on 4
th
July 1947, on the condition of repurchase. Accordingly,
Survey No. 178/2 was subdivided, and Survey No. 178/2A was
allotted to Krishna, and Survey No. 178/2B was allotted to Jijaba.
After the death of the defendant’s great-grandfather, Jijaba, his
grandfather, Mahadu, re-purchased Survey No. 178/2A from the
plaintiff’s grandfather, Krishna, on 11
th
March 1949. The defendant
denied that Survey No. 178/2B was given to the plaintiff’s grandfather
for cultivation. Defendant contended that it was always in possession
and cultivation with the defendant’s forefathers.
8) Thus, Survey Nos. 178/2A and 178/2B being owned and in
possession by the defendant’s forefathers, his grandfather, Mahadu,
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had availed the Tagai loan. However, the defendant’s grandfather was
unable to repay the loan; as a result, the property was auctioned and
vested in the Government. However, the defendant’s forefathers and
the defendant thereafter were always cultivating the suit property,
though the government's name was entered in the revenue record.
Incorrect entries were made in the revenue record for the cultivation
entries up to 1974-75. The transaction, if any, between Mahadu and
Krishna was illegal as the suit property vested in the government.
Since the suit property had always been in the possession of the
defendant’s family, in the consolidation scheme it was recorded to the
defendant’s father’s Account No. 330.
9) According to the defendant, ME No. 4251 was based on the
order passed by the learned Collector for the regrant of the suit
property in favour of the defendant. Hence, according to the
defendant, the suit property was initially auctioned and vested in the
government; however, it was regranted to the defendant by following
due process of law. The defendant thus claimed ownership and
possession of the suit property.
FINDINGS BY BOTH COURTS:
10) The trial court held that the plaintiff failed to prove that the
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plaintiff was an absolute owner and in possession of the suit property.
As per the plaintiff’s pleading, Survey No. 178/2B was owned by
Mahadu Jijaba, that is, the defendant’s grandfather. The plaintiff’s
grandfather purchased Survey No. 178/2A, and the defendant’s
grandfather repurchased it. The plaintiff, in his oral evidence,
contended that Survey No. 178/2 was purchased by Krishna and
Jijaba, who each held a half share. However, the sale deed is silent
about the extent of shares. The plaintiff has pleaded Survey No.
178/2B was owned by Mahadu and Survey No. 178/2A was
purchased by Krishna. It is contended by the plaintiff in oral evidence
that, as per the Sale Deed, Exhibit 66, Krishna purchased half the
share of Survey No. 178/2, and subsequently also purchased the
remaining half share from Mahadu. However, the oral evidence of the
plaintiff is contrary to the pleadings. The trial court found the
defendant’s case to be probable, namely, that in the 1941 partition,
Survey No. 178/2 was allotted to Jijaba, and that Jijaba subsequently
sold 36.5 gunthas to Krishna on 4
th
July 1947. The Mutation Entry No.
6606 at Exhibit 95A supported the theory of partition in 1941. Thus,
the trial court held that Survey No. 178/2A was allotted to Krishna,
and the remaining property was allotted Survey No. 178/2B in the
name of Jijaba. The plaintiff’s theory of possession on the ground that
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Survey No.178/2B was given to him for cultivation by Mahadu is also
disbelieved for want of evidence.
11) The fact that the defendant’s grandfather, Mahadu, had
purchased 178/2A from the plaintiff’s grandfather, Krishna, was
suppressed by the plaintiff. The Mutation Entry 7824 at Exhibit 89 and
the Index II at Exhibit 85 show that Mahadu had purchased 178/2A
from Krishna on 11
th
March 1949, and that conferred exclusive title of
the suit property to the defendant. The sale deed at Exhibit 66 is
interpreted to mean that only 36.5 gunthas from the eastern side of
Survey No. 178/2A was sold to Krishna by Mahadu on 17
th
March
1953 and not the entire suit property. However, in view of the public
auction on 10
th
November 1952, the government became the owner
of the suit property; hence, the sale deed in favour of Krishna in 1953,
without the government's permission, was void.
12) The plaintiff’s theory of possession was disbelieved on the
ground that the mutation entries at Exhibits 58 to 62 recorded that the
property was in custody of the government and Krishna’s name was
circled and shown in the cultivation column from 1954 to 1975-76.
However, the name of Krishna was entered in the cultivation column
on the strength of the yearly lease, that is, Kabuliyat, and it was found
unbelievable that Krishna was cultivating the land or in possession as
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owner. The trial court held that in the consolidation scheme, the suit
property was shown as government land and entered in the
defendant's account no. 330. The tax payment receipts produced by
the plaintiff were held as insufficient proof of possession. Since the
loan amount was shown to have been paid by the defendant and his
name was entered in the revenue record, the plaintiff’s theory of
possession was disbelieved.
13) The first appellate court confirmed the findings of the trial
court, holding that the plaintiff failed to prove his title to the suit
property on the strength of the documents at Exhibits 65 and 66. It is
held that the sale at Exhibit 65 does not mention that Krishna and
Jijaba had one-half share each in Survey Number 178/2. The plaintiff
pleaded that the suit property was owned by the defendant’s
grandfather, Mahadu, and thereafter Survey No. 178/2A was
purchased by Krishna from Mahadu. It was pleaded by the plaintiff
that Survey No. 178/2B was given by Jijaba to Krishna for cultivation
in 1946; however, there was no evidence to support the plaintiff’s
theory of possession. Even the first appellate court accepted the
defendant’s case that, in the 1941 partition, Survey No. 178/2 was
allotted to Jijaba and that he sold 36.5 gunthas to Krishna on 4
th
July
1947. Therefore, by examining the sale deeds and the revenue
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record, it was held that Survey No. 178/2A came in possession of
Krishna, and the remaining property, that is, Survey No. 178/2B
remained with Jijaba. The sale deed dated 17
th
March 1953, at Exhibit
66 by Mahadu in favour of Krishna, was interpreted to mean that 36.5
gunthas of land out of Survey No. 178/2A was purchased by Krishna
and not the whole suit property.
14) Since the revenue record showed Krishna’s name in the
cultivation column based on the Kabuliyat issued by the government
and the name of the government shown in the ownership column, the
plaintiff's theory of possession and cultivation as owner was
disbelieved. The 1953 sale deed at Exhibit 66 by Mahadu in favour of
Krishna was after the government auction in 1952. The sale deed of
1953 at Exhibit 66 was in respect of 36.5 gunthas from Survey No.
178/2A. Hence, none of the documents showed that the plaintiff was
the absolute owner of the entire suit property and that he was in
possession and cultivation thereof. The first appellate court confirmed
the trial court’s findings and thus dismissed the appeal filed by the
plaintiff.
SUBMISSIONS ON BEHALF OF THE APPELLANTS (PLAINTIFF).
15) Learned counsel for the appellants submitted that 7/12
extracts of suit property from 1954 onwards were produced before the
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Trial Court at Exhibits 58 to 64, which support the plaintiff’s case of
ownership and possession. On 18
th
August 1938, the plaintiff’s
grandfather, Krishna and the defendant’s great-grandfather, Jijaba,
jointly purchased the suit property bearing Survey No. 178/2,
admeasuring 1 acre 33 gunthas, from Bhiku Krishna Mungase, and
the sale deed is produced at Exhibit 65. On 4
th
July 1947, Jijaba
executed the sale deed for 36½ gunthas in favour of Krishna. On 12
th
November 1947, the effect of the sale deed dated 4
th
July 1947 was
given in the revenue record vide Mutation Entry No. 7379 dated 12
th
November 1947, at Exhibit 88. As recorded in the said mutation entry,
Survey No. 178/2A was entered in the name of Krishna and Survey
No. 178/2B was entered in the name of Jijaba.
16) After the sale deed was executed in favour of the plaintiff’s
grandfather, Krishna, the defendant’s great-grandfather, Jijaba, took a
Tagai loan of Rs. 1000/- on 22
nd
August 1947. On 23
rd
February
1949, Jijaba died. On 13
th
March 1949, Mahadu, son of Jijaba, i.e.
grandfather of the defendant, repurchased 36.5 gunthas from
Krishna. The effect of the said sale deed was given in the revenue
record vide Mutation Entry No. 7824, Exhibit 89. On 17
th
March 1953,
the defendant’s grandfather, Mahadu, sold 36.5 gunthas to the
plaintiff’s grandfather, Krishna.
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17) On 7
th
August 1954, the learned Collector passed an order
to take possession of lands bearing Survey Nos. 178/2A and 178/2B,
which were subjected to auction for default in repayment of the Tagai
loan. On 24
th
August 1954, the Government took possession of the
lands, and Mutation Entry No. 10393 was certified to record the
Government's name for Survey Nos. 178/2A and 178/2B. On 26
th
August 1954, Krishna, the grandfather of the plaintiff, submitted an
application seeking restoration of possession on the ground that he
had lawfully purchased the said lands, and even the loan had been
repaid. On 5
th
March 1957, Krishna, through his son Shivram, the
plaintiff’s father, again submitted an application seeking restoration of
possession. In 1957, the government granted Krishna the suit land on
a one-year lease by issuing Sanads (Kabulayats), Exhibits 69, 71 and
93.
18) Thereafter, Mahadu, the defendant’s grandfather, died. On
18
th
September 1969, Dnyanoba, the defendant’s father, gave a
statement that he had no objection to the regrant of lands in favour of
the sons of Krishna. In 1976, in the consolidation scheme, Survey
Nos. 178/2A and 178/2B were allotted Gat No. 952 admeasuring 0 H
73R. The relevant extracts of the scheme were produced at Exhibit
84. As per the said extract, the name of Government/ Akari Pad is
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recorded in the ownership column at Khata No. 330. Thereafter,
Dnyanoba died. In 1992, the defendant applied for the regrant of Gat
No. 952. On 8
th
April 1992, his application for regrant was allowed by
the Sub-Divisional-Officer (“SDO”). Therefore, Mutation Entry No.
4251 (Exhibit 82) dated 15
th
May 1992 was effected to record the
name of the defendant. In 1992, since the defendant tried to disturb
possession, the appellant filed the suit.
19) Learned counsel for the appellants, therefore, submitted that
the plaintiff’s grandfather, Krishna, and the defendant’s great-
grandfather, Jijaba had jointly purchased Survey No.178/2. Jijaba
sold 36.5 gunthas, i.e. ½ of Survey No. 178/2, to Krishna. Since, by
the 1938 sale deed, the entire survey number was jointly purchased,
after 36.5 gunthas was sold to Krishna by Jijaba, the entire survey
number vested in Krishna. However, the said sale deed was not
available to be produced in evidence. Jijaba availed the Tagai loan on
27
th
August 1947 after he sold ½ share to Krishna. Jijaba died on 23
rd
February 1949. Mahadu, the defendant’s grandfather, had
repurchased 36.5 Gunthas from Krishna on 13
th
March 1949, and the
effect thereof was recorded in Mutation Entry No. 7824, Exhibit 89.
Though the sale deed was not produced on record, the certified copy
of Index-II was produced at Exhibit 85. Mahadu, the defendant’s
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grandfather, sold the land to Krishna, that is, the plaintiff’s
grandfather, by sale deed dated 17
th
March 1953, Exhibit 66.
Therefore, the half share that was repurchased by Mahadu vested
back in Krishna. Therefore, Krishna was the absolute owner of
Survey No. 178/2 in view of the sale deeds at Exhibits 65 and 66.
20) Thus, the order of regrant in 1992 in the name of the
defendant cannot be accepted as a document of title, as the land was
already sold to the plaintiff’s grandfather. Thus, the mutation entry no.
4251, based on the order of regrant, would not confer any title in the
name of the defendant. Learned counsel for the appellants, therefore,
submitted that the sale deeds produced on record at Exhibits 65 and
66 were the title documents in the name of the plaintiff’s grandfather.
In the consolidation scheme implemented in 1976, Gat No. 952 was
entered in the ownership column of Khata No. 330 in the name of the
government, as the Tagai loan was availed. Both courts have wrongly
held that the Account No. 330 was in the defendant’s name.
Therefore, the subsequent entries in the revenue record and the
consolidation scheme in the name of the government would not
divest the plaintiff’s grandfather of the title vested in him based on the
registered sale deeds.
21) Learned counsel for the appellants referred to the relevant
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findings of both courts for accepting the defendant’s title based on
repayment of the Tagai loan and mutation entries. He submitted that
both courts have misinterpreted the title documents at Exhibits 65
and 66 by referring to the revenue record and the order of regrant
based on the defendant’s evidence for repayment. The findings
recorded by both the courts in dismissing the plaintiff’s suit would not
be sustainable, as the title documents at Exhibits 65 and 66 would
confer absolute ownership on the plaintiff’s grandfather. Hence,
subsequent mutation entries and the consolidation entries in the
name of the government would not divest the plaintiff’s grandfather of
the title vested in him based on the title documents. Learned counsel
for the appellants therefore submitted that the question of law must
be answered in favour of the appellants by holding that the findings
recorded by both the courts in disbelieving Exhibits 65 and 66 on the
ground of mutation entries are perverse and thus, would not be
sustainable in law.
22) Learned counsel for the appellants relied upon the copies of
the documents produced along with the Interim Application. The order
of regrant in the name of the defendant was passed on 8
th
April 1992.
The suit was filed on 18
th
June 1992. The plaintiff filed RTS Appeal
No. 90 of 1992 to challenge the regrant order. The appeal was
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allowed on 21
st
September 1992, setting aside the regrant in favour of
the defendant, and the suit property was ordered to be restored to the
plaintiff. The defendant had preferred a revision application before the
Divisional Commissioner, which was partly allowed on 14
th
January
1995, and the matter was remanded to the learned SDO for a fresh
hearing. The suit was dismissed on 5
th
July 1999. In the meantime,
the plaintiff had preferred the first appeal to challenge the dismissal of
his suit.
23) After the order of remand, the dismissal of the defendant's
regrant application and the restoration order in favour of the plaintiff
were confirmed. The defendant therefore filed an appeal before the
learned Collector, which was partly allowed on 29
th
November 2001,
and the matter was again remanded back to the learned SDO. After
the remand, the learned SDO partly allowed the appeal on 14
th
June
2010 and remanded the matter to the learned Tahasildar for fresh
consideration of the defendant’s application for regrant. After the
remand, the learned Tahasildar passed an order on 6
th
September
2014, refusing the defendant’s prayer for regrant and confirming the
restoration order in favour of the plaintiff. The defendant again
preferred an appeal before the SDO, which was dismissed on 4
th
September 2015. In the meantime, the first appeal preferred by the
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original plaintiff was dismissed on 23
rd
January 2002, and the present
second appeal was filed.
24) The second appeal was admitted on 24
th
November 2005.
During the pendency of the second appeal, the original plaintiff,
Ranganath, expired sometime in 2017. The present appellants were
thereafter brought on record as his heirs and legal representatives.
Their names were also recorded in the revenue record vide Mutation
Entry No. 4014. The defendant challenged the said mutation entry by
filing an RTS Appeal, which was dismissed on 19
th
September 2018.
The second RTS Appeal preferred by the defendant was also
dismissed on 15
th
June 2023. Accordingly, the mutation entries in the
name of the original plaintiff and the present appellants were
confirmed.
25) Since these orders rejecting the defendant’s application for
regrant and confirming restoration order in favour of the plaintiff and
the RTS proceedings in favour of the present appellants were
decided during the pendency of the second appeal, these documents
would support his submissions that the original title documents at
Exhibits 65 and 66 were accepted in the proceedings of regrant and
RTS proceedings in favour of the appellants. Hence, the appellant’s
contention that the documents at Exhibit 65 and 66 conferred title on
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the plaintiff’s grandfather and the appellants’ title therefore stands
confirmed. Hence, learned counsel for the appellants submitted that
the appellants be permitted to produce all the documents annexed to
the interim application by way of additional evidence. The question of
law must be answered in favour of the appellants (plaintiffs), and the
suit be decreed.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
(DEFENDANT) :
26) Learned counsel for the respondent submitted that the
orders passed by the revenue authorities are always subject to the
proceedings pending before the civil court. Hence, subsequent orders
passed by the revenue authorities would not be of any relevance in
deciding the plaintiff’s title. In the absence of any supporting
pleadings, no purpose would be served by permitting the additional
documents in evidence. In the dates and events referred to by the
learned counsel for the appellants, an important date, 10
th
November
1952, is not mentioned. He submits that the auction conducted on
10
th
November 1952 divested the plaintiff’s grandfather of the title
based on the documents at Exhibits 65 and 66. The sale deed at
Exhibit 66 cannot be held as a valid document of title as it was
executed after the date of the auction. On 10
th
November 1952, after
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the auction was concluded, the suit land vested in the government.
Hence, the sale deed dated 17
th
March 1953 at Exhibit 66 would not
confer any title in favour of the plaintiff’s grandfather. Hence, the
defendant is entitled to the order of regrant. Even otherwise, there is
no sufficient material to show that Krishna was the absolute owner of
the suit property, and that the plaintiff was in possession of the entire
suit property.
27) Learned counsel for the respondent referred to the findings
recorded in the revenue proceedings and Section 220 of the
Maharashtra Land Revenue Code (‘MLRC’). He submits that, in view
of Section 220 of the MLRC, the orders passed by the revenue
authorities and the findings in the said proceedings would not be of
any relevance in view of the vesting of the suit property in the name
of the government pursuant to the auction conducted in the year
1952. Learned counsel for the respondent further relied upon certain
admissions given by the original plaintiff with reference to the
possession. He submits that the perusal of the oral evidence would
indicate that the plaintiff was never in possession of the suit property.
28) The Tagai loan availed by the defendant’s grandfather was
under the provisions of the Land Improvement Loans Act, 1883. The
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amount was repaid by the defendant. Hence, he would be entitled to
the order of regrant. In view of the auction conducted for non-
payment of the Tagai loan, the land vested in the government. Hence,
in the absence of any declaration prayed by the plaintiff that the
subsequent mutation entries are legal and valid, the plaintiff would not
be entitled to a declaration of title based on the document executed
after the auction was concluded.
29) In view of these facts, of the auction concluded in 1952, and
the land vested in the government, the entire evidence relied upon by
the learned counsel for the appellants is beyond the pleadings.
Hence, none of the evidence relied upon by the plaintiff in the original
proceedings and by way of additional documents would be of any
assistance to support his submissions that the title vested in the
plaintiff’s grandfather. To support his submissions, learned counsel for
the respondent relied upon the decision of the Hon’ble Apex Court in
Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar
1
. He submits
that any findings recorded on the evidence dehors the pleadings
would be without jurisdiction. Hence, the documents relied upon by
the learned counsel for the appellants would not be of any assistance
in the absence of any supporting pleadings.
1 (2018) 11 SCC 652
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ANALYSIS :
30) I have carefully perused the entire proceedings, including the
pleadings and evidence on record. The submissions made by the
learned counsel for the appellants regarding the joint purchase of
Survey No. 178/2 by Krishna and Jijaba are not supported by
pleadings. The sale deed dated 18
th
August 1938 in the name of
Krishna and Jijaba is produced at Exhibit 65. Rather, the plaintiff
pleaded in the plaint that the suit property was originally owned by the
defendant’s grandfather, namely Mahadu. It is contended by the
defendant that in the partition of 1941, Survey No. 178/2 was allotted
to the share of Jijaba. This theory of partition finds support in Mutation
Entry No. 6606 at Exhibit 95A. Both courts have believed in the
partition theory.
31) The subsequent sale deed of 4
th
July 1947 by Jijaba,
executed in respect of 36.5 gunthas in favour of Krishna, is not in
dispute, but the document is not on record. However, the sale deed
was given effect in the record of rights. After the sale deed of 4
th
July
1947, by Jijaba in favour of Krishna, Survey No. 178/2 was
subdivided, and Survey No. 178/2A was entered in the name of
Krishna and Survey No. 178/2B was entered in the name of Jijaba.
Therefore, there cannot be any manner of doubt that Survey No.
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178/2B remained with Jijaba.
32) The record shows that without payment of the Tagai loan,
Jijaba expired on 23
rd
February 1949, and that the loan availed by
Jijaba was admittedly taken after he had executed the sale deed
dated 4
th
July 1947. Even the revenue entries produced on record
show that the endorsement of the loan was made in respect of
Survey No. 178/2B. The defendant denies Krisha's title on the ground
that, due to non-payment of the Tagai loan, an auction was conducted
and the land vested in the government. There appears to be no
dispute that there was an entry in the revenue record that Jijaba had
availed a Tagai loan on 22
nd
August 1947. However, it appears that
Mutation Entry No. 7379 was recorded thereafter on 12
th
November
1947 to record the execution of the sale deed dated 4
th
July 1947. As
per the said mutation entry, Survey No. 178/2A was recorded in the
name of Krishna. Therefore, availing a loan by Jijaba after executing
the sale deed in favour of Krishna for 36.5 gunthas out of Survey No.
178/2 would not affect Krishna’s title on Survey No. 178/2A.
33) There is also no dispute that by the sale deed dated 13
th
March 1949, Mahadu, i.e. the son of Jijaba, purchased Survey No.
178/2A from Krishna. The said sale deed was recorded in the record
of rights vide Mutation Entry No. 7824, produced at Exhibit 89.
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Though the document of sale is not produced on record, a copy of the
Index-II is produced at Exhibit 85. Thus, Mahadu, i.e. the grandfather
of the defendant, purchased land at Survey No. 178/2A from Krishna.
34) Therefore, even if the sale deed at Exhibit 65, for Survey No.
178/2, is jointly in the name of Krishna, that is, the grandfather of the
plaintiff and Jijaba, that is, the great-grandfather of the defendant,
there is nothing on record to show the extent of Krishna's and Jijaba's
ownership pursuant to the sale deed at Exhibit 65. However, Mutation
Entry No. 7379 at Exhibit 88 records the sub-division of Survey No.
178/2 to give effect to the sale deed dated 4
th
July 1947, executed by
Jijaba in favour of Krishna for 36.5 gunthas out of Survey No. 178/2.
The sub-division of Survey No. 178/2 is recorded in Mutation Entry
No. 7379 by recording Survey No. 178/2A in the name of Krishna and
Survey No. 178/2B in the name of Jijaba. Therefore, the sale deed at
Exhibit 65 read with Mutation Entry No. 7379 at Exhibit 88 shows that
when Jijaba sold 36.5 gunthas to Krishna out of Survey No. 178/2, he
retained the remaining 36.5 gunthas. Thus, Krishna was the owner of
Survey No. 178/2A, and Jijaba was the owner of Survey No. 178/2B.
35) Thus, the concurrent finding recorded by both courts
accepting the defendant’s theory of 1941 partition that Survey No.
178/2 was allotted to the share of Jijaba, is more probable, as it also
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finds support in the undisputed sale deed dated 4
th
July 1947
executed by Jijaba in favour of Krishna, as evidenced by Mutation
Entry No. 7379, at Exhibit 88 showing that Krishna was owner of
Survey No. 178/2A. This fact is further confirmed by the subsequent
sale deed dated 13
th
March 1949, executed by Krishna as owner in
favour of Mahadu for Survey No. 178/2A, as evidenced by Mutation
Entry No. 7824 at Exhibit 89 and Index II at Exhibit 85. Even the Sale
Deed dated 17
th
March 1953 at Exhibit 66 by Mahadu in favour of
Krishna for Survey No. 178/2A supports this fact. Even otherwise, the
plaintiff has not pleaded ownership in respect of Survey No. 178/2B,
and in fact, he has pleaded that the suit property was owned by
Mahadu.
36) Thus, the aforesaid sequence of transactions and the
relevant revenue record show that half of the suit property was sold
by Jijaba to Krishna and was repurchased by Jijaba's son, i.e.,
Mahadu (defendant’s grandfather), from Krishna. Thereafter, the land
repurchased by Mahadu was again sold to Krishna on 17
th
March
1953, which is the document at Exhibit 66. This sale deed at Exhibit
66 records that Survey No. 178/2A, admeasuring 36.5 gunthas, is
sold by Mahadu to Krishna. Therefore, there is sufficient evidence
that Survey No. 178/2A was owned by Krishna and Survey No.
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178/2B was always owned by Jijaba and then by his son, Mahadu.
37) On the execution of the sale deed dated 13
th
March 1949, as
seen from Mutation Entry No. 7824, Exhibit 89 and Index II at Exhibit
85, the ownership of Survey No. 178/2A was transferred from Krishna
to Mahadu. Therefore, Survey No. 178/2B was already with Jijaba,
and even Survey No. 178/2A went to the branch of Jijaba, which
conferred absolute ownership of Survey No, 178/2 to the defendant’s
family, that is to Mahadu, grandfather of the defendant and son of
Jijaba, till the sale deed dated 17
th
March 1953 was executed by
Mahadu in favour of Krishna.
38) By sale deed dated 17
th
March 1953, Exhibit 66, though
Survey No. 178/2A was again transferred to Krishna, that is, the
plaintiff’s grandfather, the ownership of Survey No. 178/2B always
remained with Jijaba’s branch. Therefore, the defendant’s family, that
is, Jijaba and Mahadu, were never divested of the title of Survey No.
178/2B, that is, half of the suit property. The revenue record shows
that in 1954, the auction process was completed and Survey Nos.
178/2A and 178/2B were entered in the name of the government, as
the Tagai loan was not repaid. There is no dispute that in the
consolidation scheme, Survey Nos. 178/2A and 178/2B were allotted
Gat No. 952. In the revenue record of Form ‘B’ at Exhibit 84 and the
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7/12 extract at Exhibits 58, 59, 60, 61, 62, 63 and 64, show the name
of the government in respect of Survey No. 178/2 and Gat No. 952.
Interestingly, the entry of the loan is seen only in respect of Survey
No. 178/2B.
39) However, the material on record shows the status of Survey
Nos. 178/2A and 178/2B, after they were consolidated as Gat No.
952 in the government's name under the consolidation scheme. With
reference to the Tagai loan endorsed in the revenue record, the order
was passed on 7
th
August 1954 by the learned Collector for taking
over possession by auction for default in payment of the Tagai loan.
40) The record shows that, pursuant to the applications at
Exhibits 73 and 74, submitted by Krishna and Shivram, respectively,
the government granted a lease by issuing sanad (Kabuliyat)
produced at Exhibits 69 and 71 to cultivate Survey Nos. 178/2A and
Survey No. 178/2B. The defendant’s father, Dnyanoba’s statement,
recorded that he had no objection if the suit land was regranted to the
sons of Krishna. The statement is produced at Exhibit 77. In 1992,
the application for regrant was approved, and Mutation Entry No.
4251, dated 15
th
May 1992, was effected by entering the defendant's
name in the revenue record. According to the plaintiff, based on the
said mutation entry, the defendant tried to disturb the plaintiff’s
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possession. Hence, the suit was filed.
41) The plaintiff prayed for a declaration that the defendant has
no right, title, or interest in the suit property and an injunction to
protect the plaintiff’s possession in respect of Gat No. 952 that
comprises Survey Nos. 178A and 178B. It is therefore necessary to
peruse the orders passed by the revenue authorities annexed to the
Interim Application to find out whether they need to be taken on
record as additional evidence.
42) The revenue authorities have held that the order in favour of
the defendant was not of regrant but was an order of restoration
under Section 220 of the MLRC. It is further held that proceedings for
auction were conducted due to non-payment of the loan; however,
when the lands, that is, Survey Nos. 178/2A and 178/2B were put to
auction; no one came forward to bid; therefore, the government made
a nominal bid. Before confirmation of the auction sale, lands were
sold to Krishna by the defaulter in 1953, and accordingly, Krishna’s
name was entered in the record of rights by Mutation Entry Nos. 9967
and 10164. It is further recorded that the defendant’s father had
admitted in his statement dated 18
th
September 1969 that Survey
Nos. 178/2A, 178/2B and 178/5 have been sold to Krishna, and it
may be regranted to his sons and that he may be regranted Survey
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No. 182/4. Therefore, in view of the mutation entries and the
statement made by the defendant's father, the suit property, that is,
Survey Nos. 178/2A, 178/B, and another Survey No. 178/5
consolidated into Gat Nos. 952 and 948 were held to be in Krishna's
possession. The learned Additional Collector, by Judgment and Order
dated 21
st
September 1992, allowed RTS Appeal No. 90 of 1992 filed
by the plaintiff to challenge the order dated 8
th
April 1992 in favour of
the defendant and accordingly ordered that Gat Nos. 952 and 948 be
restored to Ranganath, i.e., the present plaintiff.
43) The defendant, that is, Maruti, had challenged the said order
dated 21
st
September 1992, before the Additional Commissioner by
filing RTS Appeal No. 156 of 1992, which was partly allowed on 14
th
January 1995, and the matter was remanded to the SDO to conduct a
fresh enquiry. After remand, the learned SDO, by order dated 21
st
June 1997, confirmed the order in favour of the plaintiff for restoration
of Gat Nos. 952, i.e. the suit property and Gat No. 948. The RTS
Appeal No. 152/1997 preferred against the said order was partly
allowed by the learned Collector, on 29
th
November 2001, and the
matter was again remanded to SDO. The learned SDO, by order
dated 14
th
June 2010, remanded the matter to the learned Tahsildar.
Upon remand, the learned Tahsildar passed an order dated 6
th
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September 2014 in favour of the plaintiff, confirming the original order
restoring the suit property in favour of the present plaintiff. A further
challenge by the defendant failed when his RTS Appeal No. 470/2014
was dismissed by the learned SDO on 4
th
September 2015. From the
documents annexed to the interim application, it appears that the
defendant’s challenge to the entries in the record of rights in the
name of the plaintiff and subsequently in the name of the present
appellants failed.
CONCLUSIONS:
44) It is also necessary to refer to the plaintiffs’ pleadings, where
he states that Survey Nos. 178/2A and 178/2B were owned by the
defendant’s grandfather, i.e. Mahadu and the plaintiff’s grandfather,
Krishna, had purchased Survey No. 178/2A from Mahadu. Thus, the
plaintiff pleaded only the sale deed at Exhibit 66, that is, the sale
deed dated 17
th
March 1953 executed by Mahadu in favour of
Krishna, as a source of title of Krishna in respect of 36.5 gunthas of
Survey No. 178/2A and not through the first sale deed dated 18
th
August 1938, at Exhibit 65. The plaintiff seeks a declaration of
ownership of Gat No. 952, which comprises Survey No. 178/2A and
Survey No. 178/2B; however, even according to the pleadings and
evidence of the plaintiff, his source of title to Survey No. 178/2B is not
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shown. Therefore, it is difficult to accept the arguments of learned
counsel for the appellants that the sale deeds at Exhibits 65 and 66
would confer absolute ownership on Krishna in respect of the entire
Gat No. 952. However, in view of the vesting of title in Krishna by the
sale deed dated 4
th
July 1947 evidenced by Mutation Entry No. 7379,
at Exhibit 88 in respect of Survey No. 178/2A before the order of
auction in the year 1954, it would not divest Krishna of his ownership
of Survey No. 178/2A admeasuring 36.5 gunthas. The subsequent
sale deed dated 13
th
March 1949 by Krishna in favour of Mahadu,
evidenced by Mutation Entry No. 7824, at Exhibit 89 and Index II at
Exhibit 85, read with the sale deed dated 17
th
March 1953 at Exhibit
66 by Mahadu in favour of Krishna, shows that the title of Survey No.
178/2A admeasuring 36.5 Ares vested with Krishna.
45) The sale deed dated 18
th
August 1938, at Exhibit 65, in the
joint names of Jijaba and Krishna, does not specify the extent of their
independent ownership. However, in view of the findings that Survey
No. 178/2 was allotted to Jijaba in the 1941 partition, the subsequent
sale deed in respect of 36.5 gunthas in favour of Krishna, read with
the subdivision of Survey No. 178/2, allotting Survey No. 178/2A
admeasuring 36.5 gunthas to Krishna and Survey No. 178/2B
admeasuring 36.5 gunthas to Jijaba, it is clear that the title to the 36.5
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gunthas out of Survey No. 178/2, i.e. Survey No. 178/2B, was always
retained with Jijaba.
46) On perusal of the aforesaid orders passed by the Revenue
Authorities annexed to the Interim Application, it is seen that
defendant’s father’s statement dated 18
th
September 1969 and
Mutation Entry Nos. 9967 and 10164 are relied upon. It is held that by
Mutation No. 277, the regrant order in the name of the opponents
was recorded. The names of the opponents in the revenue
proceedings are Rangnath Shivaram Medankar, Baban Rambhau
Medankar and Pandurang Rambhau Medankar. Rangnath Shivaram
Medankar is the present plaintiff; however, the other opponents are
not parties to the present proceedings. By the aforesaid last order
dated 6
th
September 2014, passed by the learned Tahsildar and
confirmed by the learned SDO on 4
th
September 2015, the orders are
in favour of the opponents therein, restoring Gat Nos. 952 and 948,
now numbered as Gat Nos. 50 and 54. It is also recorded that the
orders are passed under Section 220 of the MLRC. Thus, these
orders are not exclusively in the name of the plaintiff.
47) In the decision of Shivaji Balaram Haibatti relied upon by the
learned counsel for the respondent, the Apex Court held that the
parties to the suit cannot travel beyond the pleadings; so also the
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court cannot record any finding on the issues which are not part of
the pleadings and that any finding recorded on an issue
dehors the
pleadings is without jurisdiction. In the present case, the plaintiff has
neither pleaded any source of title to Survey No. 178/2B and the
entire Gat No. 952 nor pleaded any exclusive right flowing from the
orders passed under Section 220 of MLRC. Therefore, considering
the plaintiff’s pleadings, no purpose would be served by permitting the
copies of the orders annexed to the interim application pertaining to
Survey Nos. 178/2A and 178/2B along with the other survey numbers
and Consolidated Gat Nos. 952 and 948, to be produced as
additional evidence.
48) The Interim Application is therefore dismissed.
49) Hence, the question of law framed in the second appeal is
accordingly answered as follows:
“So far as the title is concerned, the documents on record, i.e.
Exhibits 65 and 66, read with the other evidence as discussed in the
above paragraphs, show that Survey No. 178/2A admeasuring 36.5
gunthas was owned by Krishna and Survey No. 178/2B admeasuring
36.5 gunthas was owned by Jijaba and thereafter by Mahadu.
However, the said survey numbers were consolidated in Gat No. 952
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and recorded in the name of the government. In view of the findings
on the title and possession in respect of Survey Nos. 178/2A and
178/2B, no declaration can be granted that the defendant is not at all
concerned with Gat No. 952. There is no clarity on the actual physical
possession of the suit property, that is, Gat No. 952. The suit is filed
with a prayer to declare that the defendant, who is Mahadu’s
grandson, has no right, title, or interest in the suit property. The suit
property is described as Survey Nos. 178/2A and 178/2B, original
Survey No. 178/2 consolidated as Gat No. 952 admeasuring 73
Ares(gunthas). In view of the title documents in respect of Survey
Nos. 178/2A and 178/2B, and original Survey No. 178/2, as
discussed in the above paragraphs, it cannot be said that the
defendant would have no right, title, or interest of whatsoever nature
or not at all concerned with Survey No. 178/2B and Gat No. 952.
Hence, the declaration prayed for in the present suit cannot be
granted. In the absence of sufficient pleadings supported by
satisfactory evidence, the declaration and injunction in respect of
possession also cannot be granted. Therefore, there is no perversity
in the findings recorded in the impugned judgments warranting any
interference in this second appeal, subject to the aforesaid
clarificatory findings. Hence, no interference is warranted in the
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impugned decrees dismissing the suit.”
50) In view of the aforesaid findings on title to Survey Nos.
178/2A and 178/2B, it is clarified that the concerned parties would be
at liberty to adopt appropriate proceedings as permissible in law for
appropriate reliefs in respect of their respective rights through Krishna
and/or Jijaba and Mahadu, and for separate possession in Gat No.
952, including applying for partition and separate possession. If any
such proceedings are initiated, the issue of joinder of the necessary
parties from the branches of Krishna, Jijaba, and Mahadu is kept
open, as no adjudication on who are the heirs and legal
representatives of Krishna, Jijaba and Mahadu has been undertaken
in these proceedings.
51) The second appeal is therefore dismissed subject to the
aforesaid clarification.
(GAURI GODSE, J.)
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