Case Note & Summary
The case involves a property dispute where the appellants (original defendants No.2 to 4) purchased suit property from respondent No.2 (adopted son of Kausalyabai) via three registered sale deeds dated 02.06.1995. The adoptive mother Kausalyabai and her sister Parwatibai (respondent No.1) filed a suit on 17.08.2009 for declaration of ownership, recovery of possession, and a declaration that the sale deeds were not binding on their shares. During the suit, Kausalyabai died, and Parwatibai continued. The trial court partly decreed the suit, declaring Parwatibai as owner of half share and defendant No.1 as owner of the other half, and held that the sale deeds were not binding on Parwatibai's share. The first appellate court confirmed this. The appellants filed a second appeal under Section 100 CPC. The High Court found that the lower appellate court had not properly considered the evidence, particularly regarding the plaintiff's possession and the validity of the sale deeds. The court noted that the concurrent findings were perverse and based on misreading of evidence. Consequently, the High Court allowed the appeal, set aside the judgments of both lower courts, and remanded the matter to the first appellate court for fresh consideration in accordance with law. The court directed the first appellate court to decide the appeal afresh after giving both parties an opportunity to be heard.
Headnote
A) Property Law - Co-ownership - Sale by Co-owner - Section 44 of Transfer of Property Act, 1882 - A co-owner cannot transfer more than his share in the property; sale by one co-owner does not bind the share of other co-owners. The court held that the sale deeds executed by defendant No.1 (adopted son) in favour of appellants could not affect the half share of plaintiff No.2 (Parwatibai) as she was a co-owner. (Paras 3-5)
B) Civil Procedure - Second Appeal - Interference with Concurrent Findings - Section 100 of Code of Civil Procedure, 1908 - The High Court can interfere with concurrent findings of fact if they are perverse, based on no evidence, or based on misreading of evidence. The court found that the lower appellate court failed to consider material evidence and thus set aside the concurrent findings for fresh consideration. (Paras 6-10)
C) Evidence - Burden of Proof - Title and Possession - The plaintiff must prove her title and possession to succeed in a suit for declaration and recovery of possession. The court noted that the trial court and first appellate court did not properly appreciate the evidence regarding the plaintiff's possession and the validity of the sale deeds. (Paras 4-8)
Issue of Consideration
Whether the sale deeds executed by defendant No.1 (adopted son) in favour of appellants (defendants No.2 to 4) are binding on the share of plaintiff No.2 (Parwatibai) and whether the courts below erred in decreeing the suit for declaration and recovery of possession without proper consideration of evidence.
Final Decision
The High Court allowed the second appeal, set aside the impugned judgment and decree of the District Court in Regular Civil Appeal No. 149/2014 and the trial court's judgment and decree in Regular Civil Suit No. 192/2009, and remanded the matter to the first appellate court for fresh consideration in accordance with law. The first appellate court was directed to decide the appeal afresh after giving both parties an opportunity to be heard.
Law Points
- Co-owner's share not binding by sale by another co-owner
- Section 44 Transfer of Property Act
- 1882
- Section 34 Specific Relief Act
- 1963
- burden of proof on plaintiff to prove title and possession
- concurrent findings of fact can be interfered with if perverse or based on no evidence
Case Details
2022 LawText (BOM) (04) 5
Second Appeal No. 515 of 2021 with Civil Application No. 12064 of 2021
Mr Prakashsing B. Patil for Appellants, Mr Shahaji B. Ghatol Patil for Respondent No.1
Rajesh S/o. Panditrao Pawar, Dnyanoba S/o. Marotrao Pote, Godavaribai W/o. Dnyanoba Pote
Parwatibai W/o. Bhimrao Bende, Shivaji S/o. Wamanrao Tong
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Nature of Litigation
Civil suit for declaration of ownership, recovery of possession, and declaration that sale deeds are not binding on plaintiff's share.
Remedy Sought
Plaintiffs (Kausalyabai and Parwatibai) sought declaration of ownership, recovery of possession, and declaration that sale deeds executed by defendant No.1 in favour of defendants No.2 to 4 are not binding on their shares.
Filing Reason
Defendant No.1 (adopted son) sold suit property to appellants without consent of other co-owners, leading to dispute over title and possession.
Previous Decisions
Trial court partly decreed suit declaring Parwatibai as owner of half share and defendant No.1 as owner of other half, and held sale deeds not binding on Parwatibai's share. First appellate court confirmed the trial court's judgment.
Issues
Whether the sale deeds executed by defendant No.1 in favour of appellants are binding on the share of plaintiff No.2?
Whether the lower appellate court's judgment is perverse and based on misreading of evidence?
Whether the concurrent findings of fact warrant interference under Section 100 CPC?
Submissions/Arguments
Appellants argued that the lower appellate court failed to consider material evidence, including the fact that plaintiff No.2 was not in possession and that the sale deeds were valid.
Respondent No.1 argued that the concurrent findings were correct and that the sale deeds could not bind her share as a co-owner.
Ratio Decidendi
The High Court can interfere with concurrent findings of fact under Section 100 CPC if they are perverse, based on no evidence, or based on misreading of evidence. In this case, the lower appellate court failed to consider material evidence, rendering its findings perverse. Therefore, the matter was remanded for fresh consideration.
Judgment Excerpts
Unsuccessful original defendant Nos. 2 to 4 have preferred this second appeal against impugned Judgment and decree passed by the District Court in Regular Civil Appeal No. 149/2014 arising out of Judgment and decree passed in Regular Civil Suit No. 192/2009 by the learned 4th Jt. Civil Judge Junior Division, Parbhani.
The appellants have purchased the suit property from respondent No. 2/adopted son of Kausalyabai (original plaintiff No.1 since deceased) vide three registered sale deeds dated 02.06.1995.
The trial court was pleased to decree the suit partly as under :- ... Plaintiff No. 2 is declared as owner of suit property to the extent of her half share. Defendant No.1 is declared as owner of suit property to the extent of his remaining half share. ... Sale Deed bearing No. 1418/1995, 1419/1995, 1420/1995 all dated 02.06.1995 executed by defendant No.1 in favour of defendants No. 2 to 4 in respect of suit property ... are not binding on the share of plaintiff No.2.
Procedural History
Original plaintiffs Kausalyabai and Parwatibai filed Regular Civil Suit No. 192/2009 for declaration, possession, and declaration that sale deeds are not binding. During pendency, Kausalyabai died. Trial court partly decreed suit on an unspecified date. Defendants No.2 to 4 appealed to District Court in Regular Civil Appeal No. 149/2014, which was dismissed. They then filed Second Appeal No. 515/2021 in the High Court, which was allowed and remanded on 07.04.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Transfer of Property Act, 1882: Section 44
- Specific Relief Act, 1963: Section 34
