Bombay High CourtWP/4442/2016admittedallowedgrantedrule absolute

Suresh Bajirao Patil v. Shankar Kalu Patil And Others

2016-04-29Hon'Ble Shri Justice Sunil P. Deshmukh22 pages

{1} drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.4442 OF 2016 Suresh Bajirao Patil PETITIONER Age - 53 years, Occ - Agriculture R/o At Post Warkhede, Taluka - Chalisgaon District - Jalgaon

VERSUS

Shankar Kalu Patil RESPONDENTS Age - 65 years, Occ - Nil R/o At Post Laxmi Nagar, Chalisgaon, Taluka - Chalisgaon District- Jalgaon 2.

Bajirao Kalu Patil, Deceased through Legal Heirs 3.

Pratap Kalu Patil, Age: 51 years, Occu: Agriculture, 4.

Parvatabai Kalu Patil, Age: 80 years, Occu: Household All above R/o At/Post: Warkhede, Tal: Chalisgaon, Dist: Jalgaon 5.

{2} Since deceased through Heirs C-1] Shri Kailas Sudam Patil Age: 32 years, Occu: Agriculture C-2] Kapur Sudam Patil Age: 28 years, Occu: Agriculture C-3] Anjanabai Sudam Patil, Age: 60 years, Occu: Household All above R/o At/Post Kherde, Tal. Chalisgaon, Dist. Jalgaon C-4] Sunita Suresh Patil, Age: 30 years, Occu: Household R/o: At/Post: Wadi (Shewale), Tal. Pachora, Dist. Jalgaon D] Popat Ganpat Patil Age: 34 years, Occu: Agriculture, R/o: At/Post: Kherde, Tal. Chalisgaon, Dist. Jalgaon E] Durgabai Rajdhar Patil Age: 58 years, Occu: Household, R/o: At/Post: Raver, Tal. Raver, Dist: Jalgaon F] Jankabai Nathu Patil, Age: 55 years, Occu: Household, R/o: At/Post: Galan, Tal. Pachora, Dist. Jalgaon G] Anusayabai Govind Patil, Age: 45 years, Occu: Household, R/o. At/Post: Morane, Dhule, Tq. & Dist: Dhule H] Smt. Yashoda Pitambar Sonawane Age: 40 years, Occu: Household, R/o. Chandsar, Tq. Dharangaon (Erandol), Dist. Jalgaon

{3} I] Manik Keshav Patil, Age: 54 years, Occu. Agriculture, J] Dipak Manik Patil, Age: 30 years, Occu: Agriculture, K] Shri. Kiran Manik Patil, Age: 38 years, Occu: Agriculture, All above R/o: Tarangana, Sane Guruji Nagar, Chalisgaon, Tal. Chalisgaon, Dist. Jalgaon 6.

Smt. Vaijabai Pandit Patil, Since deceased through LR's 6A] Shri Narayan Pandit Bhosale (Patil), Age: 50 years, Occu: Agriculture, 6B] Shri. Raghunath Pandit Bhosale (Patil), Age: 35 years, Occu: Agriculture, Both R/o: Daregaon, Tal. Chalisgaon, Dist: Jalgaon 6C] Sumanbai Laxman Patil Age: 45 years, Occu: Household, R/o. Bodhagaon, Tal & Dist. Dhule 6D] Shobha Ramesh Pawar, R/o: Dhamangaon, Tal. Chalisgaon, Dist: jalgaon 6E] Vimalbai Kashinath Patil (Pawar), Age: 48 years, Occu: Household, R/o: Bhoras, Tal. Chalisgaon, Dist: Jalgaon 7.

Smt. Sarubai Gajmal patil Age: 50 years, Occu: Household, R/o: Dhamnar, Tal. Sakri, Dist. Dhule 8.

Gangubai wd/o Babulal Patil

{4} Since deceased through Legal Heirs 8A] Shobhabai Arjun Kachave Age: 50 years, Occu: Household, R/o: Padalde, Tal. Malegaon, Dist: Nashik 8B] Amruta Sukadeo Pawar, Age: 30 years, Ocu: Household, R/o. Ganraj Society, Near Water Tank, Alandi Road, At/Post: Bhosari, Pune.

8C] Jayshree Dagadu Saindane (Patil), Age: 26 years, Occu: Household, R/o: Sant Tukaram Nagar, Moriya Colony, Shinde Chal, Alandi Road, Bhosari, Pune 8D] Nisha Ajit Chavan (Patil), Age: 28 years, Occu: Household, R/o: At/Post: Nimgul, Tal & Dist. Dhule 8E] Mahesh Arjun Kachave (Patil), Age: 25 years, Occu: Agriculture, R/o: Padalde, Tal. Malegaon, Dist. Nashik 8F] Jijabai Krushna Kachave (Patil), Age: 45 years, Occu: Household, 8G] Suvarna Shivaji Patil, Age: 25 years, Occu: Household, Both R/o: Ratan Chwk, Plot No.554, Nava Nagar, Surat (Gujarat) 8H] Kavita Sandeep Patil, Age: 23 years, Occu: Household, R/o. Thakur Galli, Dondaicha, Tal. Shindkheda, Dist. Dhule 8I] Gita Dnyaneshwar Patil, Age: 21 years, Occu: Household, R/o. Survey No.35/1, Nalvade Park, Chinchavade Nagar, Nandanwan, Chinchwad, Pune

{5} 8J] Sunita Vijay Pawar Age: 20 years, Occu: Household, R/o. Lonawade, Tal. Malegaon, Dist. Nashik.

8K] Bhushan Krushna Kachave (Patil), Age: 19 years, Occu: Education, R/o: Ratan Chowk, Plot No.554, Nava Nagar, Surat (Gujarat) 8L] Meenabai Baliram Kachave (Patil), Age: 44 years, Occu: Household, R/o. Padalde, Tal. Malegaon, Dist. Nashik 8M] Yogita Samadhan Kadam Age: 24 years, Occu: Agriculture, R/o. Nimgul, Tal. Malegaon, Dist. Nashik 8N] Sheetal Baliram Kachave (Patil), Age: 19 years, Occu: Household, R/o. Padalde, Tal. Malegaon, Dist. Nashik.

8O] Kalabai @ Annapurna Pralhad More, Age - 55 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule 8P] Kasubai Jibhau Patil, Age - 50 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule 9.

Uttam Bajirao Patil, Age - 40 years, Occ - Agriculture 10.

Sakubai wd/o Bajirao Patil, Age - 60 years, Occ - Household Both R/o At Post Warkhede (Bk) Taluka - Chalisgaon, District - Jalgaon 11.

Keshav Pratap Patil (Warkhedekar)

{6} Age - 40 years, Occ - Agriculture R/o Udesing Anna Gurha Nirman Society, Dhule road, Chalisgaon, Taluka - Chalisgaon District - Jalgaon 12.

Hirakan Nanabhau Patil, Age - 55 years, Occ - Household R/o Kherde, Post - Lonaje, Taluka - Chalisgaon, District - Jalgaon 13.

Sunanda Deoram Patil, Age - 49 years, Occ - Household R/o At post Goradkhede, Taluka - Pachora, District - Jalgaon 14.

Mangal Yuvraj Patil, Age - 46 years, Occ - Household R/o At post Ronje, Taluka - Erandol District - Jalgaon 15.

Vilas Ramesh (Shravan) Kadekar, Ag e- 37 years, Occ - Agriculture R/o At Post Warkhede (Bk) Taluka - Chalisgaon District - Jalgaon 16.

Krushna Prabhakar Chudhari, Age - 32 years, Occ - Agriculture R/o At Post Londhe, Taluka - Chalisgaon District - Jalgaon 17.

Sandeep Ratilal Chaudhari, Age - 28 years, Occ - Agriculture R/o Londhe, Taluka - Chalisgaon District - Jalgaon 18.

Kailas Himmat Patil, Age - 35 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon District - Jalgaon 19.

Deelip Eknath Patil, Age - 37 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon

{7} District - Jalgaon 20.

Ramesh Raghunath Rathod, Age - 35 years, Occ - Agriculture R/o Londhe (Krushnapuri) Taluka - Chalisgaon, District - Jalgaon 21.

Meena Keshav Patil, Age - Adule, Occ - Agriculture / Household R/o Warkhede, Taluka - Chalisgaon District - Jalgaon (Respondents No.2 to 21 stand deleted at the request of learned advocate for the petitioner) .......

Mr. Shailesh P. Brahme, Advocate for the petitioner Mr. S.S.Kulkarni h/f Mr.P.D.Bachate, Adv. for respondent No.1 .......

WITH WRIT PETITION NO.4778 OF 2016 Shankar Kalu Patil PETITIONER Age: 65 years, Occu: Nil, Through his GPA Girish Shankar Patil, Age: Major, Occ: Agri, R/o: At/Post: Laxmi Nagar, Chalisgaon, Tal. Chalisgaon, Dist: Jalgaon

VERSUS

Suresh Bajirao Patil, Age: 53 years, Occu: Agriculture, 2.

Bajirao Kalu Patil, Deceased through Legal Heirs 3.

Pratap Kalu Patil, Age: 51 years, Occu: Agriculture,

{8} 4.

Parvatabai Kalu Patil, Age: 80 years, Occu: Household All above R/o At/Post: Warkhede, Tal: Chalisgaon, Dist: Jalgaon 5.

Sau. Bhanubai Ganpat Patil Since deceased through heirs on record A] Nanabhau Ganpat Patil, Age: 53 years, Occu: Agriculture, B] Shri Dayaram Ganpat Patil, Age: 48 years, Occu: Agriculture, C] Sudam Ganpat Patil Since deceased through Heirs C-1] Shri Kailas Sudam Patil Age: 32 years, Occu: Agriculture C-2] Kapur Sudam Patil Age: 28 years, Occu: Agriculture C-3] Anjanabai Sudam Patil, Age: 60 years, Occu: Household All above R/o At/Post Kherde, Tal. Chalisgaon, Dist. Jalgaon C-4] Sunita Suresh Patil, Age: 30 years, Occu: Household R/o: At/Post: Wadi (Shewale), Tal. Pachora, Dist. Jalgaon D] Popat Ganpat Patil Age: 34 years, Occu: Agriculture, R/o: At/Post: Kherde, Tal. Chalisgaon, Dist. Jalgaon E] Durgabai Rajdhar Patil Age: 58 years, Occu: Household,

{9} R/o: At/Post: Raver, Tal. Raver, Dist: Jalgaon F] Jankabai Nathu Patil, Age: 55 years, Occu: Household, R/o: At/Post: Galan, Tal. Pachora, Dist. Jalgaon G] Anusayabai Govind Patil, Age: 45 years, Occu: Household, R/o. At/Post: Morane, Dhule, Tq. & Dist: Dhule H] Smt. Yashoda Pitambar Sonawane Age: 40 years, Occu: Household, R/o. Chandsar, Tq. Dharangaon (Erandol), Dist. Jalgaon I] Manik Keshav Patil, Age: 54 years, Occu. Agriculture, J] Dipak Manik Patil, Age: 30 years, Occu: Agriculture, K] Shri. Kiran Manik Patil, Age: 38 years, Occu: Agriculture, All above R/o: Tarangana, Sane Guruji Nagar, Chalisgaon, Tal. Chalisgaon, Dist. Jalgaon 6.

{10} R/o. Bodhagaon, Tal & Dist. Dhule 6D] Shobha Ramesh Pawar, R/o: Dhamangaon, Tal. Chalisgaon, Dist: jalgaon 6E] Vimalbai Kashinath Patil (Pawar), Age: 48 years, Occu: Household, R/o: Bhoras, Tal. Chalisgaon, Dist: Jalgaon 7.

Smt. Sarubai Gajmal patil Age: 50 years, Occu: Household, R/o: Dhamnar, Tal. Sakri, Dist. Dhule 8.

Gangubai wd/o Babulal Patil Since deceased through Legal Heirs 8A] Shobhabai Arjun Kachave Age: 50 years, Occu: Household, R/o: Padalde, Tal. Malegaon, Dist: Nashik 8B] Amruta Sukadeo Pawar, Age: 30 years, Ocu: Household, R/o. Ganraj Society, Near Water Tank, Alandi Road, At/Post: Bhosari, Pune.

{11} 8G] Suvarna Shivaji Patil, Age: 25 years, Occu: Household, Both R/o: Ratan Chwk, Plot No.554, Nava Nagar, Surat (Gujarat) 8H] Kavita Sandeep Patil, Age: 23 years, Occu: Household, R/o. Thakur Galli, Dondaicha, Tal. Shindkheda, Dist. Dhule 8I] Gita Dnyaneshwar Patil, Age: 21 years, Occu: Household, R/o. Survey No.35/1, Nalvade Park, Chinchavade Nagar, Nandanwan, Chinchwad, Pune 8J] Sunita Vijay Pawar Age: 20 years, Occu: Household, R/o. Lonawade, Tal. Malegaon, Dist. Nashik.

8O] Kalabai @ Annapurna Pralhad More, Age - 55 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule

{12} 8P] Kasubai Jibhau Patil, Age - 50 years, Occ - Household R/o At Post Nimgul, Taluka and District - Dhule 9.

Uttam Bajirao Patil, Age - 40 years, Occ - Agriculture 10.

Sakubai wd/o Bajirao Patil, Age - 60 years, Occ - Household Both R/o At Post Warkhede (Bk) Taluka - Chalisgaon, District - Jalgaon 11.

Keshav Pratap Patil (Warkhedekar) Age - 40 years, Occ - Agriculture R/o Udesing Anna Gurha Nirman Society, Dhule road, Chalisgaon, Taluka - Chalisgaon District - Jalgaon 12.

Hirakan Nanabhau Patil, Age - 55 years, Occ - Household R/o Kherde, Post - Lonaje, Taluka - Chalisgaon, District - Jalgaon 13.

Sunanda Deoram Patil, Age - 49 years, Occ - Household R/o At post Goradkhede, Taluka - Pachora, District - Jalgaon 14.

Mangal Yuvraj Patil, Age - 46 years, Occ - Household R/o At post Ronje, Taluka - Erandol District - Jalgaon 15.

Vilas Ramesh (Shravan) Kadekar, Ag e- 37 years, Occ - Agriculture R/o At Post Warkhede (Bk) Taluka - Chalisgaon District - Jalgaon 16.

Krushna Prabhakar Chudhari, Age - 32 years, Occ - Agriculture

{13} R/o At Post Londhe, Taluka - Chalisgaon District - Jalgaon 17.

Sandeep Ratilal Chaudhari, Age - 28 years, Occ - Agriculture R/o Londhe, Taluka - Chalisgaon District - Jalgaon 18.

Kailas Himmat Patil, Age - 35 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon District - Jalgaon 19.

Deelip Eknath Patil, Age - 37 years, Occ - Agriculture R/o Chinchagavan, Taluka - Chalisgaon District - Jalgaon 20.

Ramesh Raghunath Rathod, Age - 35 years, Occ - Agriculture R/o Londhe (Krushnapuri) Taluka - Chalisgaon, District - Jalgaon 21.

Meena Keshav Patil, Age - Adule, Occ - Agriculture / Household R/o Warkhede, Taluka - Chalisgaon District - Jalgaon .......

Mr. Sanket S. Kulkarni, Advocate for the petitioner Mr. Shailesh P. Brahme, Advocate for respondent No.1 .......

[CORAM : SUNIL P. DESHMUKH, J.] DATE : 29 th APRIL, 2016 ORAL JUDGMENT :

Rule. Rule made returnable forthwith and heard finally with

{14} consent of learned advocates for the appearing parties. 2.

At the outset, Mr. Brahme, learned advocate appearing for petitioner in writ petition No.4442 of 2016 on instructions seeks leave to delete respondents No.2 to 21. Leave granted at the risk and peril of the petitioners.

Both these petitions have been moved against a common order dated 21st March, 2016 passed on Exhibits-611 and 613 in Regular Civil Suit No.313 of 1976. Writ petition No.4442 of 2016 has been filed by defendant No.9 in the suit, whereas writ petition No.4778 of 2016 has been filed by the plaintiff. By common order on Exhibits-611 and 613, Joint Civil Judge, Junior Division, Chalisgaon has partially allowed application Exhibit-611 permitting to lead secondary evidence of certified copy of a sale deed filed as document No.4 pursuant to a list appended to Exhibit-595. [Said document is referred to at serial No.1 in the table contained in the impugned order] Consequently, rest of the requests under application Exhibit-611 for allowing to lead secondary evidence in respect of documents from serial No.2 to 6 as have been referred to in table appearing in the order, stand rejected. As far as application Exhibit-613 is concerned, it has been rejected. None of the petitioners have challenged order on

{15} Exhibit-613. As such, both writ petitioners are considered together for decision by this common order.

Writ petition No.4442 of 2016 at the instance of defendant No.9 is against dis-allowance of leading secondary evidence in respect of documents at serial No.3 to 6 in the table appearing in the impugned order, whereas, writ petition No.4778 of 2016 is against allowance of application Exhibit-611 to the extent permitting defendant No.9 to lead secondary evidence in respect of document No.4 from the list appended to Exhibit-595. [Said document is referred to at serial No.1 in the table contained in the impugned order] 4.

After hearing learned advocates for the parties, the position which emerges is that the suit has been instituted by the plaintiff seeking partition, possession and injunction in respect of the properties referred to in the plaint. Whereas defendant No.9 resisted the suit contending that the same being not tenable for non inclusion of all the properties viz., the ones which have been purchased from the income of joint family property. According to defendant No.9, said properties were as per the list appended to Exhibit-595 and that the originals of the documents could not be procured despite efforts. The plaintiff,

{16} despite order for production of original sale deeds of properties which were purchased by the plaintiff and also the ones in the name of his wife and sons, had failed to produce originals on record, filing fallacious affidavit before the court and as such, application Exhibit-611 had been moved for allowing defendant No.9 to lead secondary evidence in respect of aforesaid documents and application Exhibit-613 had been moved for taking action for willful disobedience of the order of the court. Petitions are not concerned with order on application Exhibit613. 5.

The plaintiff had filed say to Exhibits-611 and 613 stating that the applications are false and frivolous. In his affidavit he has submitted that he is not in possession of documents of sale in favour of his wife and sons, whereas documents at serial No.4 in the list appended to Exhibit-595 may be in his possession. 6.

While deciding application Exhibits-611 and 613, the court has recorded events as they occurred, in paragraph No.7 of the impugned order viz., "7.Before I embark further, it is necessary to make reference to the other applications and details of proceeding which took place in the present matter. It has direct bearing on the merits of present application. Defendant No.9 had also filed application below Exhibit-591 and 953 for leading secondary evidence. As the application was vague, this

{17} application (Exhibit-593) was rejected in limine. In the application (Exhibit-591) generalized submission was made that the plaintiff had purchased number of properties from the income of the ancestral property. Again, generalized submission was made that the plaintiff be directed to file the copies of these sale transactions. The details of properties was not mentioned in this application (Exhibit-591). It is further prayed therein that, if, the plaintiff fails to produce, the permission for leading secondary evidence be given. This application (Exhibit-591) was decided to the extent of first part i.e. for production of documents, if any. The plaintiff was called upon to file affidavit in prescribed form. Accordingly, the plaintiff filed affidavit below Exhibit596.

He stated that the documents which are in the name of his sons and wife are not in his possession or power. There is no clear reference about the document mentioned in Sr. No.1 of above table. Nevertheless, it has to be said that there is compliance of the Court order. Furthermore, application (Exhibit-591) was not finally decided to the extent of second prayer of leading secondary evidence. Be as it may, so one thing is very clear that there is no willful non-compliance of the Court order" 7.

The court has taken note of that the document mentioned at serial No.2 in the order had not been placed on record and further went on to consider that as far as documents at serial No.3 to 6 as given in the table appearing at pages No.3 and 4 of the impugned order annexed to the writ petition, were not executed by plaintiff and plaintiff had stated that they are not in his possession and power. The court purported to consider legal provision as contained in sections 58, 65 and 130 of the Indian Evidence Act and had quoted section 65 of the Evidence Act.

{18} The court considered that since the documents from serial No. 3 to 6 given in the table cannot be said to be in power or possession of the plaintiff, application Exhibit-611 seeking permission to lead secondary evidence in respect of those documents is not tenable and since document at serial No.1 from the table is in possession of the plaintiff, request for leading secondary evidence in respect of the same can be considered and as such, went on to allow application Exhibit-611 to the extent of document No.1 from the table and rest of the prayers were rejected.

Mr. Brahme, learned advocate for defendant No.9 vehemently submits that the impugned order fails to take into account full purport of section 65 of the Evidence Act in spite of having been quoted the same, which clearly refers to that secondary evidence of documents would be available, if the original is shown or appears to be in possession or power of any person out of reach or not subject to process of court, taking into account clause (a) of section 65 of the Evidence Act. This particular aspect having been overlooked, the impugned order has been rendered untenable. A valuable right in favour of defendant No.9 is being smothered in the process. He further submits that this is gravely prejudicial to his claims in the suit.

{19} He, therefore, submits that the order ex facie is untenable. 9.

Countering these submissions, Mr. Sanket Kulkarni, learned advocate appearing for the plaintiff submits that looking at the conduct of defendant No.9, who had ample time all through the pendency of the suit, had not moved making such application, however, it is at the fag end of the trial, when the plaintiff had completed his evidence, such an application has been moved. He submits that the impugned order as far as rejection of request in respect of documents at serial No.3 to 6 from the table in the order is concerned is unimpeachable. However, it had been error on the part of the court to allow secondary evidence in respect of document at serial No.1 from the table in the impugned order. He submits that in view of framing of issues, particularly issue No.13, which is in respect of tenability of the suit, having regard to the defence been taken by defendant No.9, suit being not tenable for non inclusion of all the alleged properties, in such a case, the application which has been belatedly moved, should not have been given any regard to and ought to have been rejected straight away.

10.

Although respective parties have argued as aforesaid, law as has been quoted under section 65 of the Evidence Act may

{20} play a significant role in the matter. It is not the case of the parties that the documents at all are non existing. As a matter of fact, certified copies of the documents in the list appended to Exhibit-595 have been produced, save document at serial No.2 from table in the impugned order. It is indisputable position that original sale deeds are not in possession of defendant No.9 and that the proceedings hitherto clearly give an indication that procedure contemplated under sections 65 and 66 of the Evidence Act for production of the originals from the plaintiff in whose possession the documents were, reasonably expected to have been asked to be produced. The court, upon such a request had directed the plaintiff to file affidavit. The plaintiff had filed an affidavit referring to that original of document at serial No.

1 is in his possession, however, originals of documents No.2 to 6 are not in his possession. In the circumstances, it emerged that existence of documents is not disputed and the situation would be covered by section 65 sub section (a) of the Evidence Act, wherein said document appears to be out of reach of defendant No.9 and in possession of persons, who are not subject to the process of the court.

{21} possession and power of the plaintiff and thus request of permitting to lead secondary evidence cannot be considered. 11.

However, looking at the provisions of section 65 of the Evidence Act itself, the consideration by trial court appears to be half-way. The application Exhibit-611, therefore, will have to be considered keeping in view the provisions of section 65 of the Act and the object underlying the same. The reason which has detained the court from refusing to accede to the request of secondary evidence of documents at serial No.3 to 6 appears to be incongruous with the provisions of law. Application Exhibit611, therefore deserves a positive consideration and deserves to be allowed.

12.

In view of aforesaid consideration, request being made under writ petition No.4778 of 2016 is difficult to be considered. Writ petition No.4778 of 2016, therefore, stands dismissed. Rule stands discharged in the same.

13.

Application Exhibit-611 in Regular Civil Suit No.353 of 1976 pending before Civil Judge, Junior Division, Chalisgaon stands allowed in respect of documents at serial No.1 and 3 to 6 as given in the table at pages No.3 and 4 in the impugned order. Writ petition No.4442 of 2016, as such, stands allowed. Rule is

{22} made absolute in terms of prayer clause "D" to aforesaid extent. 14.

Having regard to that the suit is of 1976, it would be expedient that the same would be proceeded with expeditiously. [SUNIL P. DESHMUKH, J.] drp/wp4442-16