Judgment · High Court · 2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD988 SECOND APPEAL NO. 103 OF 2024Bismillabe Nasibkha PathanVERSUSShaikh Babamiya Shaikh Ahemad...Mr. Krushna Solanke for the Appellant.Mr. Sanjay D Hiwrekar for the Respondent....CORAM :SIDDHESHWAR S. THOMBRE, J. DATE :25 JUNE 2026P. C.:1.Heard learned counsel for the parties.2.By the present Appeal, the Appellant assails the order dated 16thMarch 2022, passed by District Judge 1, Ambad in RCA No.144 of 2021 (oldRCA No.166 of 2018) whereby the Appeal filed by Respondent came to beallowed and the order dated 7th August 2018, passed by Jt. CJJD, Ghansawangi in RCS No.6 of 2015 came to be quashed. 3.Mr. Solanke, learned counsel for the Appellant submits that the nameof present Appellant-Original Defendant came to be recorded in theownership column of 7/12 extract on the basis of a partition deed executedby the present Respondent. He submits that the Respondent-OriginalPlaintiff filed a suit for declaration and possession of land Gat No.49 to theextent of 40R out of 9 Hector 37R land situated at village Kandari Ambad, Tq. Ghansavangi, Dist. Jalna. In pursuance of suit summons the Appellant-Original Defendant appeared but failed to file written statement. Hence, theShubham Page 1 of 4 988-SA-103-2024.docsuit proceeded without written statement of the present Appellant. The suitcame to be dismissed but the learned Appellate Court allowed the Appealfiled by the present Respondent-Original Plaintiff whereby suit was decreedand the present Appellant was directed to handover the possession. 4.The learned counsel for the Appellant further submits that the land inquestion was allotted under sealing in favour of father of the Respondent-Original Plaintiff. After the demise of father of Respondent-Original Plaintiff, the property was partitioned amongst siblings and the land in question wasallotted to the present Appellant-Original Defendant. Pursuant to the saidpartition deed, the present Appellant was put in possession of the suitproperty and her name was also mutated in the 7/12 extract in theownership column. Based on the partition deed and mutation entry, thelearned Trial Court dismissed the Suit but the Appellate Court reversed theorder and decreed the Suit on the ground that the partition deed was anunregistered document and the same was hit by Section 17 of theRegistration Act, 1908. the Appellate Court further recorded finding thatmutation entry is recorded only for fiscal purpose and it does not create anytitle. Learned counsel further submits that the Appellant-Original Defendantcould not file written statement before the Trial Court hence to grant him anopportunity to defend the matter on merits, the present matter needs to beremanded to the Trial Court. 5.Per contra, Mr. Hiwrekar, learned counsel for the Respondent submitsShubham Page 2 of 4 988-SA-103-2024.docthat the present Appellant has no locus to challenge the impugned orderpassed by the Appellate Court. The Appellant-Original Defendant is not inany way related to the original land owner i.e. father of Respondent-OriginalPlaintiff and the theory of partition deed putforth is completely bogus. Hefurther submits that the Appellate Court has rightly held that anunregistered partition deed cannot be considered to mutate the name ofpresent Appellant in revenue record. Even if so considered for the sake ofargument, the revenue record does not create or take away title. Therefore, he supports the order passed by learned first Appellate Court. In support ofhis contention he relies upon the law laid down by this Court in Nalini Vs.Girdhar Kashinath Patil & Ors. (MANU/MH/0669/2001) and the law laiddown by the Hon’ble Apex Court in Narayan Laxman Patil Vs. M/s. GalaConstruction Company Private Limited & Ors. (2015 AIR SCW 6333) bycontending that in the present Appeal no substantial questions of law areinvolved.6.I have heard learned counsel for the parties and gone through thesubstantial questions of law framed by the Appellant-Original Defendant. Itis clear that the case of Appellant-Original Defendant is based upon apartition deed which was unregistered. The Appellant-Original Defendantmutated her name in the 7/12 extract on the basis of said unregisteredpartition deed. The first Appellate Court has rightly held that anunregistered partition deed is hit by Section 17 of the Registration Act, 1908Shubham Page 3 of 4 988-SA-103-2024.docand the said deed cannot be utilized for mutation of her name in therevenue record. Even the mutation entry does not confer or take away thetitle of the Respondent-Original Plaintiff. Upon going through the record andthe submissions advanced, I am of the opinion that no substantial questionsof law is involved in the present Appeal and the Appellate Court has rightlydecided the matter. Therefore, I pass the following order:-O R D E Ri.Second Appeal is dismissed.ii.No order as to costs.iii. Pending Civil Applications, if any, stand disposed of. [SIDDHESHWAR S. THOMBRE, J.]Shubham Page 4 of 4