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28-SA-82-221 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO. 83 OF 2022WITHCIVIL APPLICATION NO. 2320 OF 2022 IN SA/83/2022Fulchand Chintaman Prabhune And Others… AppellantsVERSUSSumitra Revchand PrabhuneAnd Others… Respondents......Ms. M.A. Kulkarni, Advocate for AppellantsMr. V.B. Jadhav, Advocate for Respondents...... [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 10th JUNE, 2024 ORDER :1.By this second appeal, original defendants havechallenged the judgment and decree passed by learned 2ndJoint Civil Judge, Senior Division, Ahmednagar in Regular CivilSuit No.570/1999 and judgment and decree passed by learnedDistrict Judge, Ahmednagar in Regular Civil AppealNo.110/2013.2.Respondents/plaintiffs filed suit for partition,separate possession and for mesne profits. Ananda Prabhunewas the ancestor of plaintiffs and defendants. He had two sonsRevchand and Chintaman. Plaintiff no.1 is wife of RevchandS.P. Rane 1 of 8 28-SA-82-222 and plaintiff Nos.2 to 6 are the children. Defendant Chintamanis brother of Revchand and defendant Nos.2 to 6 are sons ofChintaman and nephews of Revchand. Agricultural landdescribed in para No.1-F and 1-H situated within the limits ofPimpalgaon Malwi, Taluka and District-Ahmednagar are thesubject matter of the suit. 3.Plaintiffs claimed that suit properties are ancestralproperties of plaintiffs and defendants and they have halfshare in the suit properties. Defendants are in possession ofsuit properties and they were taking income from it.Defendants are not giving any income of the suit properties toplaintiffs. Hence, they instituted the suit for partition,possession and mesne profit. 4.Defendant Nos.4 to 6 by filing written statementresisted the suit. The said written statement is adopted bydefendant Nos.1 to 3. Defendants denied the relationship.They claimed that plaintiff no.1 is not legally wedded wife ofRevchand, and Revchand married with Babita as per Christianrites. Babita has two daughters from Revchand. Out of two,one is married and another is unmarried. Defendants claimedthat plaintiff Nos.1 to 6 are not legal heirs of Revchand. Theyalso denied that suit properties are ancestral properties orS.P. Rane 2 of 8 28-SA-82-223 joint family properties. They denied that plaintiffs have halfshare in the suit properties. They claimed that Revchand wasresiding out of village for service. For more than 50 years, hehad not visited the suit properties. Since more than 50 years,defendants are in possession of suit properties, and therefore,alternatively they claimed that they become owner of the suitproperties by adverse possession. They also claimed that GatNo.465, 917/1, 917/2 and 59 were having old surveyNos.410/3 and 444/1. These lands are Mahar watan lands anddefendant no.1 alone had deposited amount for re-grant on24.01.1967. Therefore, Revchand has no right in the suitproperties. 5.Trial Court framed issues and recorded evidence ofboth the parties and partly decreed the suit. It was declaredthat plaintiff No.1 to 6 together have half share in theagricultural suit properties and defendant Nos.1 to 6 togetherhave half share in the suit land. Plaintiffs were held entitled forseparate possession of their share. Precept was directed to besent to the Collector, Ahmednagar as per section 54 of theCode of Civil Procedure for effecting partition. Direction isissued to conduct separate inquiry under Order 20 Rule 12 ofthe Code of Civil Procedure for mesne profit. S.P. Rane 3 of 8 28-SA-82-224 6.Being aggrieved by the Trial Court’s judgment anddecree, defendants unsuccessfully challenged it by filingRegular Civil Appeal No.110/2013. 7.Heard learned advocate for appellants and learnedadvocate for respondents. Perused the record, written notes ofarguments and citations relied upon by appellants. 8.Learned advocate for appellants strenuouslysubmitted that plaintiff no.1 is not legally wedded wife ofdeceased Revchand. On her behalf, power of attorney holderwas examined, who had no special knowledge about hermarriage with deceased Revchand. Hence, his evidence oughtto have been discarded by the Trial Court and the AppellateCourt. Further submission is, the share determined by theCourt below is contrary to section 33 of the Indian SuccessionAct. The suit is barred under section 27 of the IndianLimitation Act. Both the Courts below have erred in notframing of issue in respect of Mahar watan land. Section 5 ofthe Maharashtra Inferior Watan Act prohibits partition withoutpermission of the Collector. According to her, in terms ofsection 33 of the Indian Succession Act, 1/3rd share will go tothe mother/widow and 2/3rd share will go to the daughters,S.P. Rane 4 of 8 28-SA-82-225 sons and children of Ananda, as such, plaintiff if held to belawful wife of Revchand, she will get 1/3rd share out of 2/3rdshare, which comes to 1/9. According to her, shares are notproperly determined by the Court below. In support of hersubmissions, she relied on Janki Vashdeo Bhojwani andAnother Vs. Indusind Bank Ltd. And Others, (2005) 7 SCC 217and Shankar Shridharrao Deshmukh Vs. VyankateshShankarrao Deshmukh and Others, 2007(1) Mh.L.J. 541. 9.Per Contra, learned advocate forrespondents/plaintiffs supported both the judgments. Hesubmitted that findings of fact recorded by both the Courtsbelow are not liable to be interfered in the present matter. Hesubmitted that plaintiff no.1 is getting family pension ofRevchand Prabhune. After the death of Revchand, heirshipcertificate was issued in favour of plaintiffs by the competentauthority. He further submitted that plaintiffs and defendantsare descendants of Ananda, who in his life time partitioned theproperties between Revchand and Chintaman. Mutation entriesto that effect are brought on record. There is no substantialquestion of law involved in the present second appeal andhence the appeal is liable to be dismissed with costs. S.P. Rane 5 of 8 28-SA-82-226 10.Though the defendants have contended thatRevchand had married with Babita, but defendants have failedto substantiate the said contention by leading cogentevidence. On the other hand, plaintiffs have produceddocuments i.e. Exhibit-81, the certificate issued by Bank ofMaharashtra showing that Smt. Sumitra Revchand Prabhune isreceiving family pension of late Revchand Ananda Prabhune.Exhibit-75, certificate dated 14.06.1985 issued by GramPanchayat showing that Saraswati Dhavare had married withRevchand Ananda Prabhune. At Exhibit-78, plaintiffs haveproduced heirship certificate issued by competent authority,which shows that plaintiffs are legal heirs of RevchandAnandrao Prabhune. In the death certificate of Revchand(Exhibit-79) name of plaintiff no.3 is mentioned as SunilRevchand Prabhune. Plaintiffs have also produced copy ofmutation entry No.3548 by which names of plaintiffs weremutated in the 7/12 extract of suit properties. Therefore, thereis sufficient evidence on record to show that plaintiffs are legalheirs of Revchand Ananda Prabhune. 11.Plaintiffs have also placed on record mutation entryNo.3768 (Exhibit-73), which shows that Ananda, father ofRevchand had filed application on 15.08.1958, therebyS.P. Rane 6 of 8 28-SA-82-227 allotting the suit properties to the share of Chintaman andRevchand. Accordingly, mutation entry no.3548 (Exhibit-72)was effected. 7/12 extract of the suit properties in whichnames of plaintiffs are mutated to the suit properties are alsobrought on record by plaintiffs. 12.In view of the fact that parties are Indian Christian,as per section 33 of the Indian Succession Act, trial Court hasheld that, kindred have equal share in the property and henceplaintiffs have proved that Revchand and Chintaman have halfshare each. Therefore plaintiffs and defendants were awardedhalf share. 13.It appears from the record that issue of adversepossession was not pressed into service by the defendants inthe trial Court. 14.Considering the aforestated evidence on record, trialCourt is justified in passing the impugned judgment anddecree by recording cogent reasons. 15.Appellate Court has confirmed the findings of factrecorded by the trial Court and has observed that thestatements of plaintiffs’ power of attorney and defendant No.1are equally on oath. But, the plaintiffs’ case is supported bydocumentary evidence of mutation entries, heirship certificateS.P. Rane 7 of 8 28-SA-82-228 and certificate of pension in favour of plaintiff No.1. Both theCourts have rightly come to a conclusion that suit propertiesare ancestral properties and defendant No.1 and Revchand,and after the death of Revchand, plaintiffs inheritedRevchand’s share. 16.There is no illegality or perversity in both thejudgments. No error of law or jurisdictional error is committedby Courts below. No case is made out by appellants tointerfere in concurrent findings of fact recorded by both theCourts below. There is no substantial question of law involvedin the present second appeal. The second appeal sans merit isdismissed. No order as to costs. 17.Accordingly, civil application also stands disposed of. [NITIN B. SURYAWANSHI ] JUDGE S.P. Rane 8 of 8