BENCH AT AURANGABAD v. Sau. Gangubai & Ors.

submitted that, the trial Court did not frame the necessary issues for its determination. It is 2 sa171.12 submitted that, whether the suit property is joint family property or not?; in that respect, issue has not been framed by the trial Court. It is submitted that, the appellants herein were cultivating the suit land on Batai basis from 1991 till they purchase it from defendant – Kundlik, and therefore, the said issue also required to be referred to the Tenancy Court. Learned Counsel for the appellants invited my attention to para-19 of the trial Court judgment and submitted that, the issue regarding the joint family property was required to be framed and addressed by the Courts below, however, the said issue was not framed. Learned Counsel also invited my attention to the judgment of the lower appellate Court and submitted that, even the lower appellate Court observed that, the necessary issues have not been framed by the trial Court. If necessary issues were not framed by the trial Court, in that case, the matter should have been remanded by the lower appellate Court to the trial Court for fresh trial. Therefore, according to the Counsel for 3 sa171.12 the appellants, the second appeal deserves consideration. Learned Counsel for the appellants also invited my attention to the grounds taken in the second appeal and submitted that, the second appeal deserves consideration.

2. On the other hand, learned Counsel appearing for respondent Nos.1 and 3 i.e. original plaintiff and original defendant No.4 respectively submits that, Babaibai – mother of Gangubai, Kundlik and Subhadrabai inherited the suit property from her father. Names of Gangubai, and Subhadrabai were entered in 7/12 extracts, in other rights column. Therefore, both the Courts below considering the provisions of Section 15 of the the Hindu Succession Act, 1956 have rightly reached to the conclusion that these three legal heirs i.e. Gangubai, Kundlik and Subhadrabai are entitled for 1/3rd share each in the suit property. Therefore, according to the Counsel for the respondents, the second appeal is devoid of any merits and same may be dismissed. 4 sa171.12

3. I have given due consideration to the rival submissions. Since both the Courts have held that, the plaintiff is entitled for 1/3rd share in the suit property upon appreciation of evidence, it is not necessary to burden this order by reproducing the findings recorded by the Courts below.

4. From perusal of the issues framed by the trial Court, it appears that the trial Court framed as many as four issues for its consideration/determination. The first issue was in respect of whether the plaintiff is entitled for 1/3rd share in the suit field?, second issue was in respect of whether the plaintiff is entitled for partition in the suit field? and third was whether the plaintiff is entitled for declaration that the sale deeds dated 02-07-1994 are invalid and not binding upon her. Necessary issues were framed by the trial Court. 5 sa171.12 . Certain admitted facts are stated by the trial Court in para-15 of the judgment wherein it is stated that, Babaibai was alone daughter of her father. She was absolute owner of the suit field property. She died on 29-08-1991. Defendant No.1 Kundlik is brother of plaintiff and defendant No. 4 Subhadrabai and Babaibai was their mother. Defendant No. 4 Subhadrabai married to one Jagannath Bhalerao. Description of the suit property is also admitted fact. Therefore, on these admitted facts, the trial Court proceed to hold that, Babaibai was absolute owner of the suit property and Gangubai, Kundlik and Subhadrabai being legal heirs of said Babaibai are entitled for 1/3 share each. Relationship between the parties is also not in dispute. Therefore, the contention of the Counsel for the appellants that, other issues are not framed and therefore, the second appeal deserves consideration, has no merits. Necessary issues were framed and the trial Court upon appreciation of the evidence, reached to the correct conclusion. The trial 6 sa171.12 Court has also considered the relevant provisions including the provisions of Section 15 and 16 of the Hindu Succession Act, 1956 in para-30 of the judgment and after appreciating the evidence brought on record and also the law provisions, the trial Court came to the conclusion that, the plaintiff is entitled for 1/3rd share in the suit property. The lower appellate Court has reiterated that, the plaintiff is entitled for 1/3rd share and the sale deeds are not binding upon her.

5. The contention of the Counsel for the appellants that, mere non framing of other issues which have no direct bearing on the issue involved, have no consequences. In fact, both the Courts below have taken into account that, Babaibai is absolute owner of the suit property. The husband of Babaibai also died prior to 1991. Therefore, the plaintiff is entitled for 1/3rd share and other legal heirs are also entitled for 1/3rd share each. 7 sa171.12

6. Viewed from any angle, in my considered view, the concurrent findings recorded by the Courts below about the share of the plaintiff in the suit property and she is entitled for partition, is in consonance with the evidence brought on record and therefore, no case is made out for interference. The second appeal is devoid of any merits, same stands dismissed. Consequently, civil applications are rejected. [S.S. SHINDE, J.] sut/MAR12