Bombay High Court
Case Details
2025:BHC-AUG:19212 1 SA.364-21.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.364 OF 2021 Bhaktiram S/o Vishram Rathod, Since deceased through his L.Rs. 1. 2. 3. 4. 5. 6. 7. Yashoda w/o Bhaktiram Rathod, Age: 80 years, Occu.: Household, R/o: Bus Stand Road, Parbhani, Taluka and District: Parbhani. Pravin s/o Bhaktiram Rathod, Age: 58 years, Occu.: Business, R/o: as above. Nitin s/o Bhaktiram Rathod, since deceased through his L.Rs. 3-A] Jayashree w/o Nitin Rathod, Age: 50 years, Occu.: Household, R/o: as above. 3-B] Manasi d/o Nitin Rathod, Age: 21 years, Occu.: Education, R/o: As above. Rajesh s/o Bhaktiram Rathod, Age: 54 years, Occu.: Business, R/o: As above. Paresh s/o Bhaktiram Rathod, Age: 52 years, Occu.: Business, R/o: As above. Girish s/o Bhaktiram Rathod, Age: 50 years, Occu.: Business, R/o: As above. Amita d/o Bhaktiram Rathod, Amita w/o Manish Chavara, Age: 48 years, Occu.: Household, R/o: Village Bagratawa, Taluka: Babai, District: Hoshangabad, (Madhya Pradesh State). 2 SA.364-21.odt 8. Yogesh s/o Bhaktiram Rathod, Age: 46 years, Occu.: Business, R/o: Bus Stand Road, Parbhani, Taluka and District: Parbhani. Versus 1. Amrutlal s/o Vishram Rathod, Since deceased through his L.R.s- … Appellant/s. 1-A] Dhangauri w/o Amrutlal Rathod, Age: 88 years, Occu.: Household, 1-B] Kiran s/o Amrutlal Rathod, Age: 63 years, Occu.: Business, 1-C] Manoj s/o Amrutlal Rathod, Age: 62 years, Occu.: Business, 1-D] Satish s/o Amrutlal Rathod, Age: 59 years, Occu.: Business, 1-E] Pradip s/o Amrutlal Rathod, Age: 58 years, Occu.: Business, 1-F] Hemant s/o Amrutlal Rathod, Age: 55 years, Occu.: Business, 1-G] Bhavana w/o Ratilal Vigad, Age: 53 years, Occu.: Household, 1-H] Bharti w/o Dinesh Chawada, Age: 53 years, Occu.: Household, All above R/o: Jail Road, Kenjhar, P. S. Town, District: Keonjah, (Orissa State), Through General Power of Attorney, Ishwarlal s/o Vishram Rathod (Respondent No.3) 2. Jayantilal s/o Vishram Rathod, Since deceased through his L.Rs. 2-A] Pushpa w/o Jayantilal Rathod (abated), Age: 78 years, Occu.: Household, 3 SA.364-21.odt R/o: Bus Stand Road, Parbhani, Taluka and District: Parbhani. 3. Ishwarlal s/o Vishram Rathod, Since deceased through his L.Rs. 3-A] Chandralekha w/o Ishwar Lal Bhai Rathod, Age: 77 years, Occ: House Wife, R/o. Sai Kripa, Near Thosar Granthalaya, Smarth Nagar, Tq. & Dist. Aurangabad. 3-B] Mahesh s/o Ishwar Lal Bhai Rathod, Age: 45 years, Oce: Self employed, R/o. Flat No.S1, Building B1, Tejovalay Society, Near Cipla Foundation, Warje, Tq. & Dist. Parbhani. 3-C] Pramod Bhai s/o Ishwar Lal Bhai Rathod, Age: 53 years, Occ: Service, R/o. Flat No.SI, Building B1, Tejovalay Society, Near Cipla Foundation, Warje, Tq. & Dist. Parbhani. 3-D] Kashmira D/o Ishwarlal Rathod, Age: 45 yrs. Occ. Nil, R/o. Saikripa, Near Thosar Granthalaya, Smarth Nagar, Tq. and Dist. Aurangabad. 4. 5. Manjula w/o Prabhu Chawda, Age: 78 years, Occu: Household. R/o: Sinhgad, Pune, At present residing at Vishnu Nagar, Parbhani, Taluka and District: Parbhani. Usha w/o Shyamji Shyababu Rathod (chavan), Since deceased through her L.Rs. 5-A] Vipul s/o Shyamji Rathod (Chavan), Age: 45 years, Occ: Business, R/o. Railway Colony, Dound, Tq. Dound, Dist. Pune. 5-B] Anand s/o Shyamji Rathod (Chavan), Age: 40 years, Occ: Business, R/o. Railway Colony, Dound, 4 SA.364-21.odt Tq. Dound, Dist. Pune. 5-C] Harsha @ Pinky d/o Shyamji Chavan, Age: 42 years, Occ: Household, R/o. Railway Colony, Dound, Tq. Dound, Dist. Pune. 6. Damyanti w/o Jagdish Chavan, Since deceased through his L.Rs. 6-A] Murlidhar s/o Jagdish Chavan, Age: 42 years, Occ: Service, R/o. Seeta Tower, Bramhan Wadi, Begum Peth, Hyderabad, Tq. Dound, Dist. Hyderabad. (Telangana State). 6-B] Jyoti w/o Pradeep Tank, Age: 46 years, Occ: Household, R/o. Kajaj Nagar, MG. Road, Adilabad, Tq. & Dist. Adilabad, (Telangana State). 6-C] Megharani d/o Jagdish Chavan, Age: 42 years, Occ: Household, Ν Ο . R/o. L.L. LO. Bramhan Wadi, Begum Peth, Hyderabad, Tq. & Dist. Hyderabad, … (Telangana State). -276, Flat No.102, Respondents.
Legal Reasoning
... Advocate for Appellant/s : Mr. Amol Joshi. Advocate for respective Respondents : Mr. S. S. Bharuka. ... CORAM : SHAILESH P. BRAHME, J. 22.07.2025 DATE : JUDGMENT :- 1. Heard both sides. 5 SA.364-21.odt 2. Being aggrieved by judgment and decree dated 23.10.2019 passed in Regular Civil Appeal No.140 of 2016 confirming judgment and decree dated 27.10.2016 passed by Joint Civil Judge Senior Division, Parbhani in Special Civil Suit No.28 of 2012, appellant/original defendant has preferred this second appeal. Respondent Nos.1 to 3 are his real brothers and 4 to 6 are his married sisters. 3. The contest between the parties is in respect of the house at CTS. No.14939 situated at Jintur, District Parbhani. Respondents filed Special Civil Suit No.28 of 2012 for partition, possession and injunction claiming that the suit house is joint family property. It was purchased by their father Vishram Rathod from the income of his business of contractor- ship. As against that, defence of the appellant was that it was his self acquired property. He was having independent source and he had contributed for the purchase of house. A plea of adverse possession was also raised. 4. Respondents adduced oral evidence of one witness. appellant adduced oral evidence of four witnesses. Trial Court decreed the suit holding that it was undivided joint family property of the parties. The siblings are awarded equal shares 6 SA.364-21.odt with further direction of partition by metes and bounds. Lower Appellate Court confirmed the decree. 5. Learned counsel Mr. Amol Joshi for the appellant submits that both the Courts below committed error of jurisdiction in holding that suit house was self acquired property of Vishram when independent source of income of the appellant was established. It is further submitted that undue importance was given to the admission of D.W.2. It is further submitted that City Survey record was corrected at his instance and mutation entry No.3313 was cancelled which supports his case. It is further submitted that cross-examination of P.W.1 and the depositions of D.W.2 and 3 would indicate the potential of the appellant to purchase house. Lastly, it is submitted that D.W.1 categorically stated that suit house was self acquired property of the appellant and in his presence the transaction took place. 6. The submissions of the appellant are repelled by learned counsel for the respondents. It is submitted that City Survey record still shows name of Vishram. Both the Courts below rightly appreciated vital documents namely plaint at Exh.24 of Regular Civil Suit No.13 of 2008 and the oral evidence on record to hold that suit house was purchased by Vishram. It is 7 SA.364-21.odt further submitted that appellant failed to produce any tangible evidence to show that taxes were paid by him or his exclusive name was recorded. It is submitted that in the written statement, plea of adverse possession was taken but at the appellate stage it was waived. 7. I have considered rival submissions of the parties. I have also gone through paper book. Appellant’s and respondents’ father Vishram was having licence of contractor-ship and he had funds to purchase a house. By registered sale deed dated 04.02.1963 suit house was purchased by him exclusively. It is the theory of the appellant that the consideration paid by him but out of respect his name was recorded in the sale deed. 8. When the appellant is coming with a case that suit house is self acquired property. Burden is on him to make out a case for that. Only what is brought on record is his business of contractor-ship. At the most, it can be said that he had independent source of income but there is no material on record to show that he was earning sufficiently and was in a position to purchase the suit house. It has come on record that he was not having licence. 8 SA.364-21.odt 9. Following circumstances are indicative that suit house was purchased exclusively by Vishram. (i) Vishram was a licensed contractor and sale deed shows his exclusive name as a purchaser. (ii) Plaint at Exh.24 of Regular Civil Suit No.13 of 2008 filed by the appellant refers that his father had purchased the plot and constructed rooms. (iii) Appellant had no licence of contractor-ship. (iv) Suit house was purchased in the year 1963 and appellant claimed to have been associated with father since 1959. No material available to show within a short span of four years, appellant was in position to purchase the suit house. (v) In 1964 marriage of his sister was performed. Part of the property was sold by father Vishram. 10. The concurrent findings of facts recorded by Courts below cannot be said to be perverse or illegal. Depositions of D.W.2 and 3 though supporting appellant are not sufficient to make out a case of self acquire property. Neither the admission of D.W.2 regarding notice of income tax would be decisive. I find that appellant failed to discharge the burden. 9 SA.364-21.odt 11. In the written statement, a specific plea of adverse possession was taken by the appellant which was given up in the Lower Appellate Court. Appellant has taken inconsistent stand. Although he had preferred appeal before higher authority for challenging mutation entry No.3313 and it was cancelled, that is not sufficient to hold that his name was exclusively mutated in the record of right. No independent evidence is adduced by the appellant to show that the suit house was purchased by him. I find that no substantial question of law is involved in the appeal. The concurrent findings of facts do not require any interference. Hence, the following order :
Decision
O R D E R (i) Second Appeal is dismissed. (ii) After pronouncement of the order, learned counsel for the appellant seeks continuation of the interim protection as his client is desirous of approaching the Apex Court. (iii) Learned counsel for the respondents opposes the request. (iv) As the interim protection is in force, I propose to extend it for further period of four weeks with a clarification that after expiry of the said period, 10 SA.364-21.odt the same shall stand vacated automatically without reference to the Court. (SHAILESH P. BRAHME, J.) ... vmk/-