High Court

Legal Reasoning

1 sa 185.17IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 185 OF 2017Dagdu Gujaba MaratheSince deceased through his L.Rs.Sandip Asaram Marathe and others.. AppellantsVersusManik Narayan MaratheSince deceased through his L.Rs.Santram Manik MaratheSince deceased through his L.Rs.Shobha Santram Marathe and others.. RespondentsShri Mukul S. Kulkarni, Advocate a/w Shri N. B. Patekar, Advocate for the Appellants.Shri A. R. Devkate, Advocate for the Respondent Nos. 2/A to 2/C, 3 to 6, 10 and 11.CORAM :SHAILESH P. BRAHME, J. DATE :23RD SEPTEMBER, 2025.FINAL ORDER :.Heard both sides.2.Appellant Nos. 1 and 11, who are original plaintiffs havefiled present second appeal being non suited by both the Courtsbelow in R.C.S. No. 344 of 2005 for partition and possession.Remaining appellants are supporting their claim. RespondentNos. 1 to 12 are the defendant Nos. 1 to 12 and remainingrespondents are purchasers. 2 sa 185.173.Plaintiffs filed R.C.S. No. 344 of 2005 for partition andpossession stating that Narayan is the prepositus, who had twosons namely Gujaba of whom plaintiffs are lineal descendantsand Manik of whom defendants are lineal descendants. It isstated to be joint Hindu undivided family having number oflands and the houses. It is contended that mutation entry Nos.609, 749, 1221 are taken illegally. They claimed to have halfshare in the suit properties. Defendant No. 1 is stated to haveallotted share to his daughter-in-law in compromise effected inR.C.S. No. 64 of 2005. The allotment of the half share to thedefendant No. 1 was towards family arrangement. They claimed½ share in suit properties.4.Defendant Nos. 1 to 11 contested the suit on the groundthat Narayan had partitioned the properties and allotted sharesto both of his sons. More area was allotted to the defendantsbecause of low quality of lands. The sharers were cultivatinglands separately and there was interse partition amongst thedescendants. Defendant No. 1 had partitioned his land to his sixsons. In R.C.S. No. 64 of 2005 filed by daughter-in-law ofpredeceased son, share was required to be allotted. Themutations were also effected in pursuance of the partition andwhich were not challenged by the plaintiffs or their descendants.It is further contended that there were alienations of the landsafter allotment of shares.5.Defendant Nos 13 to 19 admitted claim of plaintiffs. The 3 sa 185.17suit proceeded ex-parte against couple of defendants.6.Parties adduced oral and documentary evidence. Themutation entries namely 609, 749 and 1221, revenue record andsale deeds were placed on record. Trial Court held that there isalready partition in the family and both the branches are inoccupation of the shares. It has also been recorded that there isinterse partition amongst members of a branch. There arealienations by the sharers. The suit was dismissed videjudgment dated 06.01.2011. The findings recorded above areupheld in R.C.A. No. 21 of 2011 vide judgment dated 07.01.2017.7.Learned counsel for the appellants Mr. Mukul Kulkarnisubmits that there is absolutely no evidence to show that therewas partition between Gujaba and Manik, sons of Narayan. Thesuit lands are divided and permitted to be occupied by plaintiffsand the defendants through their descendants as a familyarrangement. It is further submitted that both Courts belowhave committed patent illegality in holding that Narayanpartitioned joint family properties between his sons during hislife time. It is further submitted that revenue record and thealienations by the members of the family would not constituteseparation by metes and bounds.8.Learned counsel further submits that the record of theceiling proceedings was not properly appreciated by the TrialCourt. The statement of the defendant No. 1 recorded on 4 sa 185.1726.05.1977 would show the jointness. It is further submittedthat application Exhibit 149 submitted by the defendant No. 1was wrongly rejected by the Trial Court and the opportunity wasdenied.9.Per contra, learned counsel Mr. Devkate appearing forsome of the respondents submits that both the Courts below havetaken plausible and reasonable view considering documentaryevidence. The concurrent findings of facts recorded by the Courtsbelow cannot be said to be perverse or illegal. It is furthersubmitted that the factum of partition has been established byvoluminous evidence like revenue record, cross examination ofplaintiffs witnesses, alienations by the members of the familyand procurement of loan by the members of the family. It isfurther submitted that even if the record of ceiling proceedings istaken into account, the view taken by Courts below cannot beupset.10.I have considered rival submissions of the parties. Thecrucial question which needs adjudication is as to whether therewas earlier partition between two sons of Narayan. Parties haveadduced documentary evidence in the form of revenue record andsale deeds. Plaintiffs have produced certain documents afterrecording of evidence, which are part of ceiling record. 11.It reveals from record that mutation entry No. 609 (Exhibit45) was effected on 17.06.1986 disclosing partition on the basis of 5 sa 185.17partition deed between plaintiff No. 1 and plaintiff No. 2.Mutation entry No. 749 (Exhibit 46) was effected on 15.10.1999showing partition amongst plaintiff No. 1 – Dagadu and his sons.Mutation entry No. 1221 (Exhibit 47) is effected on 16.08.2005indicating distribution of the lands amongst the parties to R.C.S.No. 64 of 2005. Since 1986 the mutation entries are in recordand till this date they are not challenged by any of the parties.12.Long standing mutation entries have presumptive valueand those are relevant piece of evidence to show the partition.Learned counsel Mr. Devkate has rightly relied on the judgmentof the Supreme Court in the matter of Digambar Adhar Patil Vs.Devram Girdhar Patil (Dead) and another reported in 1995 Sup. (2) SCC 428.It’s para No. 5 is relevant. The presumption has not beenrebutted by the appellants. A stray reference to the statementdated 26.05.1977 recorded in ceiling proceedings is not sufficientto rebut the presumption. Mr. Devkate has rightly relied on thejudgment dated 10.07.2017 of the Coordinate Bench inSecond Appeal No. 471 of 2003 in the matter of RadhabaiPundlik Makone and others Vs. Girjabai RajaramLuhudkar and others. In this regard further reference to thejudgment of the Supreme Court in the matter of Kesharbai @Pushpabai Eknathrao Nalawade (Dead) by L.Rs. and another Vs. TarabaiPrabhakarrao Nalawade and others reported in (2014) 4 SCC 707 alsosupports the defendants.13.My attention is adverted to cross examination of plaintiffs 6 sa 185.17witness Haribhau. In the cross examination he admitted thatlands were separately given to Manik and Gujaba and theplaintiffs were residing separately. He has specifically admittedthat the lands were allotted by partition to himself, his realbrother Dagdu and Manik. The denials of alienations of land byDagdu to Gahininath and further alienation of 08 Acres of landto Inaarcom Company are false. Next witness of plaintiff,Raosaheb has clearly admitted that Dagdu sold land toGahininath. Haribhau sold land to Bhausaheb and Haribhaufurther sold land to Bhanudas and Dashrath. Further it isadmitted that Balu and Sampat sold land to Dashrath andfurther Haribhau and Dashrath sold land to InaarcomCompany.14.From the depositions of the witnesses of the plaintiffs aninference can be drawn that members of the family havealienated lands fallen to their shares. Nobody questioned thealienations. This piece of evidence is very relevant and clinchingto indicate their separation. Following alienations made by themembers of the family are eloquent in this regard.Sr. No.VendorPurchaser01.Defendant No. 3 - BalasahebGahininath MaratheDashrath MaratheInaarcom CompanyVandana AkolkarBhivsen Jadhav02.Dattu – son of plaintiff No. 2Bhau Marathe 7 sa 185.17Bhivsen MaratheInaarcom Company03.Defendant No. 1 – ManikSuresh Sakhare – Deft.No. 2204.Bhausaheb, Son of plaintiffNo. 1Gahininath05.Haribhau, Plaintiff No. 2Bhausaheb Marathe06.Dagadu, Plaintiff No. 1Bhausaheb JadhavDashrath JadhavInaarcom Company.15.Both the Courts below have taken into account all thealienations referred above in coming to the conclusion that thereis partition in the family and members were allotted theirshares. Even financial assistance was also availed of by them. Ido not find that there is any perversity or patent illegality so asto need interference by this Court.16.Defendants have placed on record adequate and clinchingmaterial to indicate partition in the family. As against thatthere is absolutely nothing on record to show that family is stillundivided. The position when ceiling proceedings wereundertaken in 1977 might not have been continued. Onpreponderance of probabilities the case is made out byrespondents. Besides the mutation entries referred above,Khasara Patrak Exhibit 48 to 68, 7/12 and 8A extracts Exhibit26 to 44 and Exhibit 6 to 25 are indicative of the independentholding and cultivation, which is rightly appreciated by the 8 sa 185.17Courts below.17.I do not find any merit in the submissions of the learnedcounsel for the appellants that there was no partition duringlifetime of Narayan. A stray reference of admission in the crossexamination of defendants witness Laxman that after death ofNarayan, Manik and Gujaba were jointly cultivating the lands isnot sufficient to show jointness. Considering material on recordit can be safely concluded that there was already partition.Application Exhibit 149 submitted by the defendant No. 13 wasrejected by the Trial Court on 26.11.2010. The reasons assignedfor rejecting the application cannot be faulted. It is far fetched tocontend that opportunity was not given for adducing theevidence.18.I do not find that any substantial question of law involvedin the second appeal. Second appeal is dismissed.19. After pronouncement of the judgment, the learned counselfor the appellants prays for continuation of interim relief.20. Interim relief is in respect of injunction from creating anythird party interest. It is in operation till today. The same shallremain in operation for further four weeks. [ SHAILESH P. BRAHME J. ] bsb/Sept. 25