High Court

Legal Reasoning

118-sa-178-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD18 SECOND APPEAL NO. 178 OF 20221.Radhakishan Rambhau ChakkarAge : 66 Years, Occu. Agril,2.Shrimant Rambhau ChakkarAge : 56 Years, Occu. Agril,3.Datta Radhakishan Chakkar,Age : 41 Years, Occu. Agril,All R/o. : Kolher Tq. GeoraiDist. Beed4.Subhadrabai Rama Khaire,Age : 49 Years, Occu. Agril,R/o. Gundewadi, Tq. Ambad,Dist. Jalna...AppellantsVERSUS1.Nilabai Shivaji ChakkarAge : 56 Years, Occu. Household and Agril,R/o. Kolher, Tq. Georai,Dist. Beed2.Ramesh Shivaji Chakkar (Deleted)3.Nandabai Shivaji Chakkar,Age : 33 Years, Occu. Household,4.Vandana Shivaji Chakkar,Age : 31 Years, Occu. Household and Agril,Respondent Nos. 3 and 4R/o. Kolher, Tq. Georai,Dist. Beed.5.Anuja Ramkrushna Pandav,Age : 54 Years, Occu. Household and Agril,R/o. Shikshak Colony, Georai,Dist. Beed. 218-sa-178-2022.odt6.Kailas Eknath PawarAge : 38 Years, Occu. Agril,7.Arjun Eknath Pawar,Age : 40 Years, Occu. Agril,8.Murlidhar Chimaji Malatkar,Age : 44 Years, Occu. Agril,9.Parvatibai Murlidhar Malatkar,Age : 39 Years, Occu. Agril,Respondent Nos. 6 to 9 R/o. Kolher Tq. Georai, Dist. Beed....Respondents…Kakde Yuvraj V., Advocate for AppellantMahesh R. Bhosale, Advocate for Respondent Nos.1,3 and 4Mr. Yuvraj S. Choudhari Advocate for Respondent Nos.5, 6, 7Mr.Shivraj B. Kadu h/f. Mr. Umesh Mote, Advocate for RespondentNos.8 & 9WITHCIVIL APPLICATION NO. 5027 OF 2022 IN SA/178/2022 CORAM :ROHIT W. JOSHI, J.DATE :10th MARCH, 2025ORAL JUDGMENT.:1.The present appeal is preferred by original defendant Nos.3 to 5and 10 challenging decree for partition and separate possession passedagainst them in First Appeal.2.Respondent Nos.1 to 4 are original plaintiffs who had filed suitfor partition and separate possessions being Regular Civil Suit No.235 318-sa-178-2022.odtof 1997. The dispute pertains to partition of properties of family of oneRambhau Umanji Chakkar/original defendant No.1. His wife, Sonabaiis defendant No.2, defendant Nos. 3 & 4 are his sons, namely,Radhakisan, Shrimant, defendant No.5 i.e. Datta is grandson andDefendant No.10 Subhadrabai is daughter. Defendant Nos.6 to 9 arepurchasers of some of the suit properties. Defendant Nos.6 and 7 havepurchased suit properties bearing Gut Nos.262/1, 262/2 and 263.Likewise, defendant Nos.8 and 9 have purchased suit propertiesbearing Gut Nos.80 and 83. Plaintiff Nos.1 to 4 are widow, son anddaughters respectively of late Shivaji s/o. Rambhau Chakkar. They hadfiled the suit seeking partition and separate possession of severalproperties which form subject matter of the suit. The learned TrialCourt decreed the suit in part vide judgment and decree dated19.12.2014. The learned Trial Court granted a decree for partition andseparate possession with respect to 1/4th share to the plaintiffs withrespect to suit properties bearing block Nos.75, 188, 193, 194, 262/1,262/2 and 263 as also house properties bearing Nos.141 and 5. So faras suit property bearing Gut Nos.27, 192, 80 and 83 are concerned, thesuit came to be dismissed holding that these were self acquiredproperties of defendant Nos.3 and 5.3.It will be pertinent to mention here that Gut Nos.80 and 83 418-sa-178-2022.odtappear to be wrongly included as suit properties, since the family orany member thereof had no concern with the said properties. This factis admitted by all the learned Counsel appearing in the matter. Thedispute remains with respect to land bearing Gut Nos.27 and 192.4.The original defendant Nos.3 to 5 and 10 filed appeal underSection 96 of the CPC being Regular Civil Appeal No.48 of 2016. Theoriginal plaintiffs had also filed a cross-objection with respect to landbearing Gut Nos.27, 192, 80 and 83. The learned First Appellate Courthas vide judgement and decree dated 16.06.2020 dismissed the appealpreferred by the defendant Nos.3 to 5 and 10 and has allowed thecross-objection filed by the plaintiffs with respect to two propertiesbearing Gut Nos.27 and 192. The cross-objection came to be dismissedwith respect to property bearing block Nos.80 and 83. Defendant Nos.3to 5 and 10 have therefore preferred the present Second Appealchallenging the decree passed by the First Appellate Court allowing thecross objection filed by the original plaintiffs whereby decree forpartition and separate possession is passed with respect to land bearingGut Nos.27 and 192. 5.Mr. Yuvraj Kakade, the learned Counsel appearing for theappellant has vehemently argued that the learned First Appellate Courthas committed a manifest error in allowing the cross objection with 518-sa-178-2022.odtrespect to the aforesaid two gut numbers. His contention is that thesaid properties were self-acquired properties of defendant Nos.3 and 5.He contends that the plaintiffs had failed to prove that the family hadsufficient nucleus in order to purchase the said properties which areadmittedly purchased in the names of defendant Nos.3 and 5. Hecontends that although there may be a presumption with respect tojointness of a hindu family, there is no presumption that a joint hindufamily will possess joint hindu family properties. He argues thatpresumption with respect to jointness of properties will arise only whenthere is sufficient proof as regards existence of joint nucleus. He hasplaced reliance on the judgment of the Hon’ble Supreme Court in thematter of D. S. Lakshmaiah and Anr. Vs. L. Balasubramanyam & Anr.reported in AIR 2003 Supreme Court 3800.6.Per contra learned Counsel Mr. Mahesh Bhosale appearing forrespondent Nos.1,3 and 4 opposes the submissions contending that thefamily admittedly had vast stretches of agricultural lands which wereyielding income. The income from these lands was the only source ofincome of the family. He points out from the findings as also frompleadings and evidence that defendant Nos.3 and 5 who claim that thetwo gut numbers were their self acquired property did not have anyindependent source of income. He, therefore contends that since 618-sa-178-2022.odtnucleus in the family is proved and respondent Nos.3 and 5 have failedto prove separate source of income, the only inference that can bedrawn is that although the said gut numbers were purchased in thenames of respondent Nos.3 and 5 they were in fact properties of thejoint hindu family. He justifies the findings recorded by the learnedFirst Appellate Court in view of the aforesaid submissions made by him.7.The learned Counsel for the appellant also points out thatalthough six points have been framed by the learned First AppellateCourt, point numbers 2 and 3 have not been answered. I have perusedthe judgement. Findings with respect to point numbers 2 and 3 arerecorded by the learned First Appellate Court. It is just due toinadvertence that the relevant paragraphs have not been titled asfindings on those points for consideration.8.Having heard the rival submissions as aforesaid and also onperusal of documents and judgments delivered by the learned Courts, Iam of the opinion that the learned Trial Court has not appreciated thecontroversy with respect to properties bearing Gut Nos.27 and 192 in aproper perspective. The learned Trial Court ought to have appreciatedthat the family of the plaintiff and defendant Nos.1 to 5 and 10 hadvast stretches of agricultural lands and these lands were yielding 718-sa-178-2022.odtincome. There is sufficient material on record to infer that the familyhad sufficient nucleus for procurement of the two disputed properties.As against this, it is not the case of defendant Nos.3 and 5 that they hadany independent source of income. Their case is that they had receivedgold jewellery from their in-laws which was sold for procurement ofthese properties. Perusal of the pleadings in the written statement willdemonstrate that particulars in this regard are pertinently missing. Theevidence also does not provide any details as regards the value of thealleged ornaments, the person to whom it is sold, the period when itwas sold. The learned Trial Court has erred in placing reliance onevidence which was completely lacking in material particulars. 9.I have perused the findings recorded by the learned FirstAppellate Court. The learned First Appellate Court has recorded cogentreasons for disbelieving the evidence of the defendant Nos.3 and 5 inthis regard. The learned First Appellate Court has also considered thetentative value of the gold ornaments allegedly sold by the defendantNos.3 and 5 in order to augment fund to purchase the aforesaid twoproperties in their names. The learned First Appellate Court has rightlyheld that even if the version of defendant Nos.3 and 5 is believed, thesale proceeds will be insufficient for purchasing the said two properties. 818-sa-178-2022.odt10.A positive finding is recorded by the learned First AppellateCourt that the family had large stretches of agricultural lands whichwere yielding income. In view of the positive finding recorded by thelearned First Appellate Court, i.e., family did possess sufficient nucleusand defendant Nos.3 and 5 have failed to prove any independentsource of income as also their theory of augmenting funds from sell ofjewellery of their respective wives, I am of the opinion that the issueagitated by the appellant in the present second appeal is based on aquestion of fact. Since I do not find any perversity in the findings, theissue agitated will not give rise to a substantial question of law. In thatview of the matter, I am not inclined to show any indulgence in exerciseof jurisdiction under Section 100 of the Civil Procedure Code. TheSecond Appeal does not give rise to any substantial question of law andis accordingly dismissed.11.In view of the dismissal of the Second Appeal, Civil ApplicationNo.5027 of 2022 stands disposed of. [ROHIT W. JOSHI J.] Narwade/