High Court
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{1} S.A. No.370-2023IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 370 OF 2023WITH CIVIL APPLICATION NO. 8501 OF 2023(1)Mrs. Vandana Gaurihar Ambekar,Age : 56 years, Occ. : Household,R/o. : Land No.6, City Survey No.8395, Gajanan Colony, Jalgaon, Tq. & Dist. Jalgaon … APPELLANT (Ori. Plaintiff)VERSUS(1)Shri. Nandlal Hiralal Bhavsar,Age : 58 years, Occ. : Photographer,R/o. : Gat No.126, Bhikamchand Jain Nagar, Pimprala Road, near Prem Nagar, Jalgaon, Dist. Jalgaon(2)The Commissioner,Jalgaon City Municipal CorporationJalgaon, Dist. Jalgaon … RESPONDENTS (Ori. Defendants)…Mr. Ravibhushan P. Adgaonkar – Advocate for Appellant….CORAM : SANDIPKUMAR C. MORE, J.DATE : 3rd July, 2024ORDER :1.Heard learned Counsel for appellant, who is the originalplaintiff on admission. The present Second Appeal has been filedagainst the concurrent findings of both the learned Courts below.Pooja Kale {2} S.A. No.370-20232.Brief facts of the case are as under :The present appellant being daughter-in-law of KamalabaiRudreshwar Ambekar has filed suit for declaration of herownership right and perpetual injunction in respect of plot No. 6admeasuring 1310 sq. ft. having City Survey No.8395 situated atJalgaon (“suit plot” for short). According to appellant/plaintiff, shefiled Regular Civil Suit No. 304 of 2014 for declaring that theaforesaid suit plot was jointly purchased by her mother-in-law,Kamalabai Rudreshwar Ambekar and Pundalik MahadevAmbekar, cousin father-in-law on 20.09.1973 vide registeredsale–deed. There is no declaration of their respective shares inthe suit plot. Thereafter some construction was made on the suitplot in the year 1975–76. Cousin father-in-law of the appellantdied in the year 1990 and on his death her mother-in-law,Kamalabai Rudreshwar Ambekar became the owner of the entiresuit plot. However, since her cousin father-in-law was not havingany issue, he bequeathed his share in the suit plot to his nephewAshok Keshav Ambekar by way of registered will–deed.Thereafter, Ashok sold the said share to present respondent No.1i.e. original defendant No.1 vide registered sale–deed andaccordingly, got mutated his name in the record of rights of suitPooja Kale {3} S.A. No.370-2023plot on 08.12.1997 and therefore, the present appellant filed suitfor prayers mentioned above against the respondents.3.On the contrary, respondent No.1 vide his writtenstatement (Exhibit – 33) resisted the suit by denying all theadverse contentions made against him. He also raised certainobjections on the grounds such as non–payment of requisiteCourt fee and suit being barred by limitation. He claimed that,Kamalabai Rudreshwar Ambekar, in her lifetime had, in fact, filedRegular Civil Suit No. 154 of 2011 for declaration and injunctionin respect of alleged construction over the suit plot, but after herdeath her legal representatives Gaurihar Ambekar and MaltiAmbekar withdrew the said suit. He further contended that,Ashok Keshav Ambekar had become owner of half share of thesuit plot through will–deed dated 01.11.1983 executed byerstwhile owner of the suit plot Pundlik Mahadev Ambekar andsaid half share had been purchased by him from Ashok KeshavAmbekar under the registered sale–deed. According to him,Kamalabai Rudreshwar Ambekar and Ashok Keshav Ambekar hadentered into compromise deed in respect of partition of the suitplot between them and accordingly, Ashok Keshav Ambekar hadbecome owner of the half plot to the extent of 655 sq. mts. atPooja Kale
Legal Reasoning
{4} S.A. No.370-2023east–north side. It is also contended by him that, an amount ofRs.17,000/- was given to Kamalabai Rudreshwar Ambekar on14.02.1997 for removing her temporary shed in the said share ofAshok Keshav Ambekar. Thus, respondent No.1 claimed dismissalof the suit.4.Learned Civil Judge Senior Division, Jalgaon i.e. learned TrialCourt dismissed the said suit vide judgment and decree dated09.08.2018 and thereafter the learned District Judge – 4, Jalgaonalso dismissed Regular Civil Appeal No. 38 of 2019 filed againstthe said judgment and decree vide judgment and order dated01.03.2023 and hence this appeal.5.Learned Counsel for appellant vehemently argued that, thesuit plot was purchased jointly by Kamalabai RudreshwarAmbekar and Pundlik Mahadev Ambekar by way of registeredsale–deed dated 20.09.1973 and, since there was no partitionbetween themselves, the suit plot could not have transferred byPundlik Mahadev Ambekar by will–deed as well as through sale–deed by Ashok Keshav Ambekar. He pointed out that, there areso many substantial questions of law involved in this matter.However, on going through those substantial questions of lawPooja Kale {5} S.A. No.370-2023alongwith pleadings of the parties and the judgments of both thelearned Courts below, only following substantial questions of lawappear to be involved in this matter :(a)Whether the present appellant/plaintiff can become owner of the entire suit plot when the same was purchased jointly by her mother-in-law and cousin father-in-law ?(b)Whether there was any bar for transfer of half share of suit plot either by Pundlik Mahadev Ambekar or his nephew Ashok KeshavAmbekar ?6.It is extremely important to note that, though the appellant/plaintiff had claimed that Kamalabai Rudreshwar Ambekar afterdemise of Pundlik Mahadev Ambekar had become owner ofentire suit plot, but she herself has pleaded in the plaint that, thesuit plot was jointly purchased by Kamalabai RudreshwarAmbekar and Pundlik Mahadev Ambekar. It is to be noted herethat, appellant had never cared to produce on record registeredsale–deed dated 20.09.1973 by which Kamalabai RudreshwarAmbekar and Pundlik Mahadev Ambekar jointly purchased thesuit plot. Therefore, in the light of this admitted position it cannotbe held that Kamalabai Rudreshwar Ambekar had becomePooja Kale {6} S.A. No.370-2023exclusive owner of the suit plot after the death of PundlikMahadev Ambekar. Admittedly, the copy of sale–deed wasallowed to be filed on record vide order of this Court dated08.05.2024. Even on going through the said copy of the sale–deed, there is no apportionment of shares of KamalabaiRudreshwar Ambekar and Pundlik Mahadev Ambekar in the suitplot at the time of purchase. Therefore, in absence of suchapportionment it has to be presumed that, KamalabaiRudreshwar Ambekar and Pundlik Mahadev Ambekar hadbecome owner of suit plot in equal share. Further, the recordshows that Kamalabai Rudreshwar Ambekar had made certainunauthorized construction on the share of respondent No.1 andfor removing the same Kamalabai Rudreshwar Ambekar hadaccepted an amount of Rs.17,000/- on 14.02.1997. Even receiptto that effect executed by Kamalabai Rudreshwar Ambekar hadbeen produced on record before the learned Trial Court.Moreover, in cross-examination itself the appellant/plaintiffadmitted that, Ashok Keshav Ambekar had given Rs.17,000/- toher mother-in-law i.e. Kamalabai Rudreshwar Ambekar forremoval of shed which was on his share. The said admissiondefinitely indicates that, there must be division betweenPooja Kale {7} S.A. No.370-2023Kamalabai Rudreshwar Ambekar and Ashok Keshav Ambekar inrespect of the suit plot. Further, the will–deed executed byPundlik Mahadev Ambekar in favour of his nephew Ashok KeshavAmbekar has been duly proved and therefore, it can safely beinferred that Pundlik Mahadev Ambekar had successfullybequeathed his share in the suit plot by way of will–deed toAshok Keshav Ambekar, who thereafter sold the same to presentrespondent No.1 vide registered sale–deed.7.Thus, from the case of appellant/plaintiff, it is clear that,she was not the exclusive owner of suit plot. Moreover, even if itis presumed that, there was no partition in respect of suit plotbetween Pundlik Mahadev Ambekar and Kamalabai RudreshwarAmbekar or Kamalabai Rudreshwar Ambekar and Ashok KeshavAmbekar, then also the appellant/plaintiff claiming throughKamalabai Rudreshwar Ambekar cannot demand ownership ofentire suit plot. On the contrary, if she comes with such casethen she will have to file a partition suit, but certainly not thesuit for declaration of her ownership right over the entire suitplot. Further, it has also come on record that, the erstwhileowner Kamalabai Rudreshwar Ambekar had also removed heralleged unauthorized construction by accepting suchPooja Kale {8} S.A. No.370-2023consideration and therefore, she is also not entitled to claim anyinjunction as prayed. Considering all these aspects and theconcurrent findings of both the learned Courts below, thereappear no substantial questions of law involved in this SecondAppeal as raised by the appellant/plaintiff. In view of the same,the present Second Appeal stands dismissed at admission stagealongwith pending Civil Application No. 8501 of 2023.8.The Second Appeal is accordingly disposed of. [ SANDIPKUMAR C. MORE ] JUDGEPooja Kale