High Court · 2025
Legal Reasoning
53.SA-554-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSecond Appeal No. 554 Of 2023Prabhu Gunda Birajdar, (Since died)Through lrs,A]Udhav Prabhu Birajdar,Age : 50 years, Occ. Agriculture,B]Madhukar Prabhu Birajdar,Age : 48 years, Occ. Agriculture,C]Balaji Prabhu Birajdar,Age : 43 years, Occ. Agriculture,D]Smt. Sulabai Prabhu Birajdar,(died LRS are A-C and E-F already on record)All R/o. Lamjana, Tq. Ausa,District Latur.E]Sow. Sunita Prakash Tongale,Age : 30 years, Occ. H.H.,R/o. Near Ausa Maruti, Latur.F]Sow. Anita Chitambar Patil,Age : 28 years, Occ. H.H.,R/o, Savalsur, Tq. Omerga,District Osmanabad. .. Appellants Versus1]Shamrao Deorao Birajdar,Age : 85 years, Occ. Agriculture,2]Narsing Shamrao Birajdar (Died)L.Rs.2/1]Smt. Mandakini Narsing Birajdar,Age : 45 years, Occ. H.H.,2/2]Pravin Narsing Birajdar,Age : 30 years, Occ. Private Service,2/3]Prashant Narsing Birajdar,Age : 28 years, Occ. Service,2/4]Pradeep Narsing Birajdar,Age : 24 years, Occ. Education,All R/o. Appa Niwas, Back side ofBidve College, Kalamb Road, LaturTq. and District Latur. [1]
Legal Reasoning
53.SA-554-2023.odt3]Pandit Shamrao Birajdar (Died)L.Rs.3/1]Smt. Kalpana Pandit Birajdar,Age : 42 years, Occ. H.H.,3/2]Pramod Pandit Birajdar,Age : 22 years, Occ. Education,3/3]Pratiksha Pandit Birajdar,Age : 19 years, Occ. Education,3/4]Prachi Pandit Birajdar,Age 18 years, Occu. Education,All R/o Lamjana, Tq. Ausa,Dist. Latur.4]Virappa Gunda Birajdar (Died)L.Rs.4/1]Smt. Prabhawati Irappa Birajdar,Age : 60 years, Occu. H.H.,R/o Lamjana, Tq. Ausa,Dist. Latur.4/2]Kondabai Shivkanth Dalimbe,Age : 40 years, Occu. H.H.,R/o Lamjana, Tq. Ausa,Dist. Latur.4/3]Kanchan Prafullakumar Mitkari,Age : 35 years, Occu. H.H.,R/o Ausa, Tq. Ausa,Dist. Latur.4/4]Archana Balaji Pawade,Age : 30 years, Occu. H.H.R/o. Kharosa, Tq. Ausa, Dist. Latur.5]Limbu Gunda Birajdar,Age : 78 years, Occu. Agriculture,(Died), L.Rs. :-5/1]Sojarbai Limbu @ Limbraj Birajdar,Age : 70 years, Occu. Agriculture,R/o Lamjana, Tq. Ausa,Dist. Latur.5/2]Dagdu Limbu @ Limbraj Birajdar,Age : 35 years, Occu. Agriculture,R/o Lamjana, Tq. Ausa,Dist. Latur.5/3]Dattu Limbu @ Limbraj Birajdar,Age : 30 years, Occu. Agriculture,R/o Lamjana, Tq. Ausa,Dist. Latur.5/4]Mahadabai Maruti Bhujbal,[2] 53.SA-554-2023.odtAge : 50 years, Occu. H.H.R/o. Chincholi (Jogan), Tq. Ausa,Dist. Latur.5/5]Sukumarbai Veerbhadra Sangve,Age : 40 years, Occu. H.H.,R/o Lamjana, Tq. Ausa,Dist. Latur... Respondents****** Advocate for the Appellants :Mr. Suraj V. Gundre ***** CORAM : SHAILESH P. BRAHME, J. DATE : 14th JULY 2025 FINAL ORDER :1.Heard Mr. Suraj V. Gundre learned Counsel for the Appellants. 2.Appellant is challenging concurrent findings of facts by which hissuit for declaration and injunction came to be dismissed. Respondentsare original Defendants, who are related to him. The relationship has notbeen disputed. 3.Appellants filed RCS No.299/2007 contending that land surveyno.43 measuring 26 Acres and 8R was partitioned between theAppellant’s father Gunda and uncle Devrao. Appellant’s father wasallotted 17 Acres 26R and it was given survey no.43/B. His uncle wasallotted 8 Acres 22R which was given survey no.43/A. Khasra Pahani Patrawas prepared by the concerned Department disclosing the area of surveynos. 43/B and 43/A. It is contended that there was further partitionamongst Appellant and his brothers – Respondent No.4-Virappa andRespondent No.5-Limbu in land gut no.43B. Appellant was allotted 7Acres and 20R. Respondent No.4 was allotted 9 Acres 6R andRespondent No.5 was allotted 1 Acre. It is contended that 7/12 extractshowed less area i.e. 5 Acre and 20R. Respondents started obstructingpossession of the Appellant and the suit was required to be filed. [3] 53.SA-554-2023.odt4.The claim of the Appellant is contested by the Respondent Nos. 1to 3 by filing written statement. It is pointed out that there was onemore brother of Gunda and Devrao i.e. Maruti. The factum of partitionamongst between Gunda and Devrao was disputed. It is contended thatrevenue record was property prepared which was not challenged byeither of the parties. 5.Appellant adduced oral evidence of three witnesses. Respondentsadduced oral evidence of four witnesses. Trial Court dismissed the suitwhich is confirmed by Lower Appellate Court. 6.Learned Counsel Mr. Gundre submits that Khasra Pahani Patra atExhibit-7 and for further years Exhibits – 78 to 85, disclosing 7 Acres and26R allotted to Appellant’s father and 8 Acres and 22R allotted to uncleare prepared in accordance with law. In pursuance of that 7 x 12 shouldhave been prepared. It is contended that Khasra Pahani Patra wouldprevail over other record. It is further submitted that in further partition,Appellant was allotted 7 Acres and 20R of survey no.43/B and he is inpossession of the same, despite that less area is shown in the 7x12extract. It is further submitted that application under Order 26 Rule 9was not decided though it was directed to be decided at the time of finaladjudication of the appeal. It is submitted that above, submissions wouldconstitute substantial questions of law to entertain Second Appeal. 7.Both the Courts below have discarded Khasra Pahani Patra Exhibits– 7, 78 to 83 on the ground that there was overwriting in the total areashown to the account of the Appellant’s father and uncle. In that regard,Respondents examined DW-4 who happened to be Tahsildar Ausa. Hisdeposition candidly indicates that overwriting are not officialcorrections. The edifice of the Appellant’s case is founded on the KhasraPahani Patra. The witness clearly admitted handwriting of overwriting is[4] 53.SA-554-2023.odtin different ink. I find no reason to disturb appreciation of evidence. 8.The 7x12 extract produced on record clearly indicates that surveyno. 43/B shows 15R and 26R to the account of Appellant’s father – Gundaand 10 Acres and 22R of survey no.43/A to the account of his uncleDevrao. Those are consistent entries. The revenue entries have not beenchallenged by either of the parties. There is no any other material placedon record by the Appellants to corroborate his claim. Both the Courtsbelow have rightly appreciated the facts. 9.Appellant could not corroborate his further theory of partitionamongst himself and his brothers – Respondent Nos. 4 and 5. His witnessPW-3 has given admissions that 7x12 extract of survey no.43/B showsonly 15R and 26R which falsifies his case. I do not find that the findingsrecorded by both the Courts below can be said to be illegal and perverse.10.The Lower Appellate Court indicated that application Exhibit-56filed by the Appellant for appointment of Commissioner under Order 26Rule 9 was to be decided at the time of final hearing. But no decision isrendered. That can be said to be mere irregularity. Application was filedat the stage of the Appellate Court. The burden was on the Appellant tomake out a case that less area was shown in the revenue record. Hefailed to discharge the burden. No corroborative material is placed onrecord. I do not find that any prejudice is caused to the Appellant for notdeciding application Exhibit-56.11.I find no merit in the Appeal. The substantial questions of lawwhich are pressed into service are devoid of any substance. SecondAppeal is dismissed.SHAILESH P. BRAHME JUDGENajeeb..[5]