High Court

Legal Reasoning

{1} SA 433.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 433 OF 2023ANNARAO VISHWANATH KHURDE AND OTHERSVERSUSSHAHAJIRAO VISHWANATH KHURDE.…Mr. D.A. Mane, Advocate h/f. Mr. M.M. Patil, Advocate for appellantsMr. A.R. Mate, Advocaete h/f. Smt. Madhveshwari S. Mhase, Advocatefor respondent. CORAM :S.G. CHAPALGAONKAR, J. DATE : 15th JANUARY, 2024. P.C. :-Appellant/original defendant impugns the judgment anddecree dated 29.4.2023 passed by District Judge, Nilanga in R.C.A. No.72 of 2016, thereby upholding the judgment and decree dated 3.11.2016passed by Civil Judge (J.D.), Nilanga in R.C.S. No. 203 of 2010.2.For the sake of convenience, parties are referred as per theiroriginal status in the suit.3.Respondent/plaintiff instituted R.C.S. No. 203 of 2010 fordeclaration, ownership and perpetual injunction in respect of the suitproperties i.e. Land Survey No. 28/1A admeasuring 1 Hectare 86 R andland Surevey No. 26, admeasuring 1 Hectare 52 R, situated at villageHanmantwadi (Hadoli), Taluka Nilanga, Dist. Latur, contending that thesuit properties are ancestral properties of the plaintiff and defendant.Those have been partitioned amongst them. The plaintiff received suit {2} SA 433.23.odtlands as per the said partition of 1984, eventually mutation entries wereeffected. Previously, plaintiff was required to file R.C.S. No. 3 of 2008seeking partition. However, defendants took plea of previous partition of1984. The trial court accepted defendants’ contention and dismissed thesuit recording a finding that the suit property has been alreadypartitioned on “Gudi Padwa” in the year 1984. According to plaintiff,defendant Vishwanath received 1 Hectare 30R land from Survey No.28/1., whereas, defendant No.2 Bajirao received share admeasuring 1Hectare 86 R. Plaintiff further contends that he had transferred 1Hectare 22 R land in the name of mother under registered sale deeddated 21.6.2004. Lateron, his mother executed a Gift Deed dated26.11.2009 in his favour. According to plaintiff, he is in exclusiveownership and possession of suit property since partition and carrieddevelopment. However, defendants are obstructing his possession,hence, he was required to file present suit for declaration and injunction.4.Defendants admitted relationship and also factum ofpartition that took place in the year 1984, but took the plea that suit isbarred by principle of estoppel and denied the exclusive ownership ofplaintiff over suit property. They accepted that the mother Gayabaiexecuted Gift Deed in favour of plaintiff, with caveat that it is is obtainedby fraud. They specifically denied possession of the plaintiff over suitproperty.5.Trial court framed issues , recorded evidence of parties andfinally decreed the suit of plaintiff. Aggrieved defendants preferredRegular Civil Appeal No. 72 of 2016 before the District Judge, Nilangawhich came to be dismissed on 29.4.2023. {3} SA 433.23.odt6.Mr. Milind Patil, learned advocate for the appellant submitsthat defendants have specifically raised a dispute as regards to theallotment of suit property to the plaintiff in the family partition and isalleged possession over the same, but, trial court failed to frame issue onthis aspect. Even the appellate court failed to frame appropriate point forconsideration. As such, decree is vitiated for non framing of pivotalissue. The decree sans mandatory requirement under Order 14, so also,Order 41 Rule 31 of C.P.C. He further submits that courts below haveerroneously assumed that previous partition of land would encompassadmission as regards allotment of a particular share to the plaintiff. Hewould submit that plaintiff is trying to establish his right over the primeproperty having source of irrigation without proof of allotment of saidland to him during partition.7.Mr. Patil invites attention of this court towards admission ofthe plaintiff that he has no document or proof to support his claim as toallotment of a particular land. He would, therefore, urges to admit theappeal by framing substantial questions of law.8.Per contra, Smt. Madhveshwari Mhase learned advocate forrespondent would submit that defendants had previously obstructedplaintiff from enjoying the suit properties as per partition. Consequently,plaintiff was required to file R.C.S. No. 3 of 2008 seeking partition of suitproperty. In that suit, defendants took the plea of previous partition of1984 and defeated plaintiff’s suit. Pleadings and evidence recorded inthat suit is sufficient to establish partition and allotment of suit lands tothe plaintiff. Consequently, concurrent decree passed by courts below {4} SA 433.23.odtupholding plaintiff’s claim for declaration of ownership and perpetualinjunction cannot be faulted with. She urges that no substantial questionof law arises for consideration into the concurrent finding recorded byboth fact finding courts on appreciation of evidence.9.Having considered submissions advanced, and on perusal ofreasoning adopted by courts below, it can be gathered that there is nodispute as regards to previous partition of 1984 between plaintiff anddefendants, who are members of joint family. R.C.S. No. 3 of 2008instituted by plaintiff seeking partition and separate possession wasdismissed upholding defendants’ stand as to the previous partition of suitproperties. The only issue posed before this Court is as regards to theidentification of properties fallen to the suare of plaintiff andconsequential claim for declaration of his ownership.10.Mr. Patil, learned advocate for appellant endeavours tocontend that though plaintiff could not establish his possession overparticular area as claimed in the plainti, he is trying to grab the landswith amenities under the garb of previous partition. So as to find outcorrectness of aforesaid submissions, it would be necessary to makereference to the written statement that was filed by appellants in theprevious suit i.e. R.C.S. No. 3 of 2008 filed by plaintiff. Defendants havespecifically pleaded that in the year 1984, written partition was effectedbetween plaintiff and defendants. Mutation Entry No. 211 dated15.4.1984 was sanctioned in pursuance to such partition and they are inpossession of respective shares. They further assert that plaintiff hastransferred 1 Hectare 22 R land in favour of defendant No.2 motherfrom Survey No. 28A. Aforesaid statement in written statement would {5} SA 433.23.odtclearly depict that property possessed by plaintiff was clearly defined andthat was subject matter of sale deed executed by plaintiff in favour ofmother – Defendant No.2 I.e Gayabai Vishwanath Gute. Same land wasfurther subject matter of registered gift deed executed by Gayabai infavour of plaintiff. The four boundaries of area admeasuring 1 Hectare22 R from Survey No. 28A has been specified in those documents. Assuch, there cannot be dispute as regards to the identification of share ofland from Survey No. 28/1A. So far as land Gat No. 26 is concerned,admittedly, it was partitioned and possession of specified area was givento the plaintiff.11.Smt. Madhaveshwari Mhase, learned advocate forrespondent/plaintiff invited attention of this Court to the crossexamination of defendant No.1 father of plaintiff and defendant/originaldefendant No.3 recorded in R.C.,S. No. 3 of 2008. He admits that hepartitioned Survey No. 28/1A between himself and his 3 sons andallotted 4 and ½ Acre land to them. He specifies boundaries of the landreceived by him from Eastern side. Then, specifies boundaries of portionof land that was allotted to plaintiff and other sons. Similarly, hespecifies allocation of share allotted to plaintiff in Survey No. 26.Aforesaid evidence of Vishwanath clarifies about allocation of landspossessed by himself and his sons after partition.12.Perusal of judgment of the trial court would show that thereis evidence indicating that plaintiff has dug a well under the GovernmentScheme and mutation entry to that effect is recorded. Similarlymutation entries as regards to the ownership and possession of plaintiffover the area admeasuring 1 Hectare 86 R from Survey No. 28/1A and {6} SA 433.23.odt1/4th share in Survey No.26, has never been challenged. Pertinently,defendant Nos. 1 and 2 did not enter into witness box. The trial courtconcluded that plaintiff proved his ownership and possession over thesuit property. Appellate court also concurred with the finding recordedby trial court in this regard.13.No perversity in the concurrent finding of fact is discernible.No substantial question of law emerges for consideration. Hence, secondappeal sans merit, stands dismissed.14.Civil application, if any, stands disposed of. [S.G. CHAPALGAONKAR, J] At this stage, learned advocate for appellant seekscontinuation of interim relief that was granted in Second Appeal.However, this court has confirmed the concurrent findings recorded bythe courts below and for the reasons stated in the order, the requestmade cannot be considered. Hence, same is rejected.[S.G. CHAPALGAONKAR, J]grt/-