High Court

Legal Reasoning

( 1 ) sa 819.13IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 819 OF 20131.Prakash s/o Dadarao Ingle,Age : 59 years, Occ. Agri.,2.Mangalatai w/o Prakash Ingle,Age 51 yrs. Occ. Agri.Both r/o Umri (Kd), Tq. Hadgaon,Dist. Nanded.… APPELLANTS V/s.1.Pratap s/o Kishanrao Ingle,Age : 57 yrs. Occu. Agri.2.Panchaphulabai Kishanrao Ingle,Age 82 yrs., occu. Agri, 3.Subhash s/o Kishanrao Ingle,Age 62 yrs. Occ. Agri.All r/o Umri (Kd), Tq. Hadgaon,Dist. Nanded.4.Ratnamala Pundlikrao Kanke,Age 52 yrs. Occ. Household,r/o Mantha, Tq. Hadgaon,Dist. Nanded.5.Manorama Vishwanath Khillare,Age 47 yrs. Occ. Household,r/o Newari, Tq. Hadgaon,Dist. Nanded.…RESPONDENTS WITH CIVIL APPLICATION NO. 15360 OF 2013….Advocate for the Appellants :- Ms.Manjushri Shendge Patil h/f. Mrs. A. S. RasalAdvocate for the Respondents : Mr. P. G. Godhamgaonkar…. ( 2 ) sa 819.13CORAM : Y.G. KHOBRAGADE, J.DATE :20.03.2024ORDER:-1.Heard Ms. Manjushri Shendge Patil, holding for Mrs. A. S. Rasallearned counsel appearing for the appellants and Mr. P.G. Godhamgaonkar,learned counsel appearing for the respondents at length.2.Present appeal under section 100 of the Code of Civil Procedure isdirected against the judgment and decree dated 24.09.2013 passed by thelearned District Judge-2, Nanded in Regular Civil Appeal No. 61/2002, arisingout of judgment and decree dated 07.03.2002 passed by the learned JointCivil Judge, J.D. at Hadgaon, in Regular Civil Suit No. 69/1996.3.The present appellants are the original defendant nos. 4 and 5,whereas the respondent nos. 1 and 2 are the original plaintiffs, respondentnos. 3 to 5 are the original defendant nos. 1 to 3 in Regular Civil Suit No.69/1996. For the sake of brevity and convenience the parties to the presentappeal are referred in their original capacity as plaintiffs and defendants.4. The plaintiffs filed Regular Civil Suit No. 69/1996 seeking decreeof declaration of ownership, perpetual injunction as well as restraining thedefendants from interfering with their possession, recovery of possession andin alternative for partition and separate possession of their 3/5th share in the ( 3 ) sa 819.13landed property bearing gut no. 137, admeasuring 1 H. 51 R., gut no. 173admeasuring 63 R. and gut no. 136 admeasuring 83 R. All these propertiesare situated at village Umari (Khd), Taluka Hadgaon, District Nanded, whichhereinafter shall be referred to as the suit properties.5.According to the plaintiffs, the plaintiff no.2 is real mother ofplaintiff no.1 and defendant nos. 1 to 3. The plaintiff no.1 and defendantno.1 are sons. The defendant nos. 2 and 3 are the daughters of plaintiff no.2.The suit lands are ancestral and joint family properties of the plaintiffs anddefendant nos. 1 to 3. The land revenue record in respect of suit propertieswere standing in the name of Kishanrao s/o Reshmaji Ingale, the husband ofplaintiff no.2 and father of plaintiff no.1 as well as defendant nos. 1 to 3. ShriKishanrao s/o Reshmaji Ingale died prior to year of filing of suit. Theplaintiffs and defendant nos. 1 to 3 are his successors of late Kishanrao. Afterdemise of Kishanrao, all suit properties mutated in the name of defendantno.1 being a Karta of joint family, consisting the plaintiffs and defendant nos.1 to 3. However, due to family dispute, partition was effected between themprior to 7 years of filing of suit. According to the plaintiffs, in partition noshares was allotted to the defendant nos.2 and 3 because both of themrelinquished their rights as per their will and desire. In partition, 76 R. landof the southern side was allotted to the share of the plaintiffs, out of gut no. ( 4 ) sa 819.13137 admeasuring 1 H. 51 R. and remaining 76 R. land from northern side wasallotted to share of the defendant no.1. Similarly, out of gut no. 173admeasuring 63 R., half portion i.e. 32 R. land into two pieces from northernside was given to the share of plaintiff no.1 and remaining portion of southernside admeasuring 32 R. land was given to the share of defendant no.1. Soalso, the land gut no. 136 admeasuring 83 R. was given to the share ofdefendant no.2. Accordingly, separate possession of lands allotted to theshares of plaintiffs and defendant no.1. Since then they are in possession oftheir respective shares.6.According to the plaintiffs at the time of partition, the defendantno.1 had agreed to transfer the land as per share of plaintiffs, however, nosuch land was transferred in their name. Therefore, they requested manytimes to the defendants for giving lands as per their shares, but the defendantno.1 avoided to transfer lands in their favour and they are deprived from theirlegal rights, but the defendant no.1. trying to alienate suit properties in thename of other persons, hence prayed for decree of perpetual injunction.7.The plaintiffs further pleaded by way of amendment that, duringthe pendency of suit, the defendant no.1 executed sale-deed in favour ofdefendant no. 5 in respect of 83 R., land out of gut no. 136. Therefore, saidtransaction not binding upon them and they are entitled to recover possession ( 5 ) sa 819.13of the land gut no. 136. The plaintiffs further contended that, the defendantnos. 4 and 5 dispossessed the plaintiff no.2 prior to two years of filing of suitand made entries in the revenue record on the basis of sale-deed. Therefore,the plaintiffs prayed for decree of declaration of ownership, perpetualinjunction, recovery of possession and alternatively, for partition and separatepossession.8.The defendants no. 1 filed written statement at Exhibit 28 anddenied claim of plaintiffs. The defendant nos. 2 and 3 remained absent, inspite of service of notice, hence suit proceeded ex-parte against them.9.The defendant nos. 4 and 5, vide their written statement atExhibit 65, resisted the suit and filed amended written statement at Exhibit133.10.According to the defendant nos. 1, 4 and 5, the suit properties arejoint Hindu family property of deceased Kishanrao Ingale. The plaintiffs andthe defendant nos. 1 to 3 are successors of deceased Kishanrao. Thedefendants have not disputed that after demise of said Kishanrao, all suitproperties mutated in the name of defendant no.1 -Subhash being eldermember and Karta of family of the plaintiffs and defendant nos. 1 to 3. Thedefendants also not disputed about partition of the lands between the ( 6 ) sa 819.13plaintiffs and defendant no.1 prior to 7 years of filing of the suit andrelinquishment of shares by the defendant nos. 2 and 3. These defendants notdisputed about allotment of the 76 R. land out of gut no. 137 of southern sideto the share of plaintiffs and remaining northern side 76 R. allotted to theshare of defendant no.1. Similarly, in partition the land admeasuring 32 R. outof gut no. 173 was allotted to the share of plaintiff no.1 and remaining 32 R.land was allotted to the defendant no.1, however, they denied about allotmentof share to the defendant no.2 from gut no. 136 to the extent of 83 R. land.The defendants pleaded that, land admeasuring 83 R. out of gut no. 136 wasowned and possessed by the defendant no.1, who sold said land to thedefendant no.5 for repayment of family debt which was obtained forimprovement of the family. The defendants denied about avoiding of transferof land in the names of the plaintiffs and trying to alienate suit land by takingbenefit about mutation entry in his name, in the revenue record. Thedefendant nos. 4 and 5 further denied about execution of sale-deed in favourof the defendant no. 5 in respect of land admeasuring 83 R. out of gut no.136. So also, some portion from suit land transferred in their favour undersale deed dated 05.09.1996 on payment of consideration amount. Therefore,prayed for dismissal of the suit.11.In order to prove the plaintiffs' claim, the plaintiff no.1 examined ( 7 ) sa 819.13at Exhibit 72. The plaintiffs also examined P.W.2 -Nivrutti at Exhibit 73. Percontra, the defendant no.1 did not step into witness box. The defendant nos. 4and 5 examined the defendant no.4 Prakash at Exhibit 92, D.W. 2 Panditrao atExhibit 98, D.W.3 Yashwant at Exhibit 99. The sale-deed Exhibit 100, 7/12extract Exhibits 81, 96, 97 are duly proved.12.After hearing both the sides, on 07.03.2002, the learned trialCourt passed the judgment and decree and decreed the suit of the plaintiffsdeclaring that, the plaintiff no.1 is owner and possessor of the suit land gutno.137 to the extent of 76 R. and 32 R. out of land gut no. 137 as described inprayer clause 'A' of the suit. Similarly, plaintiff no.2 was declared as a ownerof the suit land to the extent of 83 R. out of land gut no. 136 as per the fourcorner boundaries described therein and the defendants are restrainedperpetually from causing any obstruction in the possession of the plaintiffno.1, over the suit land to the extent of 76 R. out of gut no.137 and 32 R. outof gut no. 173. Further, the defendants are restrained perpetually fromcausing any interference in possession of the plaintiff no.2 over the suit landto the extent of 83 R. out of gut no. 136. Further, defendant no.1 wasrestrained from alienating suit land admeasuring 76 R. out of gut no. 137which has fallen to the share of plaintiff no.1 and land admeasuring 32 R. outof gut no. 173 came to the share of plaintiff no.1. Further, the plaintiff no.2 - ( 8 ) sa 819.13Panchafulabai shall recover the possession of suit land admeasuring 83 R. outof gut no. 136.13.On perusal of the record as well as the findings recorded by boththe Courts below, it prima facie appears that, the suit lands are ancestralproperties of the plaintiffs and defendant No.1 because it was joint familyproperty of deceased Kishanrao Ingale. After said demise of said Kishanrao,all the lands mutated in the name of defendant no.1 -Subhash being eldermember and Karta of the family of plaintiffs and defendant nos. 1 to 3. It isnot in dispute about effecting partition of land between the plaintiffs anddefendant nos. 1 to 3 prior to 7 years of filing the suit. Needless to say that, inpartition, southern side portion admeasuring 76 R. land out of gut no. 137came to the share of plaintiff no.1 and remaining northern side 76 R. land outof gut no. 137 was allotted to the defendant no.1. Similarly, landadmeasuring 32 R. out of gut no. 173 was allotted to the share of plaintiffno.1 and remaining 32 R. land was allotted to the share of defendant no.1.Though the defendant nos. 3 and 4 denied that, the suit land admeasuring 83R. land out of gut no. 136 was allotted to the share of plaintiff no.2, but saidland owned and possessed by the defendant no.1, who sold the said land tothe defendant no.5 for repayment of family debt obtained for betterment ofthe joint family. But, the defendant no.1 has not pleaded in his written ( 9 ) sa 819.13statement Exhibit 28 that, land gut no.136 was given to him for repayment ofthe family debt. Therefore, the learned trial Court as well as the FirstAppellate Court held that the plaintiffs proved about receiving 76 R. land outof gut no. 137 from southern side, 32 R. land out of gut no. 173 andremaining half portion of both these survey numbers was given to the share ofdefendant no.1. So also, the suit land gut no. 136 admeasuring 83 R. landwas given to the share of plaintiff no.2. So also, the plaintiffs have provedthat they are owners of their respective shares and answered issue nos. 3 and4 in the affirmative. Therefore, findings recorded by both the Courts belowdoes not appear contrary to the evidence available on record. Therefore, I donot find that any substantial questions of law is involved in the instant appeal,hence, it needs to be dismissed.14.In view of above discussion, I proceed to pass the followingorder :ORDERI)The present appeal is hereby dismissed.II)Record and proceedings, if any, received be remitted back to the trial Court.III)Civil Application pending, if any, also stands disposed off. [Y.G. KHOBRAGADE, J.]SHP