SUBHASH SURYABHAN THORAT v. SURYABHAN HARI THORAT (DIED) & Ors

913.SA-379-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 379 OF 2025WITHCIVIL APPLICATION NO. 10637 OF 2025SUBHASH SURYABHAN THORAT VersusSURYABHAN HARI THORAT (DIED) AND ORS****** Advocate for the Appellant : Mr. Kunte Sachin D.***** CORAM : MEHROZ K. PATHAN, J. DATE : 17th JANUARY 2026 O R D E R :1.The Appellant has filed the present Appeal, challenging thejudgment dated 26.06.2025, whereby the learned First AppellateCourt partly allowed the suit bearing RCS No.275/2016 andpartly decreed the same by modifying the 1/5th share granted toeach of the Defendants and the Plaintiff, extending instead a1/4th share to each of the family members, namely the Plaintiffand Defendant Nos. 2 to 5.2.The learned Counsel for the Appellant submitted that thesubstantial questions of law involved in the present appeal is thatwhether the learned Appellate Court has failed to consider thefact that there was an oral partition between the Defendants andthe Plaintiffs who are the legal heirs of the deceased DefendantNo.1 i.e. Suryabhan Thorat.[1]

913.SA-379-2025.odt3.The further substantial question of law involved in thepresent Appeal, according to the Appellant, is whether the Courtsbelow committed a grave error of law in failing to hold that thesuit was not maintainable, as it was a partial partition of theproperty. As per the judgment in Govindrao s/o GangaramjiAjmire v. Dadarao @ Shrawan s/o Gangaramji Ajmire (dead)through LRs. Indrani wd/o Shrawan Ajmire and Ors., reported in2004(4) Mh.L.J. 653, a suit for partition must include the entirefamily property. Since the plaint did not bring the entire familyproperty into a common hotchpotch, the suit for partition of anisolated property was untenable. 4.To consider the first substantial questions of law, it wouldbe appropriate to refer to the findings of the learned Civil JudgeSenior Division pertaining to the Defendant’s plea of oralpartition. The issue no.2 framed by the learned trial Court is asunder :Whether Defendant No.4 prove that in the year 2006, suitproperties have been orally partitioned and the Plaintiffgot his share?”5.The said issue came to be answered by discussing in detailwhether any such property was orally partitioned. The learnedtrial Court has given the finding that the Defendants have failedto lead any evidence to prove that the family had an oralpartition of the suit property. Defendant No.4/Subhash had onlyexamined himself on oath and has submitted that he receivedsuit property in the year 2000 as per the compromise arrived at[2]

913.SA-379-2025.odtbetween Suryabhan and his siblings in the previous civil suit. Thelearned Civil Court found that Defendant No.4, the presentAppellant herein, failed to prove the date on which the allegedoral partition was effected. Defendant No.4 further failed toestablish that, pursuant to the oral partition, the parties to thesuit acted upon it, or that the names of the parties were mutatedin the revenue records of the suit property. It was furtherobserved by the learned trial Court that Defendant No.4 failed toshow what share Defendant No.4, Kantabai, had received in theoral partition as contended. Thus, the oral partition wasdisbelieved and Issue No.2 was answered in the negative. 6.The learned Appellate Court, in its judgment dated26.06.2025, also observed that Defendant No.4, i.e., theAppellant herein, had not examined any witness who was presentat the time of the oral partition. The Appellant did not state anyparticular date or month when the said oral partition waseffected. When the suit was filed, the Appellant had neitherpleaded any previous partition nor denied the claim of thePlaintiff. By virtue of such conduct, it was shown that the suitlands were yet to be partitioned equitably by metes and bounds.Similarly, a perusal of the 7/12 extracts revealed that only thename of Defendant No.1 appeared in the column of possession ofthe suit land, whereas the names of the Plaintiff and DefendantNos.2 to 5 were not mentioned. This clearly goes to prove thatno oral partition had been effected at any time earlier and theAppellate Court also affirmed the findings of trial Court on oralpartition. [3]

913.SA-379-2025.odt7.Thus, the learned trial Court as well as the first AppellateCourt has given a specific finding of fact that there was no oralpartition between the family members of the Defendant No.1 andas such, had given a finding to the issue no.2 in the negativewhich is upheld by the first Appellate Court. Thus taking intoconsideration the above findings, the following substantialquestions of law which is argued to be involved in the presentAppeal i.e. Whether the Lower Appellate Court erred in holdingthat the oral partition alleged by the Appellant was not proved,despite the evidence presented regarding separate livingarrangements and the construction of an RCC house andpipeline, therefore does not arise for consideration in the presentappeal.8.Insofar as the other question of law is concerned, it is truethat the judgment in Govindrao s/o Gangaramji Ajmire (supra)speaks about the necessity of including the entire family propertyin a suit for partition. However, the Appellant failed to raise thisground in the first appeal before the learned Appellate Courtafter the suit for partition was decreed. The memo of appeal filedbefore the learned Ad-hoc District Judge-2, Vaijapur, does notcontain a single ground regarding non-inclusion of the entirefamily property for partition. Be that as it may, when the issue ofnon-inclusion of the entire family property was not framed by thetrial Court, Defendant No.4, i.e., the present Appellant herein,did not challenge the framing of issues before the appropriateforum so as to consider the plea of non-inclusion of the entirefamily property. There was no challenge to the framing of issues[4]

913.SA-379-2025.odtin the appeal, which remained limited only to the ground of oralpartition raised by the Appellant in the initial written statement.9.The learned Counsel for the Appellant submits that thewritten statement was thereafter amended and specific plea ofnon-inclusion of the entire family property was raised by theAppellant herein. Be that as it may, the non-framing of an issueby the learned trial Court, and the failure of the Appellant hereinto challenge the same, clearly show that the Appellant haswaived the said ground and conceded to it. The Plaintiffrestricted the partition to the suit property as mentioned in theplaint. While filing an appeal before the First Appellate Court, theAppellant also did not raise any ground regarding non-inclusionof the entire family property. Thus, in the absence of anyobjections to that effect, the learned Trial Court rightly decreedthe suit, granting a 1/5th share to each of the family members,including the Plaintiff and the Defendants, as well as theAppellate Court did not deal with any such ground of non-inclusion of entire family property in its judgment. 10.The learned Appellate Court has rightly dismissed theappeal filed by the Appellant herein, with a further modificationof granting a 1/4th share to each of the Plaintiff and DefendantNos. 3 to 5, in view of the death of Defendant Nos. 1 and 2during the pendency of the proceedings. The appeal filed by theAppellant herein, therefore, does not involve any substantialquestion of law falling for consideration of this Court. It is almosta settled law that appeals under Section 100 of the CPC can be[5]

913.SA-379-2025.odtentertained only on a substantial question of law. Thus, in theabsence of any substantial question of law falling forconsideration of this Court, the Appeal is dismissed with costs. 11.The Civil Application is also disposed of. [ MEHROZ K. PATHAN ] JUDGENajeeb..[6]