Bombay High Court
Shri Namdeo Gangaram Mandalkar vs Smt. Manjula Pandurang Maladkar on 3 November, 2025
2025:BHC-AS:46601
34-fa-1211-2001-judgement.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
CIVIL APPELLATE JURISDICTION
by SMITA
SMITA RAJNIKANT
RAJNIKANT JOSHI
JOSHI Date:
2025.11.03
18:20:50 +0530
FIRST APPEAL NO. 1211 OF 2001
Shri Namdeo Gangaram Mandalkar ]
(since deceased) and therefore, through ]
his heirs and legal representatives ]
1a) Smt. Vasanti N. Mandalkar ]
Hindu, aged 47 years ]
1b) Shri Prasant N. Mandalkar ]
Hindu, aged 34 years ]
1c) Shri Amar N. Mandalkar ]
Hindu, aged 32 years ]
1d) Shri Sujeet N. Mandalkar ]
Hindu, aged 27 years ]
All residing at Sonabai Mandalkar ]
House, 155-A-1, Gaothan, ]
Kumbharwada, Malad (West), ]
Mumbai 400 064. ].. Appellants.
v/s.
Smt. Manjula Pandurang Maladkar ]
(@ Manjula Gangaram Maladkar) ]
Hindu Adult, residing at Room No.91, ]
Dayabhai Chawl, Nanabhai Laxman Road, ]
Malad (West), Mumbai 400 064. ].. Respondent.
Adv. Inamdar Harshad with Adv. Yogesh Dandekar i/b. Adv. Soniya Parab,
for the Appellants.
Adv. Pradyumna D. Sharma with Adv. Randhirkumar N. Mandal, Adv.
Nishi N. Jain and Adv. Amardeep Bhattacharya, for the Respondent.
CORAM : FIRDOSH P. POONIWALLA,J.
RESERVED ON : 24th SEPTEMBER, 2025.
PRONOUNCED ON : 3rd NOVEMBER, 2025.
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JUDGEMENT:-
1 This First Appeal is filed impugning the Judgement dated 3rd /4th July, 2000 of the Bombay City Civil Court, Bombay, dismissing S. C. Suit No. 4331 of 1986 filed by the Original Appellant seeking a declaration that the Original Appellant is the absolute owner of the suit properties i.e (1) land bearing CTS No.1015 together with structure standing thereon bearing CTS No. 1015/1 at Malad Gaothan, Kumbharwada, Malad (West), Mumbai 400 064; (2) land bearing CTS No. 1025 together with structures standing thereon bearing CTS No. 1025/1 to 6 at Malad Gaothan, Kumbharwada, Malad (West), Mumbai 400 064; (3) One structure on CTS No. 973 at Nanabhai Laxman Road, Malad (West), Mumbai 400 064, which all are more particularly described in Schedules, I, II and III annexed as Exhibits 'A', 'B' and 'C' to the Plaint.
2 The case of the Original Appellant in the Suit is that he claims to be the only son born out of the wedlock of Sonabai Gangaram Mandalkar and Gangaram Hiraji Mandalkar. It is the case of the Original Appellant that the Respondent had illicit relations with Gangaram Mandalkar, i.e. his father, for several years, and she had started representing herself to be the wife of Gangaram Mandalkar since 1957 though she was not his legally wedded wife nor was she ever recognized as such.
3 It is further the case of the Original Appellant that his mother expired on 16th February, 1967, when he was about 16/17 years old.
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4 It is the case of the Original Appellant that the deceased
mother - Sonabai was self employed. She used to produce earthen pots and sell them. It is further the case of the Original Appellant that his mother purchased the immovable properties at CTS No. 1015 and 1025 together with the structures standing thereon out of her own earnings and she was the absolute owner of the said properties. The Original Appellant further contends that his father, Gangaram Mandalkar, constructed and owned the Chawl on CTS No. 973 at Malad, Mumbai.
5 It is further the case of the Original Appellant that his father never looked after him and he was brought up by his mother, Sonabai Mandalkar. The Original Appellant submits that he was a minor at the time of the death of his mother. In these circumstances, his father Gangaram Mandalkar started beneficially enjoying his properties and neglected the Original Appellant. However, on attaining majority, the Original Appellant made an Application to the City Survey Officer V, on 5th April 1974, to enter his name in the records of the properties bearing CTS Nos. 1015, 1015/1, 1025, 1025/1 to 6 at Malad, being the only surviving heir and legal representative of the late Sonabai Mandalkar. The notice of the said Application was issued to the father of the Original Appellant who contended that he and the Original Appellant were the joint owners of the said properties, which were orally partitioned between them, and the property bearing CTS No.1015 and 1015/1 was allotted to the Original Appellant and the property bearing CTS No.1025 and 1025/1 to 6 was allotted to Gangaram Mandalkar. The said Application was decided against the Original Appellant and the name of Gangaram Mandalkar came to be entered on the records in respect of S.R.JOSHI 3 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc CTS No. 1025, 1025/1 to 6 and the name of the Original Appellant was entered on the records in respect of CTS No.1015 and 1015/1. Being aggrieved by the said Order, the Original Appellant preferred an Appeal. However, the same was dismissed on the ground of limitation.
6 It is the case of the Original Appellant that there was no partition at all of the aforesaid properties after the death of his mother in 1967, as alleged by his father.
7 Further, it is the case of the Original Appellant that Gangaram Mandalkar expired on 24th February, 1985, leaving behind no other heir, save and except the Original Appellant. Hence, the Original Appellant submitted that the Appellant has become the absolute owner of the suit properties described at Exhibits 'A', 'B' and 'C' to the Plaint.
8 It is further the case of the Original Appellant that the documents pertaining to the aforesaid properties were held by the Respondent since his father used to reside with the Respondent. Therefore, the Original Appellant approached the Respondent and demanded the said documents but the Respondent refused to hand over the said documents stating that she was entitled to all the aforesaid properties, and asked the Original Appellant to remove himself, along with his family members, from the structure standing on CTS No. 1015. It is the case of the Original Appellant that the Respondent also threatened the Original Appellant with dire consequences and forcible ousting from the said property and, therefore, the Original Appellant was required to approach the Bombay City Civil Court by way of the present Suit.
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9 Further, the Original Appellant contended that, after the
death of his father, the Respondent started representing herself as the landlady of the properties i.e. CTS No. 1025 and 1025/1 to 6 and the Chawl on CTS No. 973 and collected rents from the tenants with malafide intentions and that the Respondent has been illegally appropriating the said amounts despite repeated objections raised by the Original Appellant.
10 The Original Appellant further contended that, on 14 th June, 1986, the Original Appellant observed that the Respondent was showing the properties to some brokers and builders, and there was an imminent apprehension in the mind of the Original Appellant that the Respondent would make unlawful gains in terms of monetary consideration by transferring the right, title and interest in the said properties, despite not being entitled thereto, and, therefore also the Original Appellant was constrained to file the present Suit.
11 The Respondent filed a Written Statement on 21 st August, 1986, denying the averments and contentions made in the Plaint. The Respondent submitted that the Original Appellant had omitted to ask for further and other reliefs which could have been asked in the present Suit and, therefore, on the said ground itself, the present Suit was not maintainable and was required to be dismissed with costs. The Respondent further submitted that there was a misjoinder of cause of action and that the present Suit is barred by the law of limitation as regards the estate of Sonabai Mandalkar.
12 The Respondent contended that she is the lawfully wedded wife of the deceased Gangaram Mandalkar and the Original Appellant is S.R.JOSHI 5 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc her step-son. Moreover, a daughter, Shaila, was born out of the the said wedlock on 2nd July, 1953 and the Original Appellant has suppressed this fact from the Court. The Respondent contended that her husband, Gangaram Mandalkar, acquired the aforesaid properties in his own rights. Since the Respondent was the lawfully wedded wife of Gangaram Mandalkar, and since the daughter Shaila was born out of the said wedlock, the Respondent contended that both of them are heirs and legal representatives of the deceased Gangaram Mandalkar and, therefore, the Original Appellant is not entitled for the declaration as prayed for in the present Suit.
13 As regards the custody of the documents with the Respondent, she has denied the allegations and submitted that the Original Appellant was not entitled to the custody of the documents.
14 The Respondent further contended that her husband, Gangaram Mandalkar, died leaving a Will dated 6 th November, 1984 and thereby bequeathed the two properties mentioned in Exhibits 'A' and 'B' to the Plaint in her favour and, therefore, the Respondent had became the owner thereof. Moreover, the Respondent contended that the her husband has mentioned in the said Will that the Respondent is his second wife. Further, Gangaram Mandalkar had got issued a ration card and the name of the Respondent was shown in the said ration card as his wife and the name of Shaila was mentioned in the said ration card as his daughter.
15 Further, the Respondent contended that the said Shaila got married on 9th December, 1978 with one Chandrakant, son of Baburao S.R.JOSHI 6 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc Gopal Kudwadkar. At that time, Gangaram Mandalkar distributed marriage invitation cards and the name of the Respondent was mentioned as one of the invitors as the wife of deceased Gangaram.
16 The Respondent further contended that the Original Appellant was on hostile terms with his father and never visited his father. The Original Appellant did not call the Respondent as his mother nor did he attend the marriage of his sister Shaila. The Original Appellant attended the funeral of deceased Gangaram Mandalkar only after the advice of friends and relatives, and performed last rites of the deceased father but the expenses thereof were incurred by the Respondent.
17 Based on the pleadings, the Learned Trial Judge framed the Issues as mentioned below. The Original Appellant examined himself and produced documentary evidence. The Respondent examined one Ramesh Kalinger and herself and produced documentary evidence.
18 Certain Issues were not pressed before the Learned Trial Judge. Further, the Appellants have challenged the findings only in respect of certain Issues. In these circumstances, I have considered it appropriate to record my reasons and findings on the basis of the Issues framed by the Learned Trial Judge.
19 The Learned Trial Judge framed the Issues and answered them as mentioned below:-
(1) Whether the Suit filed by the Plaintiff is maintainable? - The present Suit is maintainable in respect of the properties bearing CTS S.R.JOSHI 7 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc No.1015 and 1015/1 at Malad, Bombay, but is not maintainable in respect of the property bearing CTS No. 1025 and 1025/1 to 6 and property bearing CTS No. 973 at Malad, Mumbai. (2) Whether there is misjoinder of causes of action? - Not pressed. (3) Whether there is non-joinder of necessary parties? - Not pressed. (4) Whether the Suit is barred under the law of limitation about the estate of Sonabai Gangaram Mandalkar? - In the affirmative. (5) Whether the Plaintiff is the sole owner of the estate of the Sonabai Gangaram Mandalkar and Gangaram Hiraji Mandalkar ? - In the negative.
(6) Whether the Plaintiff is the sole owner of all the properties described in the Plaint? - In the negative.
(7) Whether the Defendant is the legatee under the last Will and Testament of Gangaram Hiraji Mandalkar ? - Not pressed. (8) Whether the Plaintiff is entitled to any relief and if so what? - In the negative.
(9) Does the Defendant prove that she is legally wedded wife of late Gangaram Hiraji Mandalkar? - In the negative. (10) Does the Defendant prove that the alleged Will dated 6 th November, 1984 by Gangaram Hiraji Mandalkar is valid and legally operative ? - Not pressed.
(11) What order and costs? - As per final order.
20 Although Issue No.1 is partly decided against the Original Appellant, the learned counsel for the Appellants has not pressed the Appeal in respect of the said Issue No.1. For this reason, the same is not considered in this Judgement.
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21 Issue Nos.2 and 3 were not pressed at the trial of the Suit
itself, and, therefore, have not been considered by the Learned Trial Judge.
22 Issue No.4, i.e. whether the Suit is barred by law of limitation in respect of estate of the Sonabai Gangaram Mandalkar, has been answered against the Appellant. The Learned Trial Judge held that the properties bearing CTS No. 1015 and 1015/1 and CTS No. 1025 and 1025/1 to 6 being self acquired properties of Sonabai Gangaram Mandalkar, the mother of the Original Appellant having expired on 16 th June, 1967 and the Original Appellant being 16 to 17 years old at that time (i.e. minor), the right to seek the declaration in respect of the said two properties accrued to the Original Appellant when the Original Appellant attained majority in the year 1972, as per provisions of Article 58 of the Limitation Act, 1963 ("the Limitation Act"). The Learned Trial Judge held that, therefore, the suit for declaration in respect of the said two properties was required to be filed within a period of three years therefrom, i.e. till 1975. However, the Original Appellant had filed the present Suit on 17th June, 1986, i.e. beyond the period of almost 11 years, and, therefore the Suit in respect of the said two properties was barred by limitation by virtue of the provisions of Article 58 of the Limitation Act.
23 Further, the Learned Trial Judge held that the Original Appellant submitted an Application on 5th April, 1974 before the City Survey Officer V to enter his name upon the aforesaid two properties when the City Survey Officer V passed an Order on 31 st May, 1976 holding that there was an oral partition between the Original Appellant and his S.R.JOSHI 9 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc father Gangaram Mandalkar, and directed to enter the name of the Appellant in respect of the properties bearing CTS No. 1015 and 1015/1 and the name of Gangaram Mandalkar in respect of the properties bearing CTS Nos. 1025 and 1025/1 to 6. The Original Appellant filed an Appeal challenging the said Order but the same was dismissed on the ground of limitation. The Learned Trial Judge held that, assuming that the Original Appellant agitated his right bonafidely by way of the said proceedings, it was atleast expected from the Original Appellant to file the suit for declaration of his rights regarding the said two properties within a period of three years from the date of the Order passed by the City Survey Officer V, i.e. on 31st May, 1976. However the Original Appellant failed to do so and, therefore, also, the present suit was barred by limitation by virtue of the provisions of Article 58 of the Limitation Act in respect of the said two properties.
24 The learned Counsel appearing on behalf of the Appellants submitted that the Learned Trial Judge had erred in holding that the present suit is barred by the law of limitation in respect of the aforesaid two properties. The learned Counsel appearing on behalf of the Appellants submitted that the period of limitation ought to have been considered from the death of the father of the Original Appellant on 24 th April, 1985. The learned Counsel for the Appellants submitted that, if the period of limitation had been considered from that date, then the suit, which was filed on 17th June, 1986, was perfectly within the period of limitation.
25 On the other hand, the learned Counsel, appearing on behalf of the Respondent, supported the findings of the Learned Trial Judge.
S.R.JOSHI 10 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc 26 Article 58 of the Limitation Act reads as under:- Description of suit Period of limitation Time from which period begins to run 58. To obtain any other Three years When the right to sue first declaration. accrues 27 The Original Appellant's suit is for a declaration that he is the
owner of the aforesaid said two properties which form a part of the estate of his mother.
28 The question that arises is when the right to sue first accrued to the Original Appellant in respect of the aforesaid two properties. The Original Appellant's mother passed away on 16 th February, 1967. At that time, the Appellant was about 16 to 17 years old, and, hence, was a minor. The Original Appellant was claiming the said properties as the heir of his mother, against his father. Therefore, the right to seek a declaration in respect of the these two properties first accrued to the Original Appellant, as per the provisions of Article 58 of the Limitation Act, in the year 1972, when the Original Appellant attained majority. In these circumstances, in my view, a suit for declaration in respect of the said two properties was required to be filed within a period of three years from 1972 i.e. till 1975. However, the Original Appellant filed the present Suit on 17th June, 1986, i.e. after a period of almost 14 years when the right to sue first accrued to him. Hence, in my view, the present Suit is clearly barred by the law of limitation by virtue of the provisions of Article 58 of the Limitation Act.
29 As regards the contention of the Appellants that the period of limitation ought to have been considered from the date of death of the S.R.JOSHI 11 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc father of the Original Appellant on 24th February, 1985, I am afraid, I am unable to accept the same.
30 In this context, it is important to note that the Original Appellant was making a claim to the aforesaid two properties, which, according to him, formed a part of the estate of his mother, against his father, and, therefore, the Original Appellant ought to have sued within a period of three years from attaining majority in 1972. The Original Appellant's contention, that his father beneficially enjoyed the said properties, is irrelevant for the purposes of Article 58 of the Limitation Act, which requires the suit for a declaration to be filed within a period of three years from when the right to sue first accrued.
31 Further, the fact, that right to sue first accrued to the Original Appellant on attaining majority in 1972, is also demonstrated by the fact that the Original Appellant submitted an Application on 5 th April, 1974 before the City Survey Officer V to enter his name upon the aforesaid two properties. In my view, this clearly shows that, even according to the Original Appellant, the right to sue first accrued to him when he attained majority.
32 For all the aforesaid reasons, in my view, the Learned Trial Judge was right in holding that the Suit is barred by the law of limitation by virtue of the provisions of Article 58 of the Limitation Act and accordingly in answering Issue No.4 in the affirmative. The said findings of the Learned Trial Judge require no interference by this Court.
33 Issue No.5, i.e. whether the Plaintiff is the sole owner of the estates of Sonabai and Gangaram Hiraji Mandalkar and Issue No. 6, i.e. whether the Plaintiff is the sole owner of all the properties described in S.R.JOSHI 12 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc the Plaint, have been answered against the Original Appellant by the Learned Trial Judge.
34 The Learned Trial Judge held that the Original Appellant has not produced any cogent documentary evidence to prove that the properties i.e. CTS Nos. 1015 and 1015/1 at Malad, Mumbai and CTS No.1025 and 1025/1 to 6 at Malad, Mumbai were owned and purchased by Sonabai Mandalkar and the property bearing CTS No. 973 at Malad, Mumbai was purchased and owned by Gangaram Mandalkar. The Learned Trial Judge further held that the property bearing CTS No. 1015 and 1015/1 at Malad, Bombay was in the possession of the Original Appellant and the other two properties were in the possession of the Respondent, through tenants, and the Respondent had produced, during cross examination, the assessment bill in respect of the aforesaid two properties issued by the BMC, dated 1st April, 2000, which is in the name of the Respondent.
35 Further, the Learned Trial Judge also held that the Respondent had denied that Sonabai Mandalkar purchased the said two immovable properties out of her own earnings. Moreover, the Respondent had stated in her deposition that the contention of the Original Appellant, that he is the only heir and legal representative of the estate of Sonabai Mandalkar and Gangaram Mandalkar, is false.
36 The Learned Trial Judge further held that, in the light of the aforesaid position, the only cogent evidence before him was the Order dated 3rd May, 1976 passed by the City Survey Officer V whereby the name of the Original Appellant was directed to be entered in respect of S.R.JOSHI 13 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc the property bearing CTS No. 1015 and 1015/1 at Malad, Mumbai and the name of Gangaram Mandalkar was directed to be entered on the record in respect of the property bearing CTS No. 1025 and 1025/1 to 6 at Malad, Mumbai, considering the oral partition between the Original Appellant and his father Gangaram Mandalkar and also considering the possession of the said properties with the Original Appellant and Gangaram Mandalkar, respectively.
37 Further, the Learned Trial Judge has also noted the observations made in the said Order that the submission made by the Original Appellant that he is the only heir and legal representative of Sonabai Mandalkar and the declaration executed by the Original Appellant in that respect before the Metropolitan Magistrate, were not believable. Considering all these circumstances, the Learned Trial Judge answered Issue Nos. 5 and 6 in the negative and against the Original Appellant.
38 The learned Counsel appearing on behalf of the Appellants submitted that, assuming that there was a partition between the Original Appellant and his father, after the passing away of the father, the properties must come to the Original Appellant as there were no other legal heir of Sonabai Mandalkar and Gangaram Mandalkar.
39 On the other hand, the learned Counsel appearing on behalf of the Respondent supported the judgement of the Trial Court on the said Issues. The learned Counsel appearing for the Respondent relied upon a judgement of the Hon'ble Supreme Court in the case of Union of India & Others v/s. Vasavi Co-operative Housing Society & Others (Civil Appeal No. S.R.JOSHI 14 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc 4702 of 2004 dated 7th January, 2014) and submitted that it is well settled in law that the Original Appellant, who was the Plaintiff, must succeed or fail on his own case. The learned Counsel appearing for the Respondent further submitted that, in the light of this position in law, the Appellant had to independently prove his title to the said properties, and the fact that it was held that the Respondent is not the legally wedded wife of Gangaram Hiraji Mandalkar is no answer and does not come to the aid of the Appellant. The learned Counsel appearing for the Respondent further submitted that the Respondent had disputed the title of Sonabai and, therefore, the Original Appellant was required to prove the title of Sonabai independently.
40 Before considering the rival submissions on Issue Nos. 5 and 6, it would be appropriate to refer to the law on the subject. The law on the subject is set out in the judgement of the Hon'ble Supreme Court in Vasavi Co-operative Housing Society Ltd. (supra). Paragraphs 12 to 15 of the said Judgement are relevant and read as under:-
"12:- It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
13:- The High Court, we noticed, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the Court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by Defendants in support of their case probabalises the case set up by the plaintiff, S.R.JOSHI 15 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc such evidence cannot be ignored and kept out of consideration.
14:- At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran Mar Baseelios Catholicos V. Thukalan Paulo Avira reported in AIR 1959 Supreme Court 31 observed that "in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title." In Nagar Palika, Jind V. Jagat Singh, Advocate, 1995(2) R.R.R. 444 :
1995(3) R.R.R. 74 (SC) : (1995) 3 SCC 426, this Court held as under :
"the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."
41 As per the law laid down by the Hon'ble Supreme Court, the Plaintiff, in a Suit for the declaration of title and possession, could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the Defendants have proved their case or not. The Hon'ble Supreme Court further held that even if the title set up by the Defendants is found against them, in the absence of the establishment of the Plaintiffs own title, the Plaintiff must be non-suited. In the light of the S.R.JOSHI 16 of 18 ::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:21:41 ::: 34-fa-1211-2001-judgement.doc aforesaid position of law, let us now examine whether the Appellant has led any evidence to prove his title to the three properties in respect of which a declaration is sought by him.
42 As far as the two properties of Sonabai Mandalkar are concerned, the Original Appellant has claimed title on the basis that Sonabai Mandalkar had purchased these properties. In the Written Statement filed by her, the Respondent has denied that Sonabai Mandalkar purchased the said two properties out of her own earnings. Therefore, the onus was on the Original Appellant to prove the same. The Original Appellant has not produced any documentary evidence to show that Sonabai Mandalkar had purchased the said two properties out of her own earnings. Therefore, the Original Appellant is not entitled to any declaration of title in respect of these two properties.
43 As far as the property of Gangaram Mandalkar is concerned, the Original Appellant has claimed the title on the basis that he was the sole heir of Gangaram Mandalkar. This was denied by the Respondent. Again the Original Appellant failed to prove that he is the sole heir of Gangaram Mandalkar. The Original Appellant was required to prove the same in his evidence but has failed to do so.
44 For the aforesaid reasons, in my view, the Learned Trial Judge has correctly answered Issue Nos. 5 and 6 against the Original Appellant.
45 As far as Issue No.7 is concerned, the same was not pressed in the trial itself and, therefore, has not been considered by the Learned Trial Judge.
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46 As far as Issue Nos. 8 and 11 are concerned, the Learned Trial
Judge has denied reliefs to the Original Appellant on the basis of his findings in the impugned judgement. For all the reasons stated herein above, in my view, the decision of the Learned Trial Judge on Issue Nos. 8 and 11 does not call for any interference.
47 As far as Issue No.9 is concerned, the same has been answered by the Learned Trial Judge against the Respondent. The Respondent has not filed any Appeal or Cross Objection before this Court, and, therefore, the findings of the Learned Trial Judge on the said Issue No.9 have not been considered in this Judgement.
48 As far as Issue No.10 is concerned, again the same was not pressed at the trial of the Suit itself and, therefore, has not been considered by the Learned Trial Judge.
49 In the light of the aforesaid findings and reasons, First Appeal No. 1211 of 2001 is hereby dismissed.
50 In the facts and circumstances of the case, there will be no order as to costs.
51 The learned Counsel appearing on behalf of the Appellant seeks a stay of four weeks of this Judgement.
52 At his request, the operation of the judgement is stayed for a period of four weeks from today.
(FIRDOSH P. POONIWALLA,J.)
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