Bombay High Court
Namdev Ramrao Gaikwad vs Madhav Ramrao Gaikwad on 2 September, 2021
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
914-sa-188-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 SECOND APPEAL NO.188 OF 2021
WITH CA/4547/2021
NAMDEV RAMRAO GAIKWAD
VERSUS
MADHAV RAMRAO GAIKWAD
...
Advocate for Appellant : Mr. Shinde Balaji S.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 02.09.2021
ORDER :-
. Heard learned Advocate for the appellant.
2. Learned Advocate Mr. Shrikrushna Solunke made statement on 29.06.2021 that he has instructions to appear for the sole respondent. He was directed to file Vakalatnama within a period of two weeks, however, he has not filed it. He is not present. Under such circumstance, when the second appeal is for admission, submissions on behalf of the appellant have been heard in order to see whether substantial questions of law are made out.
3. Present appellant is the original plaintiff, who had filed suit i.e. Regular Civil Suit No.304 of 2010 for declaration of ownership and perpetual injunction. He contended that he as well as defendant, who is (1) ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 04:47:11 ::: 914-sa-188-2021.odt his real brother purchased 81 R land from Survey No.76 situated at village Bhakaskheda, Tq. Udgir, Dist. Latur for consideration of Rs.2,50,000/- by way of registered sale deed dated 11.07.2008. It is stated that it was purchased from their own sister. According to the plaintiff, later on in the month of March, 2010, there was oral partition between him and the defendant. 41 R land was allotted to the share of plaintiff in the said oral partition of which the boundaries have been given in the plaint and rest of the land was given to the share of defendant. When he found that the defendant is disturbing his possession, he filed the suit.
4. Defendant resisted the claim of the plaintiff by filing written statement. It was accepted that he along with the plaintiff purchased 81 R land from their sister, however, it is then stated that he was the person who had deposited amount of Rs.300,000/- on 21.08.2008 and Rs.1,00,000/- on 06.02.2009 in Tata Memorial Center for Rural Caner Project and Nargis Datt Memorial Cancer Hospital, Barshi for medical treatment of the sister. According to him, the plaintiff had not contributed to the medical expenses of the sister and, therefore, he alone is the owner of the property. There was no question of partition.
5. The suit was decreed. Plaintiff was held to be the owner of land admeasuring 41 R described in the plaint from Survey No.76/1 and the (2) ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 04:47:11 ::: 914-sa-188-2021.odt defendant was restrained from disturbing the peaceful possession of the plaintiff over the suit land.
6. Original defendant challenged the said decree in Regular Civil Appeal No.31 of 2017 before the learned Ad-hoc District Judge-1, Udgir. The appeal came to be allowed and the judgment and decree passed by the learned Lower Court has been quashed and set aside. The suit was dismissed. It is to be noted from the impugned judgment passed by the learned first Appellate Court that he had not framed any issue as regards the ownership over the property is concerned. He has directly taken the point of oral partition and obstruction. In the discussion, it appears that no such issue was raised as regards the joint purchase or sale deed in the name of plaintiff as well as defendant and therefore, in view of the said sale deed, name of the plaintiff and defendant was mutated in the revenue record as joint owners. There appears to be no discussion by the learned first Appellate Court to the claim of the defendant that he alone is the owner of the property. After holding plaintiff and defendant as joint owners, the first Appellate Court has come to the conclusion that plaintiff has failed to prove the partition and then the alleged obstruction by the defendant.
7. In order to prove the oral partition, the plaintiff had examined three witnesses. The testimony of those witnesses has been discarded by (3) ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 04:47:11 ::: 914-sa-188-2021.odt the first Appellate Court. Under such circumstance, when evidence was led and the Trial Court is considering the same evidence as a proof of partition, whether it can be discarded by the first Appellate Court on some flimsy ground, is required to be considered and, therefore, case is made out to admit the second appeal as it is raising substantial questions of law as contemplated under Section 100 of the Code of Civil Procedure. Hence, second appeal stands admitted. Following are the substantial questions of law :-
I) Whether the first Appellate Court was justified in discarding the oral evidence of partition between the plaintiff and the defendant in respect of the suit land Survey No.76 and the claim of plaintiff that he received 41 R land numbered as Survey No.76/1 in the said partition?
II) Whether the law expects documentary evidence in respect of partition and when theory of oral partition is canvassed, then also something more than oral evidence is expected to be led by the prepounder of the said theory?
III) Whether the defendant had proved exclusive ownership over 81 R land in Survey No.76 situated at village Bhakaskheda, Tq. Udgir, Dist. Latur?
IV) Whether the first Appellate Court was justified in reversing the judgment and decree passed by the Trial Court?(4) ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 04:47:11 :::
914-sa-188-2021.odt
8. Issue notice to the respondent, returnable on 11.11.2021.
9. Call record and proceedings.
10. Civil Application No.4547 of 2021 to be heard along with the second appeal.
[SMT. VIBHA KANKANWADI, J.] scm (5) ::: Uploaded on - 03/09/2021 ::: Downloaded on - 04/09/2021 04:47:11 :::