Bombay High Court
Bhagwanrao Shankarrao Chinchalkar ... vs The Tahsildar, Bhokar And Others on 6 January, 2026
2026:BHC-AUG:116
1 SA.242-12 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.242 OF 2012
WITH
CIVIL APPLICATION NO.11689 OF 2013
IN SA/242/2012
Bhagwanrao s/o Shankarrao Chinchalkar
(Died) through L.Rs.
1. Anusayabai w/o Bhagwanrao Dhawale,
Age 67 years, Occu: Household,
2. Godavaribai w/o Raosaheb Lamkanikar,
Age Major, Occu: Household,
3. Chandrakant s/o Bhagwanrrao Dhawal,
Age 44 years, Occu: Business,
4. Suryakant s/o Bhagwanrao Dhawal,
Age 47 years, Occu: Business,
All R/o. Bhokar, Dist. Nanded
5. Kalpana w/o Jagdish Puyed,
Age 36 years, Occu: Household. ... Appellants
(Orig. Plaintiffs)
VERSUS
1. The Tahsildar, Tahsil Office,
Bhokar, Tq. Bhokar, Dist. Nanded.
2. Shankarrao s/o Bhujangrao Patil
Chinchalkar - Deleted.
3. Pundlik s/o Shankarrao Chinchalkar,
Died Through his LR's.
3A. Aasha Pundlikrao Chinchalkar,
Age: 65 years, Occu: Housewife.
2 SA.242-12 & ors.odt
3B. Vinod Pundlikrao Chinchalkar,
Age: 44 years, Occu: Business.
3C. Madhavi Umesh Durge,
Age: 42 years, Occu: Doctor.
3D. Vaishali Ravi Jadhav,
Age: 40 years, Occu: Housewife.
3E. Priyanka Sachin Pawar,
Age: 38 years, Occu: Housewife.
3A to 3E All R/o. In front of
Panchayat Samitee, Bhokar,
Tq. Bhokar, Dist: Nanded.
4. Subhash s/o Narayanrao Patil,
Age: 50 years, Occu: Agril.,
R/o Bhokar, Tq. Bhokar,
Dist. Nanded. ... Respondents
(Ori. Defts.)
SECOND APPEAL NO.782 OF 2015
Bhagwanrao S/o Shankarrao Chinchalkar,
(Died) Through L.Rs.
1. Anusayabai W/o Bhagwanrao Dhawale,
Age: 67 years, Occ: Household,
2. Godavaribai W/o Raosaheb Lamkanikar,
Age: Major, Occ: Household,
3. Chandrakant S/o Bhagwanrao Dhawal,
Age: 44 years, Occ: Business,
4. Suryakant S/o Bhagwanrao Dhawale,
Age: 47 years, Occ: Business,
All R/o Bhokar, Dist. Nanded.
3 SA.242-12 & ors.odt
5. Kalpana W/o Jagdish Puyed,
Age: 36 years, Occ: Household,
R/o Nanded. ... Appellants
(Ori. Plaintiffs)
Versus
1. The Tahsildar,
Tahsil Office, Bhokar,
Tq. Bhokar, Dist. Nanded.
2. Shankarrao S/o Bhujangrao Patil,
(Died) hence deleted.
3. Pundlik S/o Shankarrao Chinchalkar,
(Died) Through L.Rs.
3A. Aasha Pundlikrao Chinchalkar,
Age: 65 years, Occu: Housewife,
3B. Vinod Punilikrao Chinchalkar,
Age: 44 years, Occu: Business,
3C. Madhavi Umesh Durge,
Age: 42 years, Occu: Doctor.
3D. Vaishali Ravi Jadhav.
Age: 40 years, Occu: Housewife,
3E. Priyanka Sachin Pawar,
Age: 38 years, Occu: Housewife.
3A to 3E All R/o. in front of
Panchayat Samitee, Bhokar,
Tq. Bhokar, Dist: Nanded.
4. Subhash S/o Narayanrao Patil,
Age: 50 years, Occ: Agri.,
R/o Bhokar, Tq. Bhokar,
Dist. Nanded. ... Respondents
(Ori. Defs.)
4 SA.242-12 & ors.odt
...
Advocate for Appellants : Mr. R. N. Dhorde (Senior Counsel)
i/b Mr. V. R. Dhorde.
AGP for Respondent/s-State : Mrs. M. N. Ghanekar.
Advocate for Respondent No.4 : Mr. V. D. Hon (Senior Counsel)
i/b Mr. A. V. Hon.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 08.12.2025
PRONOUNCED ON : 06.01.2026
JUDGMENT :
1. Heard finally with consent of both the sides.
2. Both second appeals are filed by original plaintiff against the judgment and decree passed by Lower Appellate Court reversing the decree passed by the Trial Court. Second Appeal No.782 of 2015 is arising out of the decree passed in counter claim in favour of respondent No.4. The parties are referred to by their original status in the Trial Court. This Court is referring to the paper book of Second Appeal No.242 of 2012.
3. Regular Civil Suit No.46 of 2010 (Old 199 of 2000) was filed by the appellant/plaintiff for declaration and injunction in respect of 41 R., of land of Gut No.499 situated at Chinchala. The defendant Nos.2 to 4 contested the suit and also filed 5 SA.242-12 & ors.odt counter claim for declaration and injunction. Trial Court decreed the suit and dismissed counter claim vide judgment dated 19.03.2011. Being aggrieved, defendant No.4 preferred Regular Civil Appeal No.14 of 2011. Lower Appellate Court non-suited the plaintiff and allowed the counter claim, by reversing the decree of the Trial Court vide judgment dated 03.03.2012.
4. The relationship is undisputed. Plaintiff and defendant No.3 are real brothers and defendant No.2 Shankarrao is their father. Defendant No.4 is the purchaser of the suit property.
5. It is the case of the plaintiff that defendant Nos.2, 3 and himself formed a joint Hindu family which was having various immovable properties at village Chinchala, Bhokar and Nanded. A partition was effected by unregistered partition deed on 10.09.1984 amongst them. The properties were distributed by metes and bounds and they were in possession of the respective shares after the partition. The suit land i.e. Gut No.499, Survey No.22, 51, house property at Chinchala, Bhokar and CL - III license were allotted to the plaintiff. Defendant No.3 Pundlik was allotted survey Nos.5, 6 part of 22 6 SA.242-12 & ors.odt at village Chinchala, house property at Chinchala and Bhokar. Defendant No.2 Shankarrao was also allotted Survey No.20 which was to be devolved upon the sons after his death.
6. It is stated by the plaintiff that suit land was in his possession and mutation entry No.485 was also effected in his name. His name was recorded in 7/12 extracts also. It is contended that he started a poultry business by incurring loan from the bank. The suit land is stated to be mortgaged by him. It is further contended that the loan was repaid by him. Defendant Nos.2 and 3 are stated to have obstructed him in running the poultry form. It is further contended that defendant No.3 executed sale deed on 25.02.2000 in favour of defendant No.4. Hence present suit was filed by him.
7. Defendant No.1 contested the suit by filing written statement contending that it was a dispute amongst plaintiff and defendant Nos.2 to 4. It is further contended that the factum of partition was reported to the revenue authority and mutation entry was also effected.
8. Defendant Nos.2 to 4 contested the suit on the ground 7 SA.242-12 & ors.odt that defendant No.3 was owner of the suit land as it was purchased exclusively in his name vide sale deed dated 01.12.1979. It is further contended that defendant No.3 sold the suit land to defendant No.4 vide registered sale deed dated 25.02.2000 and since then defendant No.4 is in possession of it. It is further contended that defendant No.4 is the bonafide purchaser for value. They also raised a counter claim that plaintiff was obstructing the possession. Hence, the relief of declaration and injunction was solicited against the plaintiff.
9. Plaintiff filed written statement to the counter claim and denied the pleadings and the prayers.
10. Plaintiff adduced oral evidence of three witnesses including himself. The defendants adduced oral evidence of three witnesses including evidence of defendant Nos.3 and 4. The unregistered partition deed is marked at Exh.163. The sale deed dated 01.12.1979 is marked at Exh.230. The sale deed dated 25.02.2000 is marked at Exh.227. The mutation entry No.485 recording name of the plaintiff is marked at Exh.143.
8 SA.242-12 & ors.odt
11. In the Trial Court, defendant No.3 resiled from his pleadings and supported the plaintiff. He was cross-examined by the defendant No.4. Unregistered partition deed was sought to be impounded by the plaintiff by tendering application. It was contested and after hearing both the sides' application was allowed and document was referred for impounding. After following due process of law, the plaintiff paid deficit stamp fee and penalty amounting of Rs.4,672/-.
12. The matter was contested by the parties on the revenue side also. Tahsildar was approached by the plaintiff for recording his name against the suit land. By order dated 05.03.1992 his name was recorded. The order was challenged before Higher Forum and the dispute is still pending.
13. During the course of hearing before the Trial Court, the application Exh.47 was submitted by parties for compromising the suit. The settlement was not materialized. This is the broad outline of the controversy involved in the matter.
14. Following substantial questions of law are formulated by this Court in both the appeals :
9 SA.242-12 & ors.odt SECOND APPEAL NO. 782/2015
i) Whether the plaintiff in the present matter proves that vendor of the counter claimant had no legal title and could not have transferred the property to the counter claimant ?
ii) Whether the partition in the absence of unregistered partition-deed is inadmissible ?
SECOND APPEAL NO. 242/2012
iii) Whether the Appellate Court has misread and misconstrued the provision of the Indian Registration Act in holding that the partition deed is required to be registered and unless and until it is registered, it is inadmissible in the evidence ?
iv) Whether in view of the judgments reported in [AIR 1976 SC 807, [AIR 2004 SC 4130] and [2005 AIR SCW 5650), the Appellate Court has erroneously held that the partition deed is required to be registered otherwise, it is inadmissible in the evidence?
v) Whether, the Appellate Court has ignored the documentary evidence on record namely, the document at Exhibit-184 the application to the Land Development Bank in the year 1994-95 for grant of loan to the Poultry Farm by the Appellants/Plaintiffs as well as the report of the Agricultural Officer of the Bank at Exhibit-186 and the mortgage deed executed at Exhibit-181 by the Plaintiffs/ Appellants in favour of the Land Development Bank for taking loan for Poultry Farm and actually running the Poultry in the said land Survey No.22a and Block No.449 and has erroneously held that there was no partition and 10 SA.242-12 & ors.odt same was not acted upon and the Appellants were not in possession of the property ?
Additional substantial Question of law in Second Appeal No. 242/2012 required to be framed.
vi) Whether the Appellate Court has erroneously allowed the appeal no.14/2011 filed by the Def. No.4 when judgment and decree dated 19.03.2011 passed in RCS No.46/2010 [old RCS No.199/2000] i.e. suit which is not challenged by the Def. no.3 Pundlik transferor and the same has become final from whom it has been transferred to Def. No.4.
vii) Whether the in view of fact that entire dispute was regarding the Gut No.499 as claimed by the Def. No.2 to 4 to be self acquired property of the Def No. 3 without framing issue and without proving the same and Appellate Court has erroneously allowed the appeal by shifting the burden on the plaintiff when defendant has claimed self acquired property."
15. Learned senior counsel Mr. R. N. Dhorde would submit that the suit land was purchased from the nucleus of the joint family and it was not exclusive asset of defendant No.3. It is submitted that the partition deed Exh.163 though unregistered one is admissible in evidence and it has been acted upon by the parties. It is submitted that suit land was given to the plaintiff and he was running poultry business and incurred financial 11 SA.242-12 & ors.odt assistance also for the same. Defendant No.3 was also allotted properties of the joint family. The admissibility of Exh.163 cannot be questioned due to its impounding and the order passed below Exh.153. It is further submitted that suit land was mutated in the revenue record in the name of plaintiff and that is still in possession of his heirs. It is further submitted that appeal preferred by defendant No.4 before the Lower Appellate Court was not tenable in the absence of any challenge to the decree passed by the Trial Court by defendant No.3. It is further submitted that Lower Appellate Court committed grave error of jurisdiction in overlooking the settlement at Exh.47, the statement Exh.153, application Exh.158 and order passed thereon. He would further submit that the defendant No.4 cannot be said to be the bonafide purchaser for want of due inquiry into the title of defendant No.3.
16. Per contra, learned senior counsel Mr. Hon submits that the factum of partition has not been established because partition deed was not registered one and it is rightly discarded by the appellate court. The partition deed is absurd document and at the most, it could be said to be agreement between the 12 SA.242-12 & ors.odt parties. The plaintiff ought to have filed suit for specific performance of contract instead of declaration and injunction. It is submitted that by joint written statement defendant Nos.2 and 3 contested the claim of the plaintiff. They deposed against the plaintiff which is rightly appreciated by the Lower Appellate Court. It is further submitted that respondent No.4 purchased suit land vide Exh.227 and is in possession. Therefore, injunction was not granted in favour of the plaintiff in the Courts below. It is further submitted that the suit is defective because sale deed dated 25.02.2000, Exhibit 227, has not been challenged and no relief is solicited.
17. Learned counsel would further emphasis on the facts that plaintiff suppressed material facts regarding running of the liquor business by defendant No.3 and RCS.No.44 of 1999 preferred by the plaintiff. It is further contended that the partition as pleaded by the plaintiff had never taken place because defendant No.3 was running liquor business. He was exclusive owner of the suit land. He transferred it to defendant No.4 along with possession. The sale deed was signed by the plaintiff and defendant No.2. Hence, plaintiff is estopped from 13 SA.242-12 & ors.odt setting up any claim against it. The evidence of plaintiff is shattered in cross examination of P.W.3. The sale deed at Exh.230 has been tampered by the plaintiff to show that Rs.6,000/- was paid by him. It is submitted that Lower Appellate Court is justified in reversing the decree passed by the Trial Court in the suit as well as the counter claim. It is further submitted that as the defendant Nos.2 to 4 had filed joint written statement and lateron defendant Nos.2 and 3 did not support defendant No.4. Therefore, appeal was filed only by defendant No.4 which was rightly entertained.
18. Though there are various substantial questions of law framed in the second appeal, the fulcrum of the controversy is as to whether plaintiff is the owner of the suit land as a fall out of the partition between the parties or it is defendant No.3. The consequential issue is as to the validity of the title of defendant No.4 vide sale deed dated 25.02.2000.
19. At the outset it is necessary to clarify certain aspects of the matter, which are not relevant to decide ownership over the suit land. The parties are litigating on the revenue side as well as for getting liquor license CL - III or its business. Those 14 SA.242-12 & ors.odt decisions are not helpful to decide title of the suit land. Those have limited role in the present matters. The revenue entries are for fiscal purposes and would not confer title. It is informed that Writ Petition No.2668 of 2007 preferred by the defendant No.4 is still pending. The title over the suit land would be decided in the present second appeals.
20. It is also necessary to clarify that the orders passed in the proceedings under Order XXXIX Rule 1 and 2 of the C. P. C. are not decisive. Those are helpful to the extent of possession only. The factum of partition and admissibility of partition deed Exhibit 163 will have to be decided in the present second appeals. The observations of the learned Single Judge in the order dated 08th July, 1999 passed in Civil Revision Application No. 441 of 1999 are prima facie in nature and would not bind this Court. Those cannot be over emphasized.
21. I have gone through partition deed dated 10.09.1984. A partition by metes and bounds was effected by the document. All three members of the family were allotted assets of the joint family. Neither it is a memorandum of partition, nor an agreement amongst the parties as such. Plaintiff is allotted gut 15 SA.242-12 & ors.odt No.499, Survey Nos.22, 51 and house properties, etc. The defendant No.3 is also allotted Survey Nos.05, 06, 22 and house properties, etc. I am of the considered view that its a document requiring compulsory registration and covered by Section 17(1)(b) of the Registration Act.
22. It is rightly submitted by learned senior counsel Mr. Dhorde relying upon Five Judges Bench judgment of the Supreme Court in the case of V. N. Sarin Vs. Ajit Kumar Poplai and another reported in AIR 1966 SC 432 that partition is not a transfer. In the present case, the controversy pertains to the proof of partition which is effected by unregistered instrument. By implication of Section 49 of the Registration Act, instrument is inadmissible for want of registration. In the Trial Court, plaintiff had submitted application Exhibit 153 seeking impounding of partition deed Exhibit 163. The document was referred for impounding. The plaintiff thereafter paid stamp with penalty, amounting to Rs.4,672/-. The plaintiff vide application Exh.158 solicited exhibiting of such impounded document. It was allowed by reasoned order dated 13.03.2006.
23. In view of the law laid down by the Supreme Court in 16 SA.242-12 & ors.odt the case of Kale and others Vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807 , registration of partition deed Exh.163 was mandatory. However, document cannot be discarded altogether because it is being impounded. For collateral purpose like severance of status or the nature of subsequent possession, it can be used. My attention is adverted to following judgments in this regard :
(i) Yellappu Uma Maheswari Vs. Budha Jagadheeswararao reported in 2015 AIR SCW 6184.
(ii) Sita Ram Bhama Vs. Ramvatar Bhama reported in AIR 2018 SC 2479.
(iii) P. Anjanappa (D) by L.Rs. Vs. A. P. Nanjundappa and others in Civil Appeal No.3934 of 2006, which is of three Judges Bench decided on 06.11.2025.
24. Considering principles laid down in first two judgments and in view of impounding of Exh.163 in the case at hand, I am of the considered view that the partition deed is admissible in evidence for the collateral purpose. Last judgment of the Supreme Court of Three Judges Bench also lays down as to 17 SA.242-12 & ors.odt what would be the collateral purpose. In that case, the document styled as Palupatti (Exhibit D-17), which is in the form of partition is held to be admissible and reliable for collateral purpose, though it was not being registered. It is relevant to quote following extract :
"8.9. We therefore hold that Ex.D-17, read with Ex.D-17(a), is admissible and reliable for the collateral purposes of proving that, on and from 11.02.1972, there was severance of joint status between plaintiff no.1 and defendant no.5 and that each thereafter held and enjoyed separately the properties allotted under Ex.D-17(a). We clarify that Ex.D-17 is not treated as a conveyance that creates or extinguishes rights by itself. Our conclusion rests on the severance of status and on the character of subsequent possession and enjoyment as borne out by the writing and the long course of conduct."
25. In this regard my attention is adverted to judgment of the Supreme Court in the matter of Vinod Infra Developers Ltd. Vs. Mahaveer Lunia and others reported in 2025 SCC OnLine SC 1208 by the learned Senior Counsel Mr. Hon. In that case Supreme Court was dealing with unregistered agreement to sale and the objection was raised regarding its admissibility. In those context, law is discussed and observations are made in para No.9 of the judgment. Supreme Court inter alia referred to principles laid down in the matter 18 SA.242-12 & ors.odt of K. B. Saha and Sons (P) Ltd. Vs. Development Consultant Pvt. Ltd. reported in 2008 (8) SCC 564. This judgment will not help defendant No.4 because facts are distinguishable from the case of hand. It did not refer to judgment of Yellappu and Sita Ram. In the matter at hand partition deed is impounded one, though it is unregistered and it is admissible for collateral purposes.
26. Partition deed has been impounded and additional stamp duty of Rs.4,672/- is paid by the plaintiff. P.W. Nos. 1 and 2 are examined to prove the partition deed. The contents and the execution are proved. The permission was granted for exhibiting the document by order dated 13.03.2006 passed below Exhibit 158, which was not challenged by the respondents/defendants. I find no absurdity qua the persons as well as assets mentioned therein. The properties and the allottees are candidly identifiable by reading the document. The suit land is allotted to the plaintiff.
27. The partition deed is exhibited in the Trial Court after considering the oral evidence as well as order below Exhibit 19 SA.242-12 & ors.odt
158. No timely objection was raised by the defendants. It is impermissible for them to question the instrument in the wake of Section 36 of the Indian Stamp Act. The judgment of the Supreme Court in the case of Javer Chand and others Vs. Pukhraj Surana reported in AIR 1961 SC 1655 is rightly cited by the plaintiff. I find that partition deed Exhibit 163 is admissible in evidence, albeit for collateral purposes. The substantial question of law No.(ii) is answered accordingly.
28. Learned senior counsel Mr. Hon has relied upon the following judgments :
(i) Kale and others Vs. Deputy Director of Consolidation and others reported in (1976) 3 SCC 119.
(ii) K. G. Shivilingappa (D) through L.Rs. and others Vs. G. S. Eswarappa and others reported in (2004) 12 SCC 189.
(iii) Anteshwar Anand Vs. Virender Mohan Singh and others reported in (2006) 1 SCC 148.
(iv) K. Arumuga Vehaiah Vs. P. R. Ramasamy and another reported in (2022) 3 SCC 757.
20 SA.242-12 & ors.odt
29. The ratio laid down in the above judgments would indicate that the partition deed in question required compulsory registration as it is covered by Section 17(1)(b). It is rightly contended that the document in question makes the partition by metes and bounds in various immovable properties of the joint family and in the absence of registration, the document is inadmissible in evidence. However, the above judgments would not cover a case of subsequent impounding of document. Hence, relying upon the judgments cited above, the document in question cannot be discarded altogether. Hence, the substantial questions of law at Sr. No. (iii) and (iv) will have to be answered in favour of the plaintiff.
30. Having observed that partition deed can be used for collateral purpose, the burden is upon the plaintiff to show that suit land was allotted to him. It was a case of the defendant No.3 before the Trial Court that suit land was purchased by him exclusively vide registered sale deed dated 01.12.1979, Exhibit 230. It was mentioned in the sale deed that out of total consideration of Rs.8,500/-, Rs.2,500/- was already received from the defendant No.3 and Rs.6,000/- was paid by the 21 SA.242-12 & ors.odt plaintiff, albeit, plaintiff's name is over written by scoring the defendant No.3. The endorsement on the said sale deed before the Sub Registrar also indicates payment of Rs.6,000/- through plaintiff at the time of registration. It is not case of the plaintiff that the suit land is being purchased exclusively by him. His theory is that it was purchased in the name of defendant No. 3
- Pundalik, but from the nucleus of undivided joint family. The partition deed Exhibit 163 shows that before partition there were number of agricultural lands, plots, houses and a liquor business which would constitute the nucleus to purchase the suit land. The parties are unanimous that those were joint family properties.
31. Defendant No.3 contested the suit contending that suit land was exclusively purchased by him on 01.12.1979 vide sale deed at Exhibit 230. He deposed as D.W. No.2. His pleadings and deposition do not disclose the source of income. Mere statement that from his independent income the suit land was purchased, is not sufficient. His further conduct by tendering pursis at Exhibit 47 and application Exhibit 153 would corroborate plaintiff's case that suit land was purchased by 22 SA.242-12 & ors.odt joint family, in the name of defendant No.3. The plaintiff is successful in making out a case that there was sufficient nucleus of the joint family to purchase the suit land. Learned counsel Mr. Dhorde has adverted my attention to the judgments of the Supreme Court in the matters of Adiveppa and others Vs. Bhimappa and another reported in AIR 2017 SC 4465 and Kirpal Kaur Vs. Jitender Pal Singh and others reported in AIR 2015 SC 2967. As per ratio laid down therein, the burden was upon defendant No.3 to prove that the suit land is self acquired property, which is not discharged by him. Due to the sale deed Exhibit 230 burden was shifted to the plaintiff. The plaintiff discharged it adequately by leading evidence to hold that the suit land is a joint family property. The substantial question of law No.(i) is answered in favour of plaintiff.
32. The subsequent cross examination of defendant No.3 discloses the admissions supporting the plaintiff's case. He was cross examined by the defendant No.4 for being retracted from earlier depositions. But interestingly, his earlier cross examination would support the plaintiff's theory of partition.
23 SA.242-12 & ors.odt The lower Appellate Court committed error of jurisdiction in holding that the plaintiff failed to prove that suit land is joint family property. I find that defendant No.3 is unable to prove that the suit land is self acquired property. I am of considered view that a specific issue casting burden on defendant No.3 was not framed but parties have led evidence and understood each others case. No prejudice is caused to the plaintiff. The subsequent question of law No.(vii) is answered against defendants.
33. Defendant No.3 never challenged partition deed Exhibit
163. If he was the exclusive owner of the suit land, he would not have permitted the plaintiff to conduct business in it and to incur loan mortgaging it. Though he supported the defendant No.4 initially, his subsequent cross examination conducted on 16.09.2000, attempt to settle the matter before the Trial Court by submitting pursis at Exhibit 47 would indicate that suit land was joint family property and it was subjected to partition.
34. The plaintiff has led oral and documentary evidence to show that the suit land was allotted to him in partition and 24 SA.242-12 & ors.odt that was exclusively in his possession. The partition deed Exhibit 163 can be used only to the extent that there was severance of the status and possession of the parties over the assets. The clinching material has been placed on record by the plaintiff in this regard, which is as follows :
(i) Consent deed dated 04.06.1991 at Exhibit 154 executed by the defendant No.3.
(ii) Order dated 05.03.1992 passed by the Tahsildar for mutating suit land in the name of the plaintiff.
(iii) Mutation entry No. 485, Exhibit 143.
(iv) Loan application Exhibit 184 disclosing suit land and other immovable properties offered for security.
(v) Primary inspection report before disbursing loan, inspecting land Gut No.499.
(vi) Disbursement of loan for poultry business evidenced by disbursement receipts Exhibit 189 and 190.
25 SA.242-12 & ors.odt
(vii) Certificate of Assistant Director Exhibit 145.
(viii) Lease deed dated 18.03.1994 executed by the plaintiff.
(ix) Mortgage deed dated 18.03.1994 disclosing suit land.
(x) Public notice and the declaration for selling of the suit land.
(xi) Auction of the suit land scheduled on 22.01.2004.
(xii) Application by the plaintiff to stay auction Exhibit 148 and order thereon.
(xiii) Receipt of Rs.1,00,000/- deposited by the plaintiff to redeem the suit land i. e. Exhibit
149.
35. Above documents unequivocally indicate that suit land was allotted to the plaintiff. It was in his exclusive possession. He was running business of Bhavani Poultry. He redeemed the suit land by paying Rs.1,00,000/-. The above material has not been challenged by the defendants. The lower Appellate Court 26 SA.242-12 & ors.odt discarded the material without any valid reason, which amounts to perversity.
36. The Lower Appellate Court observed that plaintiff was unable to prove his title, which cannot stand to the reasons. The defendant No.3 never objected the plaintiff while mortgaging the suit land. The Gram Panchayat assessment list at Exhibit Nos.141 and 143 corroborate theory of partition and allotment of house properties to the plaintiff as well as defendant No.3. The certificate issued by the village development officer also corroborates the partition. The findings recorded by the lower Appellate Court are totally unsustainable. The plaintiff has adequately proved that partition effected on 10.09.1984 has been acted upon not only by the plaintiff, but the defendant No.3 also. He was beneficiary of the partition. The substantial question of law No.
(v) needs to be answered in favour of the plaintiff.
37. To answer the substantial questions of law No.(vi) it is necessary to take into account the development occurred during the course of trial. The defendant Nos. 2 to 4 had filed 27 SA.242-12 & ors.odt joint written statement contesting the plaint. The plaintiff, defendant Nos.2 and 3 submitted pursis. Before the Tahsildar application Exhibit 153 was submitted admitting the partition and allotment of suit land to the plaintiff. The defendant No.3 supported plaintiff's claim in the latter part of his cross examination. Defendant No.4 was permitted to cross examine him. By the time the proceedings were concluded in the Trial Court, defendant Nos.2 and 3 were supporting the plaintiff. The suit was decreed. In this backdrop the defendant No.4 was the only aggrieved person who could challenge the decree of Trial Court.
38. The defendant No.4 claimed to be bonafide purchaser vide sale deed at Exhibit 226. He had paid consideration hence he was bound to protect his alleged title and possession. The interest of the defendant Nos.2 to 4 was different. The defendant No.3 had changed his stand. Hence appeal preferred by defendant No.4 cannot be faulted.
39. Learned senior counsel Mr. Hon has relied upon judgment of Chaya and others Vs. Bapusaheb and others 28 SA.242-12 & ors.odt reported in (1994) 2 SCC 41. I have gone through paragraph Nos.14 to 16 of the judgment which narrates power of the Appellate Court. The ratio laid down in above judgment supports the respondents that Appellate Court is justified in entertaining appeal. The substantial question of law in this regard is answered in favour of the defendant No.4.
40. It has been brought to the notice of this Court that lower Appellate Court did not take into consideration following vital aspects of the matter :
(a) Pursis dated 24.08.2000, Exhibit 47.
(b) Application Exhibit 153 dated 11.10.2000.
(c) Application Exhibit 158 and order dated
13.03.2006.
41. The lower Appellate Court was obliged to deal with all aspects of the matter while reversing the judgment. The above documents and the probative value is totally over looked. There is no discussion for the material on record. The jurisdiction exercised by the lower Appellate Court is against the law laid down by the Supreme Court in the matter of 29 SA.242-12 & ors.odt Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179. The plaintiff is right in relying upon the judgment of the Apex Court in the case of Malluru Mallappa (D) through Legal Representatives Vs. Kuruvathappa and others reported in (2020) 4 SCC 313. The judgment and decree passed by the lower Appellate Court is unsustainable.
42. The defendant No.3 had no title to alienate the suit land vide sale deed dated 25.02.2000. The suit land was allotted to the plaintiff vide partition deed dated 10.09.1984. Hence alienation in favour of the defendant No. 4 is void. It was not necessary for the plaintiff to claim any specific relief against the sale deed Exhibit 227. No proper inquiry was conducted by defendant No.4 before purchasing the suit land. The 7/12 extract was showing plaintiff's name. The suit cannot be said to be defective for want of specific prayer in respect of sale deed Exhibit 227. The suit land was allotted to the plaintiff and he did not sign Exhibit 227. Reliance is placed on the judgment of Supreme Court in the matter of Thulasidhara Vs. Narayanappa reported in AIR Online 2019 SC 262. I have gone through para No.9.2 of the judgment. The judgment 30 SA.242-12 & ors.odt supports the plaintiff's claim.
43. The 7/12 extract shows name of the heirs of the deceased plaintiff. The plaintiff and his heirs appear to be in possession of the suit land and that is the reason why no relief of possession is solicited.
44. The analysis of above reasoning is that plaintiff would succeed in the matter. The judgment and decree passed by the lower Appellate Court is liable to be quashed. Accordingly, I have answered the substantial question of law. I, therefore, pass following order.
ORDER
(i) Second appeals are allowed.
(ii) The impugned judgment and decree dated
03.03.2012 passed in R.C.A. No.14 of 2011 by the District Judge - 1, Bhokar is quashed and set aside.
(iii) The judgment and decree dated 19.03.2011 passed by the Civil Judge Senior Division, Bhokar 31 SA.242-12 & ors.odt in R.C.S. No.46 of 2010 (Old R.C.S. No. 199 of 2000) shall stand restored and hereby confirmed.
(iv) Needless to mention that counter claim shall stand dismissed.
(v) Decree be drawn up accordingly.
(vi) There shall be no order as to costs.
(vii) In view of disposal of second appeals, pending civil application does not survive. Civil application as such is disposed of.
(SHAILESH P. BRAHME, J.) ...
45. After pronouncement of judgment, the learned counsel for the respondents prays for continuation of the status quo, which is operating in the appeals till today.
46. The request is opposed by the learned counsel for the appellants.
32 SA.242-12 & ors.odt
47. As the order of status quo is operating till today, I deem it appropriate to continue it for further eight (8) weeks. After the period, the same shall stand vacated automatically.
(SHAILESH P. BRAHME, J.) ...
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