Bombay High Court
Wamanrao Vyankatrao Kawane vs Atmaram Vyankatrao Kawane And 2 ... on 19 August, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 483 OF 2002
Wamanrao Vyankatrao Kawane,
aged about 53 years, Occ., Group Secretary,
R/o. Nandgaon Peth, Tah. & Distt. Amravati APPELLANT
...VERSUS...
1] Vyankatrao Karkaji Kawane,
aged about 80 years, Occ. Cultivator
(dead) through Legal Representative
1(i) Wamanrao Vyankatrao Kawane
(deleted)
1(ii) Venutai Manikrao Lapse,
aged about 60 years, R/o. Ganoja (Devi),
Tq. Bhatkuli, Distt. Amravati.
1(iii) Sou. Indubai w/o. Shankar Kale,
aged about 55 yeas, R/o. SRP
Quarter, Near Water Tank, Amravati
2. Atmaram Vyankatrao Kawane,
aged 53 years, Occ. Cultivator,
Both R/o. Nandgaonpeth,
Tah. And Distt. Amravati.
3. Narayanrao Vyankatrao Kawane,
aged 45 years, R/o. Ganorkar Wada,
Near Gupta Chawl, Rajapeth, Nagpur...... RESPONDENTS
AND
::: Uploaded on - 22/08/2016 ::: Downloaded on - 23/08/2016 00:17:06 :::
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SECOND APPEAL NO. 491 OF 2002
Narayan Vyankatrao Kawane,
aged about 50 years, Occ., Cultivator,
R/o. Nandgaon Peth, Tah. & Distt. Amravati APPELLANT
...VERSUS...
1] Vyankatrao Karkaji Kawane,
aged about 80 years, Occ. Cultivator
(dead) through LRs
(i) Atmaram Vyankatrao Kawane,
aged about 68 years, R/o. Nandgaonpeth,
Tah and Distt. Amravati.
(ii) Narayanrao Vyankatrao Kawane,
aged 50 years, R/o. Gauorkar
Wada, Near Gupta Chawl,
Rajapeth, Nagpur.
(iii) Wamanrao Vyankatrao Kawane,
aged 53 years, R/o. Nandgaon Peth,
Tah. And Distt. Amravati.
(iv) Venutai Manikrao Lalse,
aged about 60 years, R/o. Ganoja Devi,
Tq. Bhatkuli, Distt. Amravati.
(v) Sou. Indubai w/o. Shankarrao Kale,
aged about 55 years, R/o. SRP
Quarter, Near Water Tank, Amravati ...... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri P.R.Agrawal, counsel h/f Shri A.M.Deshpande, counsel for
appellants in both appeals.
None for respondents.
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th
DATE : 19 AUGUST 2016 .
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ORAL JUDGMENT
1] Regular Civil Suit No. 553 of 1995 was filed by
Narayan Vyankat Kawane against his father Vyankatrao for
possession based on title on the basis of partition effected on
11.04.1976. The suit was dismissed on 20.02.2001. Regular
Civil Appeal No. 72 of 2001 filed by Narayan was also
dismissed on 31.07.2002. Hence, the Second Appeal
No.491 of 2002 by Narayan, the original plaintiff.
2] Regular Civil Suit No.9 of 1996 was filed by
Wamanrao against his father Vyankatrao and two brothers -
Atmaram and Narayan, for declaration of title and it was
dismissed on 06.03.1998. Regular Civil Appeal No.82 of
1999 preferred by Wamanrao was dismissed by the lower
appellate Court by its common judgment and order dated
31.07.2002. Hence the Second Appeal No. 483 of 2002 is
preferred by Wamanrao - the original plaintiff.
3] The dispute in both these matters is between the
father - Vyankatrao and the sons Wamanrao, Atmaram and
Narayan. The Courts below have held that the partition deed
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dated 11.04.1976 was an unregistered document and hence
inadmissible in evidence. Though the trial Court recorded the
finding that the property was the self acquired property of
Vyankatrao, the father, the lower appellate Court has
reversed the said finding and it is held that the property is the
joint family property. The father Vyankatrao has not
challenged such a finding recorded by the lower appellate
Court in the common judgment delivered in both the appeals.
In view of this, the finding recorded by the lower appellate
Court that the property is the joint family ancestral property of
the plaintiffs and the defendants in both the suits becomes
final.
4] Both the appeals were admitted on 19.10.2007,
framing the common substantial question of law as under;
"Whether it is necessary for the members of
the joint family to effect partition by a solitary
document and whether the joint family
properties could be partitioned by two
separate documents executed on the same
day at the same time?
5] The Courts below have held that the plaintiffs in
both the suits have failed to establish their independent title
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to the suit property. It is not necessary to consider the
aforesaid substantial question of law framed by this Court
and since Vyankatrao, the father, has not challenged the
findings recorded by the lower appellate Court that the suit
properties are ancestral properties of the plaintiffs and the
defendants in both the suits, it can be left open for the
parties to file a suit for partition and separate possession.
6] In the result, both the second appeals are
dismissed. The findings recorded by the lower appellate
Court that the suit property was the joint family property
remains intact along with the finding that the plaintiffs in both
the suits have failed to establish their independent title over
the suit property shall remain intact. The parties shall be at
liberty to file separate suit for partition and separate
possession and none of the observations made by the Courts
below shall come in the way of the parties, except the
findings which are confirmed by this Court.
JUDGE
Rvjalit
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C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 22 August, 2016
