Bhagwan Wamanrao Vanway vs Ramchandra Bhagwan Vanway & Ors
2016 Latest Caselaw 5007 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                   
                        CRIMINAL WRIT PETITION NO. 477 OF 2005




                                                  
     Bhagwan s/o Wamanrao Vanway,
     Age 78 years, Occ. Nil,
     R/o. Savargaon (Sone),
     Tq. Patoda, District Beed                              ...Petitioner




                                          
              versus         
     1.       Ramchandra s/o Bhagwan Vanway,
              Age 42 years, Occ. Agricultural
                            
     2.       Shamrao s/o Bhagwan Vanway
              Age 38 years, Occ. Agricultural

     3.       Manik s/o Bhagwan Vanway,
              Age 32 years, Occ. Agricultural
      


     4.       Kashinath s/o Bhagwan Vanway
   



              Age 31 years, Occ. Agricultural

              All R/o. Savargaon (Sone),
              Tq. Patoda, District Beed





     5.       Bhimrao s/o Bhagwan Vanway,
              Age 37 years, Occ. Agricultural
              R/o. Bhatodi, Tq. Ashti
              District Beed                                ...Respondents
                                                .....





     Mr. A.S. Kulkarni h/f Mr. A.N.Nagargoje, advocate for petitioner
     Smt. Asha D. Rakh, advocate for respondent No.5
                                         .....

                                                 CORAM : V. K. JADHAV, J.

DATED : 26th AUGUST, 2016

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and order passed by the

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learned J.M.F.C. Patoda, district Beed dated 16.8.2002 in Misc.

Criminal Application No. 30 of 1999 and also by the judgment and

order passed by 4th Adhoc Additional Sessions Judge, Beed in

Criminal Revision application No. 87 of 2002, original applicant has

preferred this writ petition.

2. Brief facts giving rise to the present writ petition are as

follows:-

a) The petitioner is the original applicant in Misc. Criminal

application No. 30 of 1999 filed before the learned J.M.F.C. Patoda

under Section 125 of Cr.P.C. In the said application, the petitioner

had claimed maintenance of Rs.300/- p.m. each from respondent

Nos. 1 to 5, who are his sons. The petitioner is 78 years old person.

He was also suffering ailments and due to old age, he required to

take regular medical treatment. It has also stated in the application

that his second wife Dwarkabai initiated one proceeding for grant of

maintenance against him. As per the order passed by the court in the

said proceeding, the petitioner has to pay an amount of Rs.125/- to

her as maintenance. It has also stated in the application that he has

no independent source of income and he is unable to maintain

himself. It has also contended that his all ancestral property has

been partitioned between his sons way back in the year 1985 and

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since then the respondents are cultivating the said land personally

and getting annual income of Rs.25,000/- each. The respondent

Nos. 1 to 5 though having sufficient means, refused and neglected to

maintain him.

b) Respondent Nos. 1 to 4 have not filed their say, however,

respondent No.5 strongly resisted the application by filing his say.

According to him, he is son of second wife of the petitioner and his

mother has filed an application for maintenance against the petitioner

in the Court at Ashti. It has also contended that there is joint family

of applicant as well as respondent Nos. 1 to 4 and they have

nominally shown partition on paper without any actual partition of the

landed property. However, respondent No.5 is not given share in the

property and he is not put in possession of landed property. It has

further contended that opponent Nos.1 to 4 and applicant are taking

income from the said land. He had also instituted a suit for partition

and possession and also for share in compensation amount for the

acquired land by the Government. Even though five acres land is

shown to have been allotted to his name, respondent Nos. 1 to 4 and

step mother disposed of the said land to one Ramkishan Fakira and

no share in the consideration amount was given to him. The

applicant and opponent Nos.2 to 4 are residing jointly and enjoying

income from irrigated land which is in their possession. Thus, the

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applicant is not entitled to claim maintenance from respondent No.5

herein.

c) On the basis of evidence on record and after hearing the

parties through their counsel, learned J.M.F.C. Patoda by his order

dated 16.8.2002 in Misc. Criminal Application No. 30 of 1999 rejected

the application. Being aggrieved by the same, the petitioner had

preferred Criminal Revision application No. 87 of 2002 wherein the

learned 4th Adhoc Additional Sessions Judge, Beed by order dated

19.7.2004 partly allowed the criminal revision application and thereby

directed respondent Nos.1 to 4 to pay the petitioner an amount of

Rs.150/- p.m. from the date of application alongwith costs of

Rs.300/-. However, the judgment and order passed by the learned

Magistrate is confirmed to the extent of order passed against

respondent No.5. Being aggrieved by the same, the petitioner has

filed present writ petition.

3. Learned counsel for the petitioner submits that the

respondent No.5 has got share in the ancestral land and accordingly

the mutation entry came to be sanctioned way back in the year 1990.

Even in 7x12 extract name of respondent No.5 appears in the

ownership column as well as in cultivation column. Respondent No.5

is able bodied person and is bound to maintain his old and ailing

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father. All respondents are having sufficient means to pay

maintenance to the petitioner as claimed in the application.

4. Learned counsel for respondent No.5 submits that

respondent No.5 has no source of income and he is doing labour

work for his livelihood. Mother of respondent No.5 has filed

maintenance application against the present petitioner and

accordingly maintenance allowance is granted to his mother at the

rate of Rs.125/- p.m. Furthermore, respondent No.5 has also

instituted civil suit for partition and also for getting share in the

compensation amount against the present petitioner and respondent

Nos. 1 to 4 herein. The petitioner alongwith respondent Nos.1 to 4 is

enjoying landed property and even though no partition has been

effected by metes and bounds, the partition is shown to have been

effected on the paper only. The petitioner is able to maintain himself

and there is no question to pay any maintenance to him by

respondent No.5.

5. It appears from the documents produced alongwith the

application that respondent No.5 has been allotted specific portion of

the land in the family partition and accordingly mutation entry No. 290

came to be sanctioned in the year 1990. It has specifically

mentioned in the said mutation that the present petitioner Bhagwan

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has partitioned his ancestral land amongst five sons including

respondent No.5 and also retained some portion of the land for his

maintenance. However, the petitioner at the time of filing of said

application was more than 70 years old and I do not think that it is

possible for him to cultivate agricultural land allotted to his share

personally. The learned Adhoc Additional Sessions Judge by its

impugned order dated 19.7.2004 has directed respondent Nos. 1 to 4

to pay maintenance amount at the rate of Rs.150/- p.m. to the

petitioner-original applicant, however, confirmed the order passed by

the Magistrate so far as the rejection of application against

respondent No.5 herein. It appears from the evidence of respondent

No.5 that he is able bodied person and alongwith his other brothers,

he is liable to maintain his old aged ailing father. I do not find any

justifiable reason for rejecting the application against respondent

No.5. Learned Adhoc Additional Sessions Judge has considered the

evidence on record and directed the respondents/sons to pay the

maintenance to petitioner-father of Rs.150/- p.m. each The impugned

order passed by the 4th Adhoc Additional Sessions Judge, Beed in

said criminal revision is liable to be quashed and set aside to that

extent and application filed by the petitioner is allowed in terms of

order passed against the respondent Nos. 1 to 4 herein in the said

revision application. Hence, I proceed to pass the following order:-

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ORDER

I. Criminal writ petition is hereby partly allowed.

II. The Judgment and order passed by the 4 th Adhoc Additional

Sessions Judge, Beed dated 19.7.2004 in Criminal Revision

Application No. 87 of 2002 is hereby quashed and set aside to

the extent of clause "c" of para 3 of operative part of the order,

whereby confirming the order passed by the Magistrate against

present respondent No.5.

III. The original application is partly allowed with costs in the same

terms as is passed against respondent Nos. 1 to 4 and

respondent No.5 shall also pay the petitioner an amount of

Rs.150/- p.m. from the date of filing of this writ petition

alongwith costs of Rs.500/-.

IV. Writ petition is accordingly disposed of. Rule made absolute in

the above terms.

( V. K. JADHAV, J.)

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