Bombay High Court
Navnath Baburao Dighe vs Dattu Dada Dighe Died Th Lrs Ganpat ... on 29 November, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.560 OF 2011
Navnath s/o Baburao Dighe APPELLANT
Age - 38 years, Occ - Agriculture
R/o Jorve, Taluka - Sangamner,
District - Ahmednagar
VERSUS
1. Dattu s/o Dada Dighe RESPONDENTS
(Deceased Through LRs
i.e. respondent No.2)
2.
Ganpat Dattu Dighe
Age - 50 years, Occ - Agriculture
3. Anjanabai w/o Baburao Dighe
Age - 76 years, Occ - Agriculture
4. Meerabai w/o Baburao Dighe
Age - 56 years, Occ - Agriculture
All r/o Jorve, Taluka - Sangamner
District - Ahmednagar
5. Vanita w/o Ramesh Mate
Age - 43 years, Occ - Household
R/o Nighog, Taluka - Kopergaon,
District - Ahmednagar
6. Chairman, Vividh Karyakari Sahakari
Society Maryadit, Jorve,
Taluka - Sangamner
District - Ahmednagar
7. Rehabilitation Officer,
Ahmednagar
8. Ramnath s/o Baburao Dighe
Age - 35 years, Occ - Agriculture
R/o Jorve, Taluka - Sangamner
District - Ahmednagar
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.......
Mr. A. N. Nagargoje, Advocate for the appellant
Mr. A. S. Bajaj, Advocate for respondent No.2
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 29th NOVEMBER, 2016
ORAL JUDGMENT :
1. Heard learned advocates for the appearing parties.
2. It is the case of appellant and respondent No.8 - plaintiffs
in Special Civil Suit No.49 of 1995 that properties left behind by
one Bhagwant had not undergone any partition and as such, had
instituted the suit for injunction, declaration and separate
possession in respect of the properties left behind by said
Bhagwant.
3. It appears that about four pieces of lands were left behind
by deceased Bhagwant to his two sons - Dada and Baburao.
Dada, being elder of the two, lands were initially being shown in
his name and subsequently in the name of his elder son.
4. Baburao, it appears, had married three persons. His first
wife was Anjanabai, second Ratanbai and the third was
Meerabai. Appellant and respondent No.8 are progeny of
relationship between Baburao and Meerabai. It appears that a
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daughter had been begotten to Baburao from Ratanbai.
5. According to the plaintiffs i.e. appellant and respondent
No.8, upon attaining majority, they have instituted proceedings,
since unpartitioned lands were being dealt with by the
defendants giving rise to cause of action for them.
6. In defence, the respondents - defendants had brought
certain events to the fore, namely, proceedings between
Anjanabai and Dattu for declaration of ownership and possession
with reference to an earlier partition. The suit, it appears, had
been amicably settled in terms of compromise. Pursuant thereto,
revenue record had also been mutated, further taking into
account partition between Anjanabai and Meerabai in respect of
lands of share of Baburao in ancestral properties.
7. Mr. Nagargoje, learned advocate contends that although it
is being considered that partition had taken place, shares in
accordance with law have not come the way of the plaintiffs.
According to him, the plaintiffs being coparceners, they were
entitled to equal share as that of Baburao in the ancestral
property, being male progeny in the hierarchy. He submits that
in contrast, half of the ancestral property has gone in favour of
Anjanabai, which is not compatible with relevant inheritance and
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succession laws. Learned advocate, therefore, submits that both
the courts have failed to take into account gamut involved in the
matter and have erroneously dismissed the claim regarding
separate possession and declaration.
8. Countering aforesaid submissions, Mr. Bajaj, learned
advocate appearing for defendant No.2 points out that marriage
between deceased Baburao and Meerabai cannot be termed as
validly recognized ig marriage in law and progeny of said
relationship is not legitimate. As such, even applying un-codified
Shastric or codified law, shares, which have been allotted to the
parties to the suit, cannot be faulted with. He submits that the
property coming to the branch of Baburao would be required to
be divided between him and his wife by applying theory of
notional partition, and Anjanabai legitimately would succeed to
the half of the share. It is Baburao's half share which would once
again undergo division in equal shares among other
descendants. But in the present case, as a matter of fact, a
larger chunk of land has gone to the share of plaintiffs and
Meerabai. In the circumstances, on all probabilities further
prosecution may prove detrimental to the interest of the plaintiff
and Meerabai.
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9. After hearing learned advocates and upon perusal of the
judgments it appears around 1994, Anjanabai had executed a
sale deed in respect of land bearing gut No.449/2 in favour of
defendant No.2 - respondent No.2 - Ganpat Dattu, who happens
to be nephew of Anjanabai. Proceeds thereof are stated to have
been appropriated by Anjanabai and daughter of Baburao from
Ratanbai. It also occurs that Meerabai had been placed in
possession of land bearing gut No.505/2. According to learned
advocate Mr. Bajaj, area of land gut No.505/2 has been larger
than area of land gut No.449/2. It further appears that Meerabai
had been enjoying the property in her possession and had been
reaping benefits and produce therefrom was being recorded in
the name of Meerabai.
10. Both the courts have taken stock of the situation and had
framed relevant issues, scanned evidence on record and had
partially decreed the suit to the extent of injunction and
dismissed the same for declaration and separate possession. The
appellate court also framed similar points as were the issues and
had re-scanned the evidence and concurred with the findings
given by the trial court.
11. Both the courts have taken into account facts and
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circumstances and prevailing legal position and have found that
more than sufficient documentary and oral evidence has been
adduced on behalf of the defendants in support of their case.
Appreciation does not appear to be not in consonance with the
evidence. It is not the case wherein it can be said that the
decisions rendered tend to be perverse. As such, it does not
appear that the second appeal gives rise to any substantial
question of law, as sought to be pressed into service on behalf of
the appellant.
12. Second appeal, as such, stands dismissed.
13. In view of dismissal of the second appeal, civil application
No.13218 of 2011 does not survive and accordingly stands
dispose of.
[SUNIL P. DESHMUKH, J.]
drp/sa560-11
