Bombay High Court
Bhagwant Parasram Dhat Thr. Gpa ... vs Dhondiram Karbhari Dhat on 29 November, 2016
Bench: S.P. Deshmukh
1 SA-75.11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
SECOND APPEAL NO. 75 OF 2011
Bhagwant Parasram Dhat ,
Aged 51 years, occup. Agriculture,
R/o Village Bhojada, Taluka Kopargaon,
District Ahmednagar, through
General Poqwer of Attorny Holder
Shri Vyankat Parasram Dhat, .. Appellant /Original
aged 43 years, occup. and resident Plaintiff/Appellant
as above
versus
Dhondiram Karbhari Dhat,
Aged 64 years, occup. Agriculture/
Pensioner, Resident of 402,
Ripna Apartment, Motibag, .. Respondent/
Pune 16. Orig. Defendant
-
Mr. Anil H. Kasliwal, Advocate for appellant
Mr. S. P. Chapalgaonkar, Advocate for respondent
CORAM : SUNIL P. DESHMUKH, J.
DATE : 29th November, 2016
ORAL JUDGMENT :
1. Heard learned counsel for the parties.
2. Learned counsel Mr. Kasliwal appearing on behalf of
appellant-plaintiff contends that the appellant has sufficiently
brought forth by evidence the factum of partition of 1979 and
consequently injunction ought to have been issued in his favour as
claimed in the suit. He purports to refer to a few transactions and
mutation entries bearing no. 706 and 520.
2 SA-75.11.doc
3. While reliance is being placed by Mr. Kasliwal on said
evidence, learned counsel Mr. Chapalgaonkar appearing on behalf
of the respondent pertinently draws attention to that the case of
1979 partition cannot be relied on as, in the first place, according to
him, the plaintiff himself avoided to enter the witness box and
secondly, the persons who ought to have been brought before the
court as witnesses have not given evidence.
4. He further refers to that both the courts have taken stock of
the situation and have properly come to the concurrent conclusion
that the plaintiff has not been able to prove partition of 1979 as
also his possession over the properties which are claimed to have
come to his share in said partition.
5. After hearing learned counsel, it appears that the trial court
as well as appellate court have extensively considered the case of
the plaintiffs claiming partition of 1979. The trial court in paragraph
no. 14 of its judgment has exhaustively considered the issue and
has come to a definitive conclusion of failure of plaintiff to establish
partition of 1979. So is the case by appellate court while giving
finding on point number 2 framed by it upon regular civil appeal by
plaintiff and the court has thoroughly considered the same and
concurred with the trial court's finding that it cannot be said to
have been proved by plaintiff that the suit properties had fallen to
his share in the claimed partition of 1979.
3 SA-75.11.doc
6. Perusal of both the judgments and particularly aforesaid
portions from the same does not show that the observations and
findings thereunder can in any way be said to be not in tune with
the record and would tend to be perverse.
7. The apprehension expressed by learned counsel for the
appellant-plaintiff of doors may be shut out on him may not be said
to be proper having regard to observations of the appellate court in
paragraph no. 35 of its judgment.
8.
In view of aforesaid, I do not see that this is a second appeal
giving rise to any substantial question of law.
9. The second appeal, as such, is not liable to be entertained
and stands dismissed.
SUNIL P. DESHMUKH,
JUDGE
pnd
