Bombay High Court
Rajendra Babruvahan Mali ... vs Anantha Babruvahan Mali Mohalkar on 22 March, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.130 OF 2016
Rajendra Babruvahan Mali Mohalkar APPELLANT
Age - 47 years, Occ - Agriculture
R/o Para, Taluka - Vashi,
District - Osmanabad
VERSUS
Anantha s/o Babruvahan Mali Mohalkar RESPONDENT
Age - 40 years, Occ - Agriculture
R/o Para, Taluka - Vashi
District - Osmanabad
.......
Mr. K. S. Solanke h/f Mr. S. J. salunke, Advocate for the appellant
Mr. S. G. Chapalgaonkar, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 22nd MARCH, 2017
ORAL JUDGMENT :
1. Heard learned advocates for the parties.
2. It is defendant's second appeal purporting to challenge
decree of declaration and perpetual injunction against him in
respect of twelve anna share in two hectare land in gut No.51
situated in village Simri Pargaon, Taluka - Majalgaon, passed by
Civil Judge, Junior Division, Majalgaon in Regular Civil Suit No.27
of 2003 and confirmed by Ad-hod District Judge-1, Majalgaon in
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Regular Civil Appeal No.52 of 2010.
3. After hearing learned advocates, it transpires that the
defendant stakes claim to two hectare land purchased by his
father in his name, with reference to a sale deed. It appears that
the plaintiff and the defendant are step brothers. After death of
their father, ancestral / joint family properties were divided
between the plaintiff and defendant. Defendant received four
anna share in gut No.51 whereas the plaintiff received twelve
anna share in the same. It is being referred to that, in said
partition executed on a stamp paper of `.10/- after death of
father, defendant has also received certain other properties. So
is the case of the plaintiff. It does not appear to be a case from
the pleadings either that the distribution between the plaintiff
and the defendant is claimed to be inequitable. The trial court
has recorded extensive evidence adduced on behalf of the
plaintiff about execution of document on stamp paper of `.10/-
about partition of ancestral / joint family properties. Defendant
though had declined execution of the document, it has clearly
emerged in the evidence that the document had been executed
and stood proved. Contention on behalf of the defendant was
that the suit property is his self acquired property, however, both
the courts have concurred on that the defendant could not
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establish said fact by any credible material. The appellate court
as well has discussed evidence threadbare on this contention. It
has been observed that defendant has not been able to prove
self acquisition of the property and the contention about that the
consideration had been paid by selling ornaments of mother has
not been supported by any evidence at all.
4. Having regard to that two courts hitherto have concurred
on appreciation of evidence, which does not appear to be not
adhering to the facts and the defendant having failed to establish
self acquisition of the property and the document of partition
having been proved, there is hardly any case, which can be said
to be made out raising substantial question of law.
5. Second appeal, as such, fails and is dismissed.
6. In view of aforesaid, Civil Application No.2014 of 2016 also
stands disposed of.
[SUNIL P. DESHMUKH, J.]
drp/sa130-16
