Madhusudan Vishwanath Mule vs Gajanan Vishwanath Mule And 2 ...
2017 Latest Caselaw 8270 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

                   SECOND APPEAL NO.244 OF 2003

Madhusudan Vishwanath Mule,
Aged about 58 years, Occupation
Pensioner, resident of Nandura,
Ward No.2, District Buldhana.                    ..... Appellant.

                                ::   VERSUS   ::

1.  Gajanan Vishwanath Mule,
Aged about 65 years,
Occupation Agriculturist,
(Dead) through legal heirs-

   i) Mukund s/o Gajanan Mule,
   Aged about 46 years, R/o
   Sapttashringi Society, Plot 
   No.8, Near Gurudwara Near
   Akrudi Railway Station,
   Pune.

   ii) Sachin s/o Gajanan Mule,
   Aged about 27 years.

   iii) Kamal wd/o Gajanan Mule,
   Aged about 63 years,
   Nos.(ii) and (iii) residents of 
   Rohinkhed, Taluka Motala,
   District Buldana.


                                                                         .....2/-


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                      iv) Sou. Sangita Vijayrao Joshi,
                      Aged about 44 years, R/o
                      Plot No.86, Shram Saffal
                      Colony, Dhule, District 
                      Dhule, Phone No.271441.

                      v) Sou. Surekha Mohanrao Bhalerao
                      R/o Bhadole, Taluka and District 
                      Buldana.

                      vi) Sou. Anita Chandrashekhar
                      Chendulkar, R/o Station
                      Road, Lasalgaon, District 
                      Nasik.

                      vii) Sou. Sunanda Kiran Choudhari,
                      R/o Near Kamgar Kalyan
                      Kendra, Shivaji Nagar,
                      Jalgaon, District Jalgaon.

                   2. Vinayak Vishwanath Mule,
Deleted as per 
    Court's
                   Aged ab out 63 years,
order dt. 9.8.07
                   Occupation - Agriculturist,
                   both residents of Rohinkhed,
                   Taluka Motala, District Buldana.

                   3) Moreshwar Vishwanath Mule,
                   Aged about 55 years,
                   Occupation Nil, resident of 
                   Ward No.2, Nandura, Taluka
                   Nandura, District Buldhana.                     ..... Respondents.


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================================================================
           Shri Abhijit L. Deshpande, Counsel for the appellant.
           None for the respondents.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : OCTOBER 31, 2017.

ORAL JUDGMENT

1. The present appeal is filed against judgment and

decree passed by learned Civil Judge Junior Division at

Malkapur dated 23.4.1998 in Regular Civil Suit No.44 of 1995

which was confirmed by learned Ad hoc Additional District

Judge at Buldana on 13.3.2003 in Regular Civil Appeal No.67

of 1998.

2. By these two judgments and decrees, both the

Courts below dismissed the suit for partition, possession,

declaration, and mesne profit filed by the present appellant.

3. According to the plaint, the plaintiff and

defendant Nos.1 to 4 are real and stepbrothers and sisters.

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The plaintiff being in service as a Talathi in Revenue

Department was not residing in ancestral village Rohinkhed

during his service period. He took voluntary retirement and,

thereafter, started demanding his share in the property. The

suit was restricted for the following properties:

(i) two storeyed house at village Rohinkhed,

Taluka Motala, District Buldana;

(ii) an open land admeasuring 20'x20' feet

adjacent to the house.

According to the plaint, these properties were

ancestral properties and remained to be partitioned. In the

plaint itself, it is averred that ancestral agricultural property

at village Rohinkhed was partitioned and accordingly

necessary mutation was done in the revenue record. It is

stated in the plaint that in respect of the suit property

respondent No.1/defendant No.1 Gajanan got mutated his

.....5/-

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name in the revenue record. It is the further averment in the

plaint that since the suit property was not partitioned, he is

entitled to 1/5th share in the same.

4. Defendant Nos.1 and 2 filed their written

statement contesting the claim of the plaintiff. Defendant

No.3, who used to reside with the plaintiff, also filed his

written statement and admitted the plaintiff's claim.

Defendant No.4, the sister, was proceeded ex parte.

5. As per the written statement, there was oral

partition in the presence of the panchas and in the said oral

partition one acre more in agricultural field was given to the

plaintiff and in lieu of that he gave up his right in the suit

properties. It is also stated that at the time of oral partition

various movables were taken from the suit property by the

plaintiff.

6. The plaintiff entered into the witness box. On

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behalf of the defendants, defendant No.1 examined his son

Sachin and also examined one Kashiram, Rama, and one

Sitaram.

7. Learned Judge of the Trial Court, after

appreciating the evidences and pleadings, dismissed the suit.

An appeal carried against the said is also dismissed. Hence,

this second appeal.

8. The present second appeal was admitted on

28.9.2005 on the following substantial question of law:

"Whether finding recorded by the lower appellate Court that plaintiff had admitted in his evidence that at the time of partition and one acre of agricultural land was given to him in excess and, therefore, he waived his right in the suit premises is based on evidence/admission or is perverse?"

9. I have heard learned counsel Shri Abhijit L.

Deshpande for the appellant. Learned counsel for the

respondents chose not to remain present at the time of

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hearing. According to learned counsel for the appellant both

the Courts below ought to have drawn adverse inference

against defendant No.1 for not entering into the witness box.

He also submitted that the evidence of Sachin, son of

defendant No.1, cannot be looked into since mathematically at

the time of partition the age of said defence witness cannot be

more than 5 to 6 years. To keep aside the evidence of Sachin,

learned counsel for the appellant relied upon a

pronouncement of the Honourable Apex Court in the case of

Janki Vashdeo Bhojwani and anr ..vs.. Indusind Bank Ltd. and

ors, reported at AIR 2005 SC 439. It is also the submission of

learned counsel for the appellant that the evidences of

Kashiram and other witnesses examined on behalf of the

defendants sans detail and are not clear and, therefore, both

the Courts below ought to have granted decree as claimed by

the plaintiff.

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10. The appellant/plaintiff, respondent No.1/defendant

No.1, and defendant No.4 are real brothers and sister.

Whereas, defendant Nos.2 and 3 are stepbrothers of

appellant/plaintiff and respondent No.1/defendant No.1. It is

not in dispute that defendant No.3 used to reside with the

plaintiff. Whereas, defendant No.2 used to stay with

defendant No.1.

11. From the avements made in the plaint and also

from the evidence of the plaintiff, it is clear that there took

oral partition in respect of agricultural land in the year 1984.

Thus, according to the plaintiff, there was partition for

agricultural land only. In the cross-examination, the plaintiff

has specifically admitted that the noting of said oral partition

was taken and the copy of the said was given to the patwari.

He also admitted the following:

"okV.;k>kY;k R;kosGh eyk ,d ,dj tehu tkLrhph ns.;kr

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vkyh gksrh- okV.kh >kY;koj xtkuuus tkxkaph uksan d#u ? ksryh- R;kckcr eh vktikosrks xzkeiapk;r dMs gjdr ?ksryh ukgh-"

12. From the aforesaid admission, it is clear that the

plaintiff himself has admitted the defence of defendant Nos.1

and 2 broadly to the extent that in the partition one acre

additional agricultural land was given to the plaintiff. No

reason is coming on record as to what was the reason or cause

of allotting one acre more of agricultural land in addition to

the share for which the plaintiff was entitled to.

13. The plaintiff himself has stated in the plaint as

under:

"oknh vkrk lsokfuo`Rr >kY;keqGs o R;k jksghu[ksM ;sFkhy R;kps fgLL;kaoj vkysyh 'ksrtehu fodwu VkdY;keqGs jksghu[ksM xkok'kh R;kpk dkghgh laca/k ;s.kkj ukgh-"

14. In my view, the appellant was working as a Talathi

and who spent his entire life outside village Rohinkhed was

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never to be returned to the said place. Therefore, it appears

that one acre more agricultural land was given to him and in

lieu of the said he gave up his right in the suit property. The

evidences of DW2 Kashiram and DW4 Sitaram clearly show

that these independent persons were present at the time of

partition. Further, their evidence show that in the said

partition one acre extra agricultural land was given to the

appellant/plaitniff and in lieu of that he gave up his right in

the suit properties. Their evidences withstood to the cross-

examination and there is nothing to disbelieve their version.

DW3 is one Rama, a tractor driver whose evidence shows that

in the year 1994 the appellant/plaintiff called him along with

his tractor for transporting certain movables from village

Rohinkhed to Nandura where ultimately the

appellant/plaintiff is residing permanently.

15. The Court cannot forget the fact that the appellant

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was working as a Talathi in the Revenue Department. Thus,

he knows the procedure for taking entries in the revenue

record. He has admitted in his cross-examination that the

noting was given to the Patwari of village Rohinkhed and

defendant No.1 mutated his name after partition. It is rather

surprising that the till the plaintiff entered into the witness

box, he never objected the mutation entry.

16. Though there is some force in the submission of

learned counsel for the appellant about the evidence of

Sachin, in view of the admission given by the appellant in the

plaint as well as in his evidence and clinching evidence of

defence witnesses Kashiram, Rama, and Sitaram, in my view

it is proved on record that the plaintiff got extra one acre of

land and in lieu of that he gave up his share in the suit

properties.

17. Non-examination of defendant No.1 by himself is

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hardly material especially when in his written statement it is

his case that partition was effected in the presence of the

panchas and those pancha witnesses were examined by the

defendants. Further, it was never the case of the plaintiff that

partition was not effected in the presence of pancha

witnesses.

18. In that view of the matter, the evidences of

independent witnesses cannot be brushed aside lightly.

19. Aforesaid discussion on the basis of available

pleading and evidences on record show that the present

appeal does not involve any substantial question of law and

hence the appeal is dismissed. However, there shall be no

order as to costs.

JUDGE

!! BRW !!

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