Bombay High Court
Raghunath S/O. Vitthalrao ... vs Pandurang S/O. Tukaram ... on 12 January, 2018
Bench: A.S. Chandurkar
915-J-SA-177-16 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.177 OF 2016
Raghunath s/o Vitthalrao Shravankar
Aged about 56 yrs. Occ. Agriculturist,
R/o Porkipura Hanuman Nagar Kampti
Tahsil Kaamtee, Dist. Nagpur. ... Appellant.
-vs-
1. Pandurang s/o Tukaram Shrawankar
(Original Defendant since deceased
represented through his legal heirs)
(1-A) Janki wd/o Pandurang Shrawankar
Deleted as per Court's order dtd.12/06/2017.
(1-B) Ramakant s/o Pandurang Shrawankar
Aged about 50 yrs. Occupation : Business
Both R/o Perkipura Hanuman Nagar Kampti
Tahsil Kaamtee, Dist. Nagpur
(1-C) Mankala w/o Babanrao Mahurkar,
Aged about 47 yrs. Occupation : Household
R/o In front of Laxmi Primary School,
Pardi Punapur, Near Hanuman Mandir
and School, Bhandara Road, Nagpur-08.
(1-D) Pramila w/o Ramdas Shrawankar
Aged about 30 yrs. Occupation - Household,
(1-E) Arun s/o Ramdas Shrawankar
Aged about 30 yrs. Occupation - Household,
(1-F) Prafull s/o Ramdas Shrawankar
Aged about 30 yrs. Occupation - Household,
(1-G) Amol s/o Ramdas Shrawankar
Aged about 30 yrs. Occupation - Household,
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915-J-SA-177-16 2/7
(1-H) Rahul s/o Ramdas Shrawankar
Aged about 30 yrs. Occupation - Household,
All r/o Perkipura Hanuman Nagar,
Kamptee Tah. Kamptee, Dist. Nagpur.
2. Village Panchayat Ranala
Thr. Its Sarpanch,
Tahsil Kamptee, Dist. Nagpur.
3. Diwakar s/o Vitthalrao Shrawankar
Aged about 21 yrs. Occupation - Business,
R/o Perkipura Hanuman Nagar,
Kamptee Tah. Kamptee, Dist. Nagpur.
4. Prashant s/o Nagorajoji Sable,
Aged about 35 yrs. Occupation - Business,
R/o Ranala Tah. Kamptee, Dist. Nagpur. ... Respondents.
Shri P. K. Mishra, Advocate for appellant.
Shri D. C. Chahande, Advocate for respondent Nos.1(B to H), 2 and 3.
Shri P. C. Khubalkar, Advocate for respondent No.4.
CORAM : A. S. CHANDURKAR, J.
DATE : January 12, 2018.
Oral Judgment :
Notice for final disposal was issued on the following substantial
question of law :
" Whether the Courts below were right in accepting the theory of
partition on the basis of document of partition dated 07/05/1972,
particularly when it was not the original one produced on record ?"
2. The appellant is the original plaintiff who had filed suit for
partition and separate possession. It is his case that one Tukaram had two
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sons viz. Vitthal and Pandurang. Tukaram was having ancestral property
and during his life time the same was not partitioned. The plaintiff is the son
of Vitthal who expired in the year 1992. As his uncle Pandurang started
construction on Survey No.29, the suit for partition and separate possession
of that property came to be filed.
3. In the written statement a stand was taken that on 07/05/1972
there was a partition between Vitthal and Pandurang and both the brothers
had been given their respective shares. Survey No.29 admeasuring about 3.5
acre was divided into two equal parts. The plaintiffs' father was given half
portion on the Eastern side while the defendant No.1 was given half portion
on the Western side. On these and other pleadings the suit was opposed.
4. The trial Court after considering the evidence on record held that
the properties belonging to the family had been partitioned earlier and the
family members were enjoying their respective shares. Some part of the
property was also sold to a housing society. On that count the suit came to
be dismissed. The first appellate Court after re-appreciating the evidence
dismissed the appeal.
5. Shri P. K. Mishra, learned counsel for the appellant submitted that
both the Courts committed an error in relying upon the deed of partition at
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Exhibit-188. Its original was not on record and without accounting for its
loss, secondary evidence was sought to be led. The document of partition
was required to be registered and as it was not so registered, it could not be
taken into consideration even for co-lateral purpose. He placed reliance on
the decisions in H. Siddiqui (dead) by LRs. vs. A. Ramalingam 2011(4)
Mh.L.J. 88 and Madanlal Virbhanji Madan and ors. vs. Ramrao
Mahadeorao Gomase 2015 (1) Mh.L.J. 620 in that regard. It was then
submitted that the alleged partition was only with regard to the house
property and not the suit land. The plea that only the house property was
partitioned had not been raised by the defendants. It was therefore
submitted that both the Courts committed an error in dismissing the suit.
6. Shri D. C. Chahande, learned counsel for the legal heirs of original
defendant No.1 supported the impugned judgment. According to him there
was sufficient evidence on record to indicate that after the partition in the
year 1972, the same had been acted upon and the parties had enjoyed their
respective shares. The partition was infact even admitted by the plaintiff in
his cross-examination. It was then submitted that according to the plaintiffs
one copy of partition deed was given to Vitthal. Though the plaintiffs were
called upon to produce the original, the same was not produced. Hence
after seeking permission to lead secondary evidence the same was brought on
record. It was then submitted that registration of the partition deed was not
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necessary and even if Exhibit-188 was not taken into consideration there was
other evidence to support the contention that the partition had taken place.
Shri P. S. Khubalkar, learned counsel for respondent No.4
supported the submissions made on behalf of the legal heirs of original
defendant No.1.
7. I have heard the learned counsel for the parties at length and I
have perused the records of the case. While it is the case of the plaintiffs that
there was no previous partition of the suit property viz. Survey No.29, it is
the case of defendant No.1 that such partition took place on 07/05/1972
which was thereafter acted upon. The plaintiff No.2 examined himself
below Exhibit-45. In his cross-examination he stated that initially the house
property was partitioned between Vitthal and Pandurang. A deed of
partition was prepared and one copy thereof was given to his father Vitthal.
He also admitted that this partition was reduced to writing. As per this
partition, Survey No.29 was equally divided and both the portions had equal
value. He admitted that besides Survey No.29 there was another landed
property belonging to his grandfather Tukaram. There was however no
dispute with regard to that property and it was mutated in the names of
respective parties as per the partition deed. Thereafter parties had disposed
of their respective shares. It was further stated that while defendant No.1
got 6.68 R land his father got 6.25 R land. Mutation entries were taken in
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the revenue records as per the partition deed. The revenue records at
Exhibit-159, 160 and 161 referred to the respective shares of the parties.
8. It is to be noted that the defendant No.1 by application below
Exhibit-80 on 18/09/2008 had sought a direction against the plaintiffs for
producing the partition deed under provisions of Order XI Rule 12 of the
Code of Civil Procedure, 1908. Said application was allowed by the trial
Court as per order dated 20/10/2008. The partition deed was however not
produced. Thereafter as per application below Exhibit-110 permission to
adduce secondary evidence was sought on 06/07/2009. This application
was allowed by the trial Court on 14/07/2009. In pursuance to this
application secondary evidence with regard to the partition deed dated
07/05/1972 came to be led. Considering the deposition of plaintiff No.2 as
well as his cross-examination, the ratio of the decisions relied upon by the
learned counsel for the appellant do not support his contentions. Even
according to plaintiff No.2 a copy of partition deed was handed over to his
father. The partition deed was not produced despite order passed below
Exhibit-80. Hence secondary evidence was rightly permitted to be led.
9. Even if the contention of the appellant that partition deed dated
07/05/1972 could not be taken into consideration for want of its registration
is accepted, on that basis the entire defence raised by defendant No.1 would
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not get wiped out. There was other evidence in the form of various revenue
entries at Exhibits-159 to 161 and other sale deeds to indicate that after the
partition had taken place, the same was acted upon and both the parties
came in possession of their respective shares and were enjoying the same
separately. The deposition of plaintiff No.2 clearly reveals that various other
properties were divided between the two brothers and the respective families
were enjoying their shares. Further, property falling to the shares of both the
brothers was sold to a Housing Society to which there was no objection.
Thus, if the evidence on record is otherwise sufficient to come to the
conclusion that there was a partition of the properties and the same was duly
acted upon by the parties, mere non-registration of the actual deed of
partition would not work to the prejudice of defendant No.1 or wipe out his
case that partition had taken place.
In the light of the evidence on record and in the facts of the
present case the substantial question of law is answered by holding that both
the Courts were right in accepting the plea of partition. Consequently the
Second Appeal stands dismissed with no order as to costs.
JUDGE
Asmita
