Shivajirao Shamrao Borage And Anr vs Uday Sarjerao Shewale And Ors
2021 Latest Caselaw 10322 Bom

                                                                   9.6934.19 WP.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO. 6934 OF 2019

      SHIVAJIRAO SHAMRAO BORAGE                                   ....PETITIONER
      AND ANR

              V/s.

      UDAY SARJERAO SHEWALE AND ORS                         .....RESPONDENTS

      Mr. Kalpesh U. Patil for the Petitioner
      Mr. Dilip Bodake a/w Mr. Sharad Bhosale a/w Shraddha Pawar for
      Respondent nos. 1 to 3

                               CORAM :   NITIN W. SAMBRE, J.

                               DATE:     AUGUST 4, 2021.

      P.C.:

      1]      Petitioner-plaintiff questioned the sale deed dated 31/08/2016

executed by defendant nos. 1 & 2 in favour of defendant no. 3 in a

Suit for declaration and permanent injunction. Order of the trial

Court rejecting temporary injunction was confrmed in Appeal. As

such, this petition.

2] The submissions are, theory of oral partition as was put forth

by defendant-respondents has no basis in law as specifc details

9.6934.19 WP.doc

about such oral partition are neither produced nor effecting of such

oral partition by metes and bounds is demonstrated before the court

below. According to learned counsel for the petitioner, in absence of

challenge to the shareholding, the least that was expected of

defendant no. 3, who has stepped into the shoes of the defendant

nos. 1 & 2 to get shares quantifed in a suit for partition. Reliance is

placed on the provisions of Section 44 and Section 8 of the Transfer

of Property Act.

3] Mr. Bodake, learned counsel appearing for defendant no. 3-

respondent would support the impugned judgment.

4] Apart from the fact that there are concurrent fndings recorded

against the petitioner on the issue of temporary injunction, there is

suffcient material in the form of revenue record which speaks of

holding of share by defendant no 3 which was transferred in favour of

defendant nos. 1 & 2.

5] Once the revenue record depict such an old entry, burden shifts

9.6934.19 WP.doc

on the petitioner-plaintiff.

6] Defendant has tried to justify his claim over the suit property by

placing on record affdavit of independent witnesses who were not

subjected to cross-examination by the plaintiff-petitioner and as

such, both the courts below were justifed in considering the

affdavits in favour of respondent-defendant.

7] Since the evidence placed on record justifes the view expressed

by both the courts below, in my opinion, submissions of the learned

counsel for the petitioner that in absence of suit claim for partition,

relief ought not to have been denied, cannot be sustained.

8] That being so, no case for interference in extraordinary

jurisdiction is made out.

8] Petition as such fails, stands dismissed.

[NITIN W. SAMBRE, J.]