Dada Tangaji Wani vs Bhagaji Tangaji Wani And Others
2021 Latest Caselaw 10390 Bom

                                             (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    SECOND APPEAL NO.623 OF 2018
                                 with
                  CIVIL APPLICATION NO.9371 OF 2018

 Dada s/o Tangaji Wani                                          = APPELLANT
                                                                (Orig.Plaintiff)

          VERSUS

 1)       Bhagaji s/o Tangaji Wani & Ors.                      = RESPONDENTS
                                                             (Orig.Defendants)
                                           -----
 Mr.MG Kolse-Patil,Advocate for Appellant;
 Mr.KD Jadhav,Advocate for Respondent Nos.2,3, 9 to 11.
                                           -----

                                     CORAM :       SMT.VIBHA KANKANWADI,J.

                                     DATE :        5th August, 2021.

 PER COURT :-

1. Present appeal has been filed by original

plaintiff, challenging concurrent judgment and

decree. He had filed Regular Civil Suit No.

145/2007 before Joint Civil Judge, Junior Division,

Sillod, District Aurangabad for partition and

separate possession. The said suit came to be

dismissed on 26.8.2015. He had challenged the said

decree in Regular Civil Appeal No.210/2015. The

appeal was heard by learned District Judge-1,

Aurangabad and it was dismissed on 4.12.2017.

Hence, the present Second Appeal.

2. Heard learned Advocates appearing for

the respective parties. In order to cut short it

can be stated that both of them have made

submissions in support of their respective

contentions.

3. It has been vehemently submitted on

behalf of the appellant that both the Courts below

have not considered the evidence as well as law

points properly. Both the Courts have mis-read the

evidence by ignoring the provisions of The Hindu

Succession Act, 1956. The family arrangement and

the previous partition ought to have been properly

considered in view of the principles laid down in

the case of Anar Devi Vs. Parmeshwari Devi - 2006

AIR (SCW) 5063. Only one share-holder is not

entitled to alienate the joint family property more

than his share without there being partition by

metes and bounds. Both the Courts below have

wrongly considered that the 7/12 extracts show

different entries and it is a proof for previous

partition. In fact, the 7/12 extracts are prepared

for physical purposes and it cannot take shape as

proof for partition. Both the Courts below have

also not considered the provisions of Sections 8,9,

and 31 of The Maharashtra Prevention of

Fragmentation and Consolidation of Holdings Act,

1947 (hereinafter to be referred as the said Act).

Both the Courts below committed an error in holding

that the suit is barred by limitation to get

declaration regarding the sale-deed as not binding

on the share of the plaintiff.

4. Per contra, learned Advocate appearing

for Respondent Nos.2, 3, 9 to 11, supported the

reasons given by both the Courts below. It was

submitted that the respondents had filed sufficient

evidence to show that there was previous partition

between the parties. The plaintiff never objected

many sale transactions, those were taken place

between 1999 to 2010. When there was the proof

regarding the previous partition, the partition

could not have been re-opened and, therefore, both

the Courts were justified in dismissing the claim

of the plaintiff.

5. At the outset, it is to be noted that

both the Courts below have considered the

documentary evidence, especially the effect of long

standing entries recorded in the 7/12 extracts and

also the instances of sale, that had taken place

during the period 1999 to 2010 by original

deft.Nos.2 and 3. Those transactions were never

objected by the plaintiff. This silence on the

part of the plaintiff also speaks for itself and it

could have been definitely taken as prima facie

indication of the previous partition. Further,

when the family arrangement had taken place and

members of the family were enjoying the property

accordingly, and then there are acts of ownership,

not objected by other co-owners or members, as the

case may be, then those instances can be definitely

taken as proof of partition. It can be seen that

deft.No.2 separately and deft.No.3 separately had

disposed of substantial piece of land. The

plaintiff had knowledge about the same; yet he did

not resist. Further, it is an admitted fact by the

plaintiff that 13 Ares land from Gut No.147 is in

possession of all the six brothers. Therefore,

even if there is no direct document of partition;

yet when by act of oral partition is allowed, then

it can be proved through other supportive

documentary evidence and that documentary evidence

has been produced in this case.

6. Both the Courts below have considered the

documentary evidence properly. So also the law

points involved in the case have been properly

considered. No substantial question of law, as

contemplated under Section 100 CPC, is arising in

this case, requiring admission of the Second

Appeal. Hence, the Second Appeal stands dismissed.

Pending civil application, if any, stands disposed

of.

(SMT. VIBHA KANKANWADI) JUDGE

BDV