Sardalkhan Najarkhan vs Chotekhan Najar Khan And Others
2021 Latest Caselaw 10807 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        SECOND APPEAL NO.315 OF 2021

                        SARDALKHAN S/O NAJARKHAN
                                 VERSUS
                   CHOTEKHAN S/O NAJAR KHAN AND OTHERS

                                   .....
     Advocate for Appellant : Mr. N. K. Kakade i/b Mr. A. N. Kakade
       Advocate for Respondents No.1 to 5 : Mr. A. S. Deshmukh
                                   .....
                                 WITH
              CIVIL APPLICATION NO.7847 OF 2021
                          IN SA/315/2021

                                  WITH
                    CIVIL APPLICATION NO.7849 OF 2021
                             IN SA/315/2021
                                   .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    11-08-2021.

ORDER :

1. Present appeal has been filed by original defendant No.1

challenging the concurrent Judgment and findings.

2. Present respondents No.1 to 5 are the original plaintiffs who had

filed Regular Civil Suit No.53 of 2011, before Civil Judge Junior

Division, Jintur, District Parbhani, for partition and separate

possession. The said suit came to be decreed on 01-09-2014. The

present appellant/original defendant No.1 challenged the said decree

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before First Appellate court by filing Regular Civil appeal No.130 of

2014. The said appeal was heard by learned District Judge-4,

Parbhani, and partly allowed on 05-02-2020. The learned Trial

Judge had declared that the plaintiffs No.1 to 4 and defendants No.1

and 2 are having 1/6th share in the suit property in the share which

was allotted to their father Najarkhan. It was also declared that the

plaintiff No.5 and defendant No.3 are having 1/12th share. The First

Appellate Court modified it and held that plaintiffs No.1 to 4 and

defendant No.1 and 2 are having 14/104 th share each, plaintiff No.5

is having 7/104th, whereas defendant No.3 is having 11/104 th share

out of 1/5th share of Najarkhan. This was the modification. Hence,

defendant No.1 is before this Court in Second Appeal.

3. Heard learned Advocate Mr. N. K. Kakade instructed by

learned Advocate Mr. A. N. Kakade for appellant and learned

Advocate Mr. A. S. Deshmukh for respondents No.1 to 5. In order to

cut short, it is stated that both of them have made submissions in

support of their respective contentions.

4. The relationship between the parties is not denied. So also it

is not denied that the suit property was originally belonging to one

deceased Sharifkhan Pathan. After the demise of Sharifkhan

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Pathan, the property was partitioned amongst his five sons. One of

whom was Najarkhan who was the father of the plaintiff and

defendants. It is also not disputed that share of Najarkhan was

recorded in the name of defendant No.1 as on the date of that

partition Najarkhan had already expired. It is also almost not

disputed especially by the present appellant that plaintiff and

defendants have share in the suit property, however, he is coming

with a case that they have relinquished their shares in favour of

defendant No.1 as he had given consideration to them. If we

consider the record then it can be seen that there is no proof about

payment of consideration and execution of relinquishment deed

which would then be compulsory.

5. Now the learned Advocate for the appellant is harping upon

the fact that the point of limitation has not been considered properly

by both the Courts below. In fact, it ought to have been held that

the suit is beyond the period of limitation. He is also stating that

though the document which was produced showing relinquishment

was on valid stamp paper of Rs.100/- but sine it was not registered,

it has been not considered by both the Courts below. The Muslim

Personal Law acknowledges even oral relinquishment and, therefore,

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registration of the document ought not to have been insisted.

According to him these are the two important substantial questions

of law. He also submits that if partition would be effected then it

would be in very small pieces and it would be then against the

Bombay Prevention of Fragmentation and Consolidation of Holdings

Act, 1947. The decree would be non executable and, therefore, such

decree ought not to have been passed. Coming back to the point of

relinquishment deed even if we consider that Muslim Personal Law

gives liberty to relinquish the share orally, yet there is no proper

evidence for the same adduced by the present defendant. The

provisions of Indian Registration Act under Section 17 have been

rightly considered here.

6. As regards the point of limitation is concerned, it was tried to

be contended that in respect of Muslim Succession Act the fixed

share would devolve on the heir on the demise of the original owner.

The shares would devolve on the heirs as tenant in common and the

concept of joint cultivation cannot be imported and, therefore, the

holding of one of the heir cannot be said to be holding for another

share holder. The suit would be then barred by limitation. It is to

be noted that a specific issue was framed by both the Courts below

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in respect of limitation. The learned First Appellate Court has

considered that the starting point would be when the mutation entry

was recorded in the name of defendant No.1 on 07-06-2011 it would

start and not prior to that. The First Appellate Court has also taken

note of the deposition of the plaintiff and has held that the cause of

action arose from 08-06-2011. There is no necessity to deviate

from the same as it is not the case of defendant No.1 that since 09-

01-2002 he was holding the said property adversely to the share

and interest of plaintiff and other defendants. Unless the adverse

title is claimed, there cannot be cause of action or unless refusal is

there to carve out the share, cause of action will not be there and,

therefore, the suit was definitely within limitation.

7. Thirdly, the point that has been raised as regards the Bombay

Prevention of Fragmentation and Consolidation of Holdings Act is

concerned, the Collector to whom the precept would be sent has

every power under the Bombay Prevention of Fragmentation and

Consolidation of Holdings Act itself as well as Partition Act to effect

the partition, and if it is leading to small pieces then what course of

action is available to that authority has already been prescribed in

the statute. Therefore, on that point the right of the plaintiff to get

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his share separated cannot be denied. Implementation of the

decree would take as per the provisions of law. Hence, no

substantial question of law as contemplated under Section 100 of

the Code of Civil Procedure are arising int his case requiring

admission of the second appeal. Hence, the second appeal stands

rejected. Pending civil applications stand disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-