Bombay High Court
Uttam Rabhaji Gore vs Bhausaheb Kisan Gore And Ors on 17 August, 2021
Bench: V. V. Kankanwadi
(1) SA No.722/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.722 OF 2012
Uttam Rabhaji Gore = APPELLANT
(Orig.deft.No.1)
VERSUS
1. Bhausaheb Kisan Gore & Ors. = RESPONDENT/S
(Resp.Nos. 1 to 8 are
orig.Plaintiffs and
Resp.Nos. 9 & 10 are
orig.deft.Nos. 2 & 3)
-----
Mr. NV Gaware,Advocate for Appellant;
Mr. VS Bedre,Advocate for Respondent Nos. 1 to 8.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 17th August, 2021.
PER COURT :-
1. Heard learned Advocate appearing for
respective parties. In order to cut short it can be
stated that both of them have made submissions in
support of their respective contentions.
2. Present appeal has been filed by original
defendant No.1, challenging concurrent judgment and
decree passed by the Courts below. Present
Respondent Nos.1 to 8 are the original plaintiffs,
who had filed Regular Civil Suit No.240/2007 before
the Civil Judge, Senior Division, Shrigonda,
District Ahmednagar for declaration and perpetual
(2) SA No.722/2012
injunction. The said suit came to be decreed on
5.3.2009. Present appellant (original deft.No.1)
challenged the said decree in Regular Civil Appeal
No.96/2009 before the District Court, Ahmedangar.
The said appeal was heard by learned District
Judge-8, Ahmednagar and it was dismissed on
2.1.2012. Hence, the present Second Appeal.
3. At the outset, learned Advocate appearing
for the appellant, submits that both the Courts
below have not considered the facts and law
properly. They failed to see that due to
encumbrance of Tagai on the suit property, effect
was not given to Mutation Entry No.1603 in the 7/12
extract. However, mutation entry No.1603
specifically shows that even the predecessor of the
plaintiffs had given an application, stating that
Gut No.429/5, i.e. the suit land, was already
allotted to deceased - Shankar, who is predecessor
of deft.No.1, about 20 years back in the partition.
That means, in fact, Shankar had become an
exclusive owner of the suit land; yet the
plaintiffs were claiming that it was the exclusive
property of their predecessor Kisan. Both the
(3) SA No.722/2012
Courts below have held that the said Mutation Entry
1603 is illegal. Therefore, substantial question
of law arising in this case is, when the
predecessor of the plaintiff had already accepted
that in the partition the property was given to
deceased Shankar, then whether the plaintiffs can
still only, on the basis of some mutation entries,
say that they are the owners ?
4. Per contra, learned Advocate appearing
for the respondents supported the reasons given by
both the Courts below.
5. It is to be noted that unless the
appellant shows substantial question of law, as
contemplated under Section 100 of CPC, the appeal
need not be admitted. Here, as regards the facts
involved in the case are that the suit property was
originally belonged to one Anusayabai, who was
cousin sister of Kisan and Shankar. It is also not
in dispute that Anusayabai had given the suit
property to Kisan. The year of giving the property
by Anusayabai to Kisan has not come on record; but
it is stated that there was partition amongst
(4) SA No.722/2012
Shankar and Kisan about 50 to 60 years prior to the
suit. Therefore, unless it is shown by deft.No.1
that the property was received from Anusayabai to
the family as such, Shankar will not have any
share. It appears from the record and it is only
on the basis of the mutation entries that name of
Kisan has been entered when it is stated that
Anusayabai gave the suit property to Kisan.
However, by Mutation Entry No.1603, it was tried to
be contended that Kisan had made an application,
stating that, that property was given to Shankar in
the partition. The defendant when now claiming
the exclusive ownership, he has not produced on
record the original application of Kisan. Further,
if that property was given to Shankar in the
partition, then it was not so reflected in the
mutation entry regarding the partition between
Kisan and Shankar in respect of their ancestral
lands. Therefore, the fact, about giving the land
exclusively to Kisan by Anusayabai, has been proved
by preponderance of probabilities by the
plaintiffs. Deft.No.1 has failed to prove that it
was given to Shankar exclusively in the partition.
There was no attempt to get the said mutation
(5) SA No.722/2012
entry corrected, which had stated that due to
the encumbrance, name of Shankar has been given in
the other rights column. If the fact is required
to be accepted, as the deft.No.1 contends, then
even name of Kisan ought to have been recorded in
the other rights column for that encumbrance of
Tagai. At no earlier point of time, prior to 2007,
there was an attempt on the part of deft.No.1 to
get his name mutated, who claimed that he is the
grand-son of Shankar. It also appears that neither
Shankar nor Rabhaji, i.e. son of Shankar and father
of the present appellant, had ever made any attempt
to get their name mutated to the suit property.
Under such circumstance, both the Courts below have
correctly and properly assessed the facts as well
as law involved in the case.
6. No substantial question of law is arising
in this appeal. The Second Appeal stands
dismissed. Pending civil application, if any,
stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
