Bombay High Court
Santabai Baliram Yeole vs Bhagwan Shrirang Yeole, Died Thr. ... on 18 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
915 SECOND APPEAL NO.652 OF 2012
WITH
CIVIL APPLICATION NO.10974 OF 2012
SANTABAI W/O BALIRAM YEOLE
VERSUS
BHAGWAN SHRIRANG YEOLE, DIED, THR LRS BAJIRAO AND ORS
...
Mr. G.K. Thigle-Naik, Advocate for the appellant
Mr. S.G. Chapalgaonkar, Advocate for respondent
Nos.2 to 11, 14, 15, 18 and 19
Mr. R.V. Deshmukh, Advocate for respondent Nos.16 and 17
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 18th AUGUST, 2021.
ORDER :
1 Present appeal has been filed by the original plaintiff challenging
the Judgment and Decree passed in Regular Civil Appeal No.10/2007 by
learned Principal District Judge, Beed, thereby allowing the appeal filed by
present respondents-original defendants and thereby setting aside the
Judgment and Decree passed by the learned 3 rd Joint Civil Judge Junior
Division, Beed in Regular Civil Suit No.288/2004 on 30.11.2006. By
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allowing the appeal, the First Appellate Court had dismissed the suit, which
was filed by the present plaintiff, for partition and separate possession and
which was earlier decreed by the learned Trial Court.
2 Heard learned Advocate Mr. G.K. Thigle-Naik for the appellant,
learned Advocate Mr. S.G. Chapalgaonkar for respondent Nos.2 to 11, 14, 15,
18 and 19 and learned Advocate Mr. R.V. Deshmukh for respondent Nos.16
and 17.
3 Learned Advocate for the appellant has relied on the decision in
Uma Pandey and another vs. Munna Pandey and others, (2018) 5 SCC 376,
wherein it has been held that when there is question of interpretation of a
document, then it raises a substantial question of law under Section 100 of
the Code of Civil Procedure, 1908.
4 It can be seen that plaintiff had come with a case that she is the
sister-in-law of defendant Nos.1 to 4. Her husband Baliram had share in the
suit lands, which was inherited from father Shrirang. Baliram expired in
1984, whereas Shrirang expired in 1994. After death of Shrirang name of the
plaintiff was taken in the revenue record vide Mutation Entry No.338 along
with defendant Nos.1 to 6, as Shrirang's heirs. However, later on, since last
few years prior to the suit the defendants are not giving her share, whereas
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the defendant No.2 had sold two lands to defendant Nos.7 to 13. Therefore,
she filed suit for partition. Defendant Nos.1, 2, 7 to 10, 13 and 19 filed their
written statement and when the defendant Nos.3, 4 and 11 accepted that
written statement, defendant Nos.5 and 6 filed joint written statement. They
denied all the averments in the plaint. They had contended that husband of
the plaintiff expired on 19.07.1986, whereas, Shrirang expired on
17.04.1989. Thereafter, ancestral lands owned by Shrirang were orally
partitioned between all the parties in the year 1993. The mutation entry was
also certified by the competent authority to that effect on 08.02.2000. It is
then contended that plaintiff had consented to include her share in the name
of her daughters. Her daughters have sold the land and, therefore, now the
plaintiff cannot claim any partition. The daughters of the plaintiff, who are
the original defendant Nos.5 and 6, by filing their separate written statement
joined the averments of the plaintiff and submitted that the defendant Nos.1
and 2 had pressurized them to execute the sale deed and accordingly those
sale deeds have been executed by them.
5 It is to be noted that the learned Trial Judge held that the suit
properties are ancestral properties. The sale deeds, five in number, are
illegal, null and void and not binding on the plaintiff. It is then held that the
defendants have failed to prove that the suit properties were partitioned in
4 SA_652_2012
the year 1993. It was further held that the defendant Nos.7 to 13 are not
bona fide purchasers of the suit property. However, the learned First
Appellate Court reversed these findings. It was held that the defendants have
proved that the partition was already effected between plaintiff and
defendants in the year 1993. Defendant Nos.7 to 13 are the bona fide
purchasers of the suit property for value without notice.
6 Since the basic findings have gone against each other, in general,
the case is made out to admit the Second Appeal. Now, as regards the
previous partition is concerned, it appears that the parties are relying on the
subsequent entries in the revenue record, so also, it appears that the sale
deed, to which the defendant Nos.5 and 6 were parties, has also been
concerned. Under such circumstance, when the documents are required to
be interpreted, in view of the decision in Uma Pandey (supra), case is made
out to admit the Second Appeal. Second Appeal stands admitted. Following
are the substantial questions of law.
1 Whether the First Appellate Court was justified in
reversing the findings of the Trial Court in arriving at a
conclusion about previous oral partition in the year 1993 ?
2 Whether defendant Nos.7 to 13 can be said to be the bona
fide purchasers of the suit properties for value without notice ?
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3 What is the interpretation of the conduct of defendant
Nos.5 and 6 in executing sale deed, that is, whether they
accepted the oral partition in the year 1993 ?
4 Whether interference is required.
7 Civil Application No.10974 of 2012 for stay would be heard at
the time of final hearing.
( Smt. Vibha Kankanwadi, J. )
agd
