Manohar S/O Irappa Sarkale vs Kishan S/O Irappa Sarkale And ...
2021 Latest Caselaw 11781 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      SECOND APPEAL NO.524 OF 2017
                                  WITH
                   CIVIL APPLICATION NO.10010 OF 2017
                             IN SA/524/2017

                        MANOHAR S/O IRAPPA SARKALE
                                  VERSUS
                   KISHAN S/O IRAPPA SARKALE AND OTHERS

                                    .....
                 Advocate for Appellate : Mr. N. D. Kendre
          Advocate for Respondents No.1, 2/3 : Mr. R. K. Ashtekar
                                    .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    25-08-2021.

ORDER :

1. Present second appeal is filed by the original plaintiff challenging

the Judgment and decree passed in Regular Civil Appeal No.72 of 2015

by learned District Judge-4, Latur on 25-11-2016 thereby partly

allowing the appeal filed by the original defendants and modifying the

decree passed in Regular Civil Suit No.119 of 2007 by learned Joint

Civil Judge, Junior Division, Chakur on 04-04-2015.

2. Heard learned Advocate Mr. N. D. Kendre for appellant and

learned Advocate Mr. R. K. Ashtekar for respondents No.1, 2/3.

3. It is to be noted that the present appellant had filed the suit for

2 SA 524-2017

partition and separate possession. It was a specific case of the

plaintiff that he and defendants had jointly purchased property old

Survey No.69 i.e. new Gut No.255 admeasuring 80 feet East-West

and 30 feet South-North in the name of defendants No.1 and 2 from

one Dnyanoba Sadaba Chate through registered sale deed

No.685/1998. Thereafter, the said plot has been given House

No.1067 i.e. City Survey No.414. Plaintiff and defendants are

having ancestral House No.505 in the name of their father. After the

death of father, it was mutated in the name of defendants No.1 and

2. Plaintiff claimed that he is having 1/4th share in the same and

sought partition. However, further, he had contended that he

purchased property No.239 in village Chapoli and it is his self-

acquired property. Defendants have no concern over the same.

Defendants in their written statement denied the fact that City

Survey No.414 is the Joint Family Property of them and the plaintiff.

4. The learned Trial Judge held that the suit properties are the

joint family property and ancestral property respectively and,

therefore, it was declared that plaintiff, defendants No.1 and 4 have

1/4th share each whereas defendants No.2/1 to 2/4 have 1/16th

share each in the property bearing No.1067 and 505 situated at

3 SA 524-2017

village Chapoli Tq. Chakur Dist. Latur.

5. In the appeal filed by the original defendants, the First

Appellate Court has held that the suit plot is not joint family

property, however, suit house No.505 is the ancestral property and,

therefore, plaintiff, defendants No.1, 2/1 to 2/4 collectively have

3/10th share each whereas defendant No.4 has 1/10th share in the

same.

6. Learned Advocate for the appellant submitted that the First

Appellate Court ought not to have interfered with the Judgment and

decree passed by the learned lower Court in respect of suit plot

No.1067 as it was the property purchased out of the joint family

income. There was no evidence led by the defendants to show that

prior to the purchase of that property, there was separation between

them, therefore, the substantial question of law in respect of the

said property is arising.

7. At the outset, it is to be noted that even the plaintiff had come

with a case that he himself had acquired house No.239 at village

Chapoli by executing a registered sale deed in his favour. He has

not included that property in the hotchpot for the aforesaid reason.

4 SA 524-2017

That means, if he can hold separate property/self-acquired property

then defendants No.1 and 2 can also equally acquire the immovable

property. The learned First Appellate Court has correctly assessed

the fact that the plaintiff has not led any evidence to show that he

had contributed towards the joint family funds before acquisition of

the said property. He has not given any reason as to why the sale

deed could be examined in the name of defendants No.1 and 2 and

he would have been left out of the consideration. The proof beyond

pleadings by the plaintiff has also been considered by the First

Appellate Court. Per contra, defendants No.1 and 2 had examined

the witnesses who were present at the time of execution of the said

sale deed in their favour. Those witnesses have also categorically

stated that the amount of consideration was given by defendants

No.1 and 2. It has not been brought by the plaintiff on record that

defendants No.1 and 2 had no independent source of income to

purchase any property. Under such circumstances, when the

documentary, as well as oral evidence, has been correctly

appreciated, it could not give rise to any substantial question of law.

8. As against this, House property No.505 being the ancestral

property has been rightly held liable to be partitioned and

5 SA 524-2017

accordingly the partition has been directed to be effected.

Therefore, no substantial question of law as contemplated under

Section 100 of the Code of Civil Procedure is arising in this case.

The second appeal, therefore, stands dismissed at the threshold.

Pending Civil Application also stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-