Gorakshanath Anandrao Tarte vs Jagannath Anandrao Tarte And ...
2021 Latest Caselaw 8761 Bom

                                           (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       SECOND APPEAL NO.130 OF 2021

 Gorakshnath s/o Anandrao Tarte                               = APPELLANT
                                                             (Orig.Plaintiff)
          VERSUS

 1.       Jagannath s/o Anandrao Tarte
          and Ors.                                            = RESPONDENTS
                                                            (Orig.Defendants)
                                          -----
 Mr.Sushant B.Choudhary,Advocate for Appellant;
                                          -----

                                   CORAM :       SMT.VIBHA KANKANWADI,J.

                                   DATE :         5th July, 2021.

 PER COURT :-

1. Heard learned Advocate appearing for the

appellant. He submitted that both the Courts below

have not appreciated the evidence properly. Both

the Courts have failed to consider that the

property in dispute was ancestral property. Though

mutation entry discloses name of the plaintiff as

well as defendant No.1; yet when the defendant No.1

had come with a case that there was previous

partition then he ought to have proved it. There

was no specific document regarding the said

partition as well as relinquishment of the rights

of their sister. In view of the amendment to

Section 6 of the Hindu Succession Act, 1956, when a

daughter having been even equal right in the

property then she ought to have received it. The

alleged admissions have not been properly

considered. In appeal also, the First Appellate

Court, though bound by the law to re-appreciate the

evidence, has not re-appreciated it properly and,

therefore, substantial questions of law are arising

in this appeal, requiring admission of the Second

Appeal.

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

present appellant is the original plaintiff, who

had filed Regular Civil Suit No.400/2011 before the

Joint Civil Judge, Junior Division, Ashti, District

Beed for partition and separate possession. The

suit properties, situated at village Doithan Tq.

Ashti District Beed, more particularly described

in para 1 of the Plaint, were thus, -

  Sr.No.           Survey Number                     Area
                                                     H-R.
      1)                 154/A/1                     5-63
      2)                157/AA/3                     7-68
      3)                       164                   0-77
      4)                       165                   0-83
      5)                 184/A/5                     0-43
      6)                184/AA/3                     2-47

3. The properties were left by their Father

Anandrao was survived by the plaintiff and

defendant No.1 as well as their sister -

Hirabai. Later on, Hirabai expired in 2010.

According to the plaintiff, there is no partition

by metes and bounds. It was an admitted position

that the Government had acquired certain portion

from Survey No.154/1 and 157/AA for Doithan Storage

Tank and the plaintiff and defendant No.1 had

received the compensation. The plaintiff,

therefore, prayed for partition and separate

possession.

. The defendant No.1 had resisted the claim

by saying that already there was partition between

the plaintiff and defendant No.1 during the life

time of their father. Their father had partitioned

the land in 1985 in equal shares. At that time

itself, Hirabai had relinquished her right from the

suit properties. Defendant No.1, therefore,

contended that the plaintiff cannot re-open the

partition. He also contended that the compensation

that was given for the acquisition of their land by

the Government, has been received by the plaintiff

and defendant No.1 in equal shares. Further, the

plaintiff himself had sold 70 Ares land out of

Survey No.131/AA/3 to one Chandrabhagabai

Fakkadrkao Tarte, by a registered sale-deed on

29.6.1992. Defendant No.1 contended that he has

spent huge amount for the development of the land,

which he is cultivating after the partition.

4. After the Issues were framed, the parties

have led oral as well as documentary evidence. The

learned Trial Judge has held that the suit

properties are not joint Hindu Family properties of

the plaintiff and the defendants. It was held that

the joint-family properties were already

partitioned and, therefore, the plaintiff is not

entitled to get the decree. The suit came to be

dismissed. The plaintiff thereafter preferred an

appeal being Regular Civil Appeal No.29/2016 before

the District Court at Beed on 29.6.2018. The decree

passed by the Trial court was confirmed and the

appeal came to be dismissed. Hence, this Second

Appeal.

5. In Ashok Rangnath Magar Vs. Shrikant

Govindrao Sangvikar - (2015) 16 SCC 763 , the

Hon'ble Apex Court held that Second Appeal can be

dismissed even without formulating the substantial

questions of law. It has been held thus, -

"18. In the light of the provision contained in Section 100 Civil Procedure

Code and the ratio decided by this Court, we come to the following conclusion:-

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Civil Procedure Code."

The aforesaid position of law has been reiterated

by Three-Judges Bench decision of the Hon'ble Apex

Court in the case of Kirpa Ram (Deceased) Through

L.Rs. And Ors. Vs. Surendra Deo Gaur and Ors. -

(2021) 3 Mah.L.J. 250, wherein it has been held

thus, -

"23. Sub-section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required

to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court."

6. In view of the aforesaid legal position

for issuing notice to the respondents, it would be

mandatory for this Court to formulate substantial

questions of law, if the appellant successfully

proves that there are substantial questions of law,

which are required to be formulated in this case.

7. The first and foremost fact is that there

are concurrent findings of facts by both the Courts

below. The findings are based on oral as well as

documentary evidence. Though the plaintiff appears

to have come with a case that there is no partition

at all till date of the suit by metes and bounds;

yet perusal of the judgments of both the Courts

below would show that they have appreciated the

cross-examination of the plaintiff, wherein he has

admitted that Anandrao partitioned all his

properties in the year 1985. The plaintiff

categorically admitted that in the said partition,

half of the shares in all the properties, showing

specific four boundaries, were allotted to him as

well as separately to defendant No.1. Further, it

appears that their sister - Hirabai had

relinquished her rights over the suit properties.

The important point to be noted is that there

appears to be no written document regarding

relinquishment of the share by Hirabai. However,

to this partition suit, defendant Nos.2 to 4 were

the legal heirs of Hirabai. In spite of due

service to defendant No.2, he failed to appear and,

therefore, the suit had proceeded ex-parte against

him. Further, the plaintiff had not taken

effective steps for serving defendant Nos.3 and 4

and, therefore, the suit came to be dismissed

against them for want of taking steps. In fact,

the decree, that can be passed in any suit for

partition, would be joint and several. If the

plaintiff is coming with a case that defendant Nos.

3 and 4 were the co-sharers then when his suit came

to be dismissed, because of inaction on the part of

the plaintiff, then it ought not to have been

proceeded further against the other defendants

also. It ought to have been dismissed in toto when

the order of dismissing the suit as against

defendant Nos.3 and 4 came to be passed. This fact

is properly considered in para No.35 of the

Judgment by the First Appellate court. This also

leads to dismissal of the Second Appeal also as it

is not tenable when the plaintiff intends to

challenge the said decree passed by the Trial

Court.

8. Both the Courts below have properly

appreciated the actions by the plaintiff himself so

also the actions of defendant No.1 in treating the

land, which had come to their share. If there was

no partition by metes and bounds, then how the

plaintiff could have sold 70 Ares land, is a

question, which has not been answered by him.

Further, defendant No.1 appears to have constructed

a tenement of 22 tin-sheets in Survey No.152/A/3

and had taken loan from the Society. Another

action of receiving equal compensation amount in

respect of acquisition of the land from the

Government by the plaintiff and defendant No.1

independently, is also the act suggesting the

partition. Though there appears to be no written

document regarding the partition; yet the parties

had proceeded and were acting in pursuant to the

oral partition. Such partition cannot be re-opened

and, therefore, the suit was rightly dismissed by

the Trial Court. The appeal was also rightly

dismissed by the First Appellate Court. No

substantial questions of law are arising in this

appeal. There is no necessity to formulate

substantial questions of law. The Second Appeal

thus stands dismissed at the stage of admission

itself.

(SMT. VIBHA KANKANWADI) JUDGE BDV