Bombay High Court
Ambrish Bhargav Patil vs Kalidas Apparao Patil And Others on 22 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.298 OF 2021
AMBRISH S/O BHARGAV PATIL
VERSUS
KALIDAS S/O APPARAO PATIL AND OTHERS
....
Advocate for Appellant : Mr. V. D. Salunke
Advocate for Respondent No.1 : Mr. D. P. Palodkar
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 22-07-2021.
ORDER :
1. Heard learned Advocate Mr. V. D. Salunke for appellant and
learned Advocate Mr. D. P. Palodkar for respondent No.1.
2. It has been vehemently submitted on behalf of the
appellant/original defendant No.4 that he purchased the suit property
from defendants No.1 and 2 on 15-07-2011. Plaintiff had then come
with a case that there was an oral partition between him and the
defendants No.1 to 3 in which the suit property went to the share of
the plaintiff. He admits that suit property Survey No.69 remained in
the name of defendant No.1 in the revenue record. He says that
defendant No.1 was avoiding to give it in his name and, therefore, he
filed the suit, and thereafter an injunction order came to be passed in
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favour of the plaintiff on 25-07-2011, yet both the Courts below
have questioned the intention behind the sale deed between
defendant No.4 and defendants No.1 and 2 on 15-07-2011.
Defendant No.4 had come specifically with a case that he is a
bonafide purchaser for value without notice. He has examined
himself and produced the evidence on record. That evidence has not
been properly appreciated. He was not a party to another suit which
was filed by another bother of the plaintiff and defendants No.1 to 3
but then the decree in that suit has been made applicable to
defendant No.4. When both the Courts below have not considered
the facts and the legal points properly, substantial questions of law
are arising in this case.
3. Per contra, the learned Advocate Mr. D. P. Palodkar appearing
for the present respondent No.1/original plaintiff supported the
reasons given by both the Courts below submitted that defendant
No.4 is a close relative of the plaintiff and defendants No.1 to 3,
therefore, he has every knowledge about the oral partition that had
taken place between the brothers. So also he had earlier purchased
properties from the adjoining pieces of land, therefore he has the
knowledge that the suit property went to the share of the plaintiff.
3 SA 298-2021
He cannot claim that he was a bonafide purchaser for value without
notice. No substantial questions of law are arising in this matter.
4. At the outset, it can be seen that the admitted position is that
on the day the property was sold i.e. on 15-07-2011 it was standing
in the name of defendant No.1 in the revenue record. From the
Judgments of both the Courts below it appears that the year of
partition has not been stated by the Courts. If the partition had
taken place amongst the brothers long back, then why there was no
effort on the part of the plaintiff to get his name mutated to the
revenue records, is a question. His statement that defendant No.1
was avoiding to give it in the name of the plaintiff cannot be
accepted because nobody appears to have estopped the plaintiff
from approaching the revenue authorities with an application to get
his name mutated as owner on the basis of the oral partition. When
the property continued to be in the name of defendant No.1 in the
revenue record, then the question arises why defendant No.4 cannot
be taken as a bonafide purchaser for value without notice. Whether
the evidence and decree passed in another case to which defendant
No.4 was not a party to the proceeding can be made applicable here
is also another question. One more fact that is required to be noted
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is that defendants No.1 to 3 had come with a case that there was an
agreement to sell executed by the plaintiff in favour of them on 28-
04-2001. The learned Trial Judge after going through the contents
of the said document had come to the conclusion that it is, in fact, a
sale deed and since it is not registered it was not considered as an
agreement to sell. No doubt, while taking such defence the
defendants No.1 to 3 would be admitting that the suit property had
gone to the share of the plaintiff in the oral partition, but then
whether defendant No.4 had the knowledge about that document
and whether it was represented to him by the defendants No.1 to 3
that in view of the said document they are selling the property to
him is also required to be considered and whether any interest has
been created in favour of the defendant No.4 in the suit property is
also required to be considered. Therefore, substantial questions of
law are arising in this case. Hence, the second appeal deserves to
be admitted accordingly it is admitted.
5. Following are the substantial questions of law : -
(1) Whether both the Courts below erred in not holding
defendant No.4 as a bonafide purchaser for value without
notice ?
5 SA 298-2021
(2) Whether both the Courts below failed to protect the
interest of defendant No.4 ?
(3) Whether the suit was maintainable in the form it was
presented without there being any prayer to challenge the sale
deed executed between defendants No.1 and 2 in favour of
defendant No.4 ?
6. Issue notice to the respondents, to be made returnable on 27-
09-2021.
7. Learned Advocate Mr. D. P. Palodkar waives notice for
respondent No.1.
8. Call for record and proceedings.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
