Smt. Saraswati Mukundrao ... vs Shri. Bhagwan Sahebrao Algude And ...
2021 Latest Caselaw 4026 Bom

                                                                                23-sast-2863-2020 with ia-1994-2020


                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 CIVIL APPELLATE JURISDICTION

                                                SECOND APPEAL (ST) NO.2863 OF 2020

                            Smt.Saraswati Mukundrao Algude
                            (Deceased)
                            Shri.Mahadev Mukundrao Algude & Ors.                       ..Appellants
                                        Vs.
                            Mr.Bhagwan Sahebrao Algude & Ors.                          ..Respondents
                                                           ----
                            Mr.Avinash B. Avhad for the Appellants.
         Digitally signed
Nilam    by Nilam Kamble

Kamble   Date: 2021.03.05
         17:30:54 +0530     Mr.V.S. Talkute for Respondent Nos.1 to 5 and 7.
                                                            ----
                                                           CORAM : C.V. BHADANG, J.

                                                                   DATE    : 04th MARCH 2021

                            P.C.:

1. The appellants are the original Defendant Nos.1 to 7.

The respondent Nos.1 to 7 (Original Plaintiffs) had filed RCS No.

159 of 2004 against the appellants and others for partition and

separate possession of several properties as described in the plaint.

The suit was resisted on behalf of the appellants.

2. The learned trial Court framed the following issues:

                                               Sr.No.                        Issues
                                                  1     Do the plaintiffs prove that, the suit properties

are joint family properties of them and defendants no.1 to 8 ?

N.S. Kamble page 1 of 8 23-sast-2863-2020 with ia-1994-2020

2 Do the defendants prove that, there was partition of the suit properties between the parties in 1967 ?

3 Do the defendants prove that, all the ancestral properties are not included in the suit as suit properties ?

4 Are the plaintiffs entitled to partition ? If yest, what would be their share ?

5 Are the plaintiffs entitled to separate possession of the suit properties as prayed for ?

6 Are the plaintiffs entitled to permanent injunction as prayed for ?

7 What order and decree ?

3. The parties led oral and documentary evidence. The

learned trial Court by a judgment and decree dated 28 th February

2017 decreed the suit. Feeling aggrieved the appellants challenged

the same before the learned District Judge in Regular Civil Appeal

No.152 of 2017.

4. The learned District Judge by the impugned judgment

and decree dated 17th December 2019 has partly allowed the appeal,

thereby modifying the decree passed by the trial Court. The

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operative part of the judgment of the First Appellate Court may be

reproduced thus :-

"ORDER

1. The appeal is partly allowed.

2. The decree passed in R.C.S. No.159/2004 dated 28/02/2017 is modified to the extent of clause No.2.

3. The clause No.2 of the decree is replaced as under:-

(2) The plaintiffs No.1 to 5, 7, the defendant No.2 to 7, 8A, 10 to 13, 14 to 17, 18A to 18E, 19 to 22 and 34A to 34C are entitled to partition and separate possession in respect of suit properties more particularly described in paragraph No.1 of the plaint as follows:

(A) Plaintiffs No.1 to 5 and defendants No.34A to 34C are jointly entitled to 7/30th share in the suit properties.

(B) The defendants No.2 to 7 and 8A are jointly entitled to 7/30th share in the suit properties. (C) Plaintiff No.7 is entitled to 7/30th share in the suit properties.

(D) The defendants No.10 to 13 are jointly entitled to 7/30th share in the suit properties. (E) The defendants No.14 to 17, 18A to 18E, 19 and 20 are jointly entitled to 1/30th share in the suit properties.

(F) The defendants No.21 and 22 are jointly entitled to 1/30th share in the suit properties.

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4. Rest of the decree passed by Ld. Trial Court is confirmed.

5. Decree be drawn up accordingly."

Feeling aggrieved the appellants are before this Court.

5. I have heard the learned counsel for the appellant and

the learned counsel for the contesting respondent Nos.1 to 7.

Perused record.

6. Mr.Avhad the learned counsel for the appellants has

raised two grounds. First that the suit properties were already

partitioned in the year 1967 and therefore the subsequent suit for

partition was not maintainable. Secondly, it is submitted that there

was a consolidation scheme implemented in the village where the

earlier survey numbers were converted into gat numbers. It is

submitted that once the suit properties have been converted into gat

numbers after consolidation the suit for partition was not

maintainable.

In the submission of the learned counsel, the act of the

plaintiffs in seeking partition of the land, after their consolidation

would tantamount, to challenging the consolidated scheme, itself

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which is prohibited by Section 36A of the Maharashtra Prevention of

Fragmentation and Consolidation of Holdings Act ('the Act' for

short).

7. The learned counsel for the appellant has placed

reliance on the decision of this Court in the case of Yashwant

Ramchandra Dhumal deceased by L.Rs. Ashok Yeshwant Dhumal

and Others V/s. Shankar Maruti Dhumal & Another1.

Except these there are no other contentions raised.

8. Mr.Talkute, the learned counsel for the contesting

respondent has supported the impugned judgment. It is submitted

that the theory of the earlier partition of the year 1967 has been

negatived by both the Courts below and that finding of fact properly

recorded is not amenable to challenged. Insofar as the ground

based of the consolidation of holdings is concerned, it is submitted

that the consolidation cannot change the nature of the properties or

the title.

1     2001 (2) Mh.L.J. 576

     N.S. Kamble                                                        page 5 of 8

23-sast-2863-2020 with ia-1994-2020

9. I have carefully considered the circumstances and the

submissions made. With the assistance of the learned counsel for

the parties I have gone through the record.

10. Insofar as the first ground is concerned the defence

about the earlier partition of the year 1967 has not been accepted by

both the Courts below. The said finding of fact has been properly

recorded on the basis of the evidence led. It is now well settled that

in the absence of a finding of fact being shown to be perverse and

against the weight of the evidence no substantial question of law

arises. Thus the contention insofar as the partition of the year 1967

which has concurrently been negatived, to my mind does not give

rise to any substantial question of law.

11. Coming to the issue of consolidation it is true that the

suit properties have been consolidated in the year 1970. However,

it is difficult to see as to how such consolidation can bring about the

nature of the property or its title. The properties were found to be

joint family properties and they would continue to be so, even after

consolidation. Thus the mere fact that the plaintiffs are seeking a

partition of the suit property which have been subject matter of a

consolidation scheme cannot tantamount the plaintiffs challenge the

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consolidation scheme itself, which is prohibited under Section 36A

of the said Act.

12. The reliance placed on the decision in the case of

Yashwant Ramchandra Dhumal to my mind is misplaced, inasmuch

as that was not a case which arose out of a suit for partition. In that

case property bearing block Nos.1428 and 1429 were subject matter

of dispute and this Court found that the manner in which the two

blocks were formed was admitted.

13. The appellants therein had filed a suit claiming that

they had given possession of the land Survey No.199/4-B + 5 to the

respondent No.1 only for a period of three years from 1972 to 1975

in consideration from a loan taken for the respondent No.1.

Further according to the plaintiff after the expiry of the

period of three years the possession of the respondent No.1 became

unauthorized and unlawful. It was in these circumstances, that the

suit was filed for possession in the year 1969.

14. In these circumstances, the trial Court held that it had

no jurisdiction to entertain the suit in view of the bar under Section

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36A of the said act. In my considered view, the case clearly turned

on its own facts.

15. The First Appellate Court has dealt with the ground

based on the consolidation, from paragraph 26 of the judgment and

has found, and to my mind rightly so, that the fact that the

properties have undergone a consolidation would not change the

status or the nature of the properties, if there were otherwise held to

be ancestral properties. In the circumstances, the second ground

also cannot be accepted.

16. The appeal is without any merit and it is accordingly

dismissed, with no order as to costs.

Decree be drawn accordingly.

C.V. BHADANG, J.

  N.S. Kamble                                                       page 8 of 8