Bombay High Court
Shailendra Raghunath Padile vs Smt. Kushabai Raghunath Padile ... on 17 March, 2021
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.800 OF 2016
WITH CA/14957/2016 IN SA/800/2016
Shailendra S/o. Raghunath Padile,
Age 49 years, Occu. Agriculture,
R/o. Mushirabad,
Taluka and District Latur. .. Appellant
Versus
1. Smt. Kushabai w/o. Raghunath Padile,
Age 79 years, Occu. Household,
R/o. Gaur, Taluka Nilanga,
District Latur.
2. Sow. Urmila w/o. Deelip Kasale,
Age 46 years, Occu. Household,
R/o. Gaur, Taluka Nilanga,
District Latur.
3. Sow. Jayshree w/o. Shrihari Malwade,
Age 37 years, Occu. Household,
R/o. Mushirabad, District Latur.
4. Mahendra S/o. Raghunath Padile,
Age 59 years, Occu. Agriculture,
R/o. Pune, Taluka and District Pune,
At present R/o. Mushirabad,
Taluka and District Latur. .. Respondents
...
Mr. M. L. Dharashive, Advocate for Appellant
Mr. S. S. Manale, Advocate for Respondents No. 1 to 3
...
CORAM : ANIL S. KILOR, J.
DATE : 17th MARCH, 2021
PER COURT :-
In the present appeal, the Judgment and Decree dated
5th January, 2016, passed by the learned District Judge -3, at Latur,
in Regular Civil Appeal No. 142 of 2011 arising out of the Judgment
2 904-SA-800-16.odt
and Decree dated 13th June, 2011 passed by learned 7 th Civil Judge,
Junior Division, Latur in Regular Civil Suit No. 56 of 2007, allowing
the suit fled by plaintifs for partition and for recovery of
possession.
2. I have heard respective learned counsels for the parties.
3. Brief facts of the present case are as follows. (The
parties are referred as per their status in the suit.)
. It is the case of the plaintifs that the husband of
plaintif No. 1 - Raghunath died on 07-12-2003, and, defendants
No. 1 and 2, who are the brothers of plaintifs No. 2 and 3, have
partitioned their ancestral feld Gat No. 99, between them and
Raghunath, admeasuring 6 Acre 35 Gunthe and Gat No. 39
admeasuring 6 Hector 8 Aar situated at village Mushirabad, Taluka
Latur and house property Grampanchayat No. 110 at Mushirabad.
. It is case of the plaintifs that defendants No. 1 and 2
obtained a consent decree of partition in Regular Civil Suit No. 24 of
1980, wherein, 7 Acre 20 Guntha land of Gat No. 39 towards East
was allotted to the share of Raghunath, whereas, Western side 7
Acre 21 Guntha land was allotted to the defendant No. 1. The
defendant No. 2 was given Gat No. 99 and house property to the
extent of one room and remaining open space was allotted to the
share of Raghunath and the defendant No. 1. The defendant No. 2
sold one room to Raghunath in May-1980.
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. It is the case of the plaintifs that defendants No. 1 and
2 are illegally possessing the share of Raghunath in Gat No. 39 and,
therefore, the suit for possession of that share was fled and also
prayed for 3/8th share in the suit house and demanded partition of
it.
. The defendant No. 1 fled his written statement and
admitted partition taking place orally in June-1979, however, he
stated in the written statement that he was minor on the date of
partition and his interest was not properly protected.
. The defendant No. 2 also fled his written statement and
admitted the fact as regards partition and consent decree passed in
Regular Civil Suit No. 24 of 1980.
. The learned trial Court, after scrutinizing the oral as well
as documentary evidence, decreed the suit in favour of the plaintifs
vide Judgment and Decree, dated 13-06-2011, which came to be
challenged at the behest of defendant no. 1 in Appeal. The said
Appeal came to be dismissed vide impugned Judgment and Decree
dated 05-01-2016.
4. The learned counsel for the appellants submits that in
the partition recorded in Regular Civil Suit No. 24 of 1980 between
Raghunath and the defendants, Eastern portion of land Gut No. 39
to the extent of 7 Acre 20 Guntha was allotted to Raghunath,
whereas, Western portion of land to the extent of 7 Acre 21 Guntha
was allotted to defendant No. 1.
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5. It is submitted that Raghunath, without having any legal
authority, sold out the share of the defendant No.1 and, therefore,
now the portion in which plaintifs are claiming share by way of
partition belongs to the defendant No. 1, and therefore, both the
Courts below have committed error in decreeing the suit.
6. It is submitted that the trial court allowed the suit
without looking at the prayers. It is submitted that the suit was only
for possession and not for partition and, however, the court has, by
decreeing the suit, granted decree of partition.
7. Per contra, learned counsels appearing for the plaintifs
and the respondent No. 4 support the concurrent fndings given by
the Courts below and submit that defendant no.1 never challenged
sale deed executed by Raghunath of the land allotted to the
defendant no. 1 in Regular Civil Suit No. 24 of 1980 and now he has
no right to raise any challenge to the validity of said transfer.
8. To consider the rival contentions of the parties, I have
perused the record and gone through both the Judgments.
9. There is no dispute that the father of defendants
Raghunath and defendants had partitioned the property in Regular
Civil Suit No. 24 of 1980, wherein the defendant No. 1 received
Western portion of Gat No. 39 to the extent of 7 A 21 G. Though, it
is the case of defendant No. 1 that he was 15 years old when
partition was executed and his share was alienated to third person
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by Raghunath contrary to his interest, however, the defendant no.1
was not minor on the date of sale deed executed by Raghunath.
Moreover, he did not raise challenge to the sale deed in respect of
his share.
10. In view of that, now defendant No. 1 cannot raise any
challenge to the sale deed or he cannot ask for any relief such as
declaration that the defendant no. 1 is the owner of Eastern portion
of land Gat no. 39, because Raghunath had sold out his share in the
said land without his permission. In the circumstances, the frst
contention of the appellant cannot be accepted and the same is
rejected.
11. As far as contention of the appellant that the suit is only
for possession and it was not for partition and in spite of the said
fact, the court has granted the decree of partition. The same also
required to be rejected as both the Courts have given reasons for
granting decree of partition. Thus, I do not fnd any substantial
question of law is involved in the present appeal. Accordingly, the
second appeal is dismissed.
12. In the light of disposal of second appeal, nothing further
survives for consideration in the application for stay, the same
stands disposed of, accordingly.
( ANIL S. KILOR )
JUDGE
rrd
