Bombay High Court
Namdev Ramrao Gaikwad vs Madhav Ramrao Gaikwad on 2 September, 2021
Bench: V. V. Kankanwadi
914-sa-188-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 SECOND APPEAL NO.188 OF 2021
WITH CA/4547/2021
NAMDEV RAMRAO GAIKWAD
VERSUS
MADHAV RAMRAO GAIKWAD
...
Advocate for Appellant : Mr. Shinde Balaji S.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 02.09.2021
ORDER :-
. Heard learned Advocate for the appellant.
2. Learned Advocate Mr. Shrikrushna Solunke made statement on
29.06.2021 that he has instructions to appear for the sole respondent.
He was directed to file Vakalatnama within a period of two weeks,
however, he has not filed it. He is not present. Under such
circumstance, when the second appeal is for admission, submissions on
behalf of the appellant have been heard in order to see whether
substantial questions of law are made out.
3. Present appellant is the original plaintiff, who had filed suit i.e.
Regular Civil Suit No.304 of 2010 for declaration of ownership and
perpetual injunction. He contended that he as well as defendant, who is
914-sa-188-2021.odt
his real brother purchased 81 R land from Survey No.76 situated at
village Bhakaskheda, Tq. Udgir, Dist. Latur for consideration of
Rs.2,50,000/- by way of registered sale deed dated 11.07.2008. It is
stated that it was purchased from their own sister. According to the
plaintiff, later on in the month of March, 2010, there was oral partition
between him and the defendant. 41 R land was allotted to the share of
plaintiff in the said oral partition of which the boundaries have been
given in the plaint and rest of the land was given to the share of
defendant. When he found that the defendant is disturbing his
possession, he filed the suit.
4. Defendant resisted the claim of the plaintiff by filing written
statement. It was accepted that he along with the plaintiff purchased 81
R land from their sister, however, it is then stated that he was the person
who had deposited amount of Rs.300,000/- on 21.08.2008 and
Rs.1,00,000/- on 06.02.2009 in Tata Memorial Center for Rural Caner
Project and Nargis Datt Memorial Cancer Hospital, Barshi for medical
treatment of the sister. According to him, the plaintiff had not
contributed to the medical expenses of the sister and, therefore, he
alone is the owner of the property. There was no question of partition.
5. The suit was decreed. Plaintiff was held to be the owner of land
admeasuring 41 R described in the plaint from Survey No.76/1 and the
914-sa-188-2021.odt
defendant was restrained from disturbing the peaceful possession of the
plaintiff over the suit land.
6. Original defendant challenged the said decree in Regular Civil
Appeal No.31 of 2017 before the learned Ad-hoc District Judge-1, Udgir.
The appeal came to be allowed and the judgment and decree passed by
the learned Lower Court has been quashed and set aside. The suit was
dismissed. It is to be noted from the impugned judgment passed by the
learned first Appellate Court that he had not framed any issue as regards
the ownership over the property is concerned. He has directly taken the
point of oral partition and obstruction. In the discussion, it appears that
no such issue was raised as regards the joint purchase or sale deed in the
name of plaintiff as well as defendant and therefore, in view of the said
sale deed, name of the plaintiff and defendant was mutated in the
revenue record as joint owners. There appears to be no discussion by
the learned first Appellate Court to the claim of the defendant that he
alone is the owner of the property. After holding plaintiff and defendant
as joint owners, the first Appellate Court has come to the conclusion that
plaintiff has failed to prove the partition and then the alleged
obstruction by the defendant.
7. In order to prove the oral partition, the plaintiff had examined
three witnesses. The testimony of those witnesses has been discarded by
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the first Appellate Court. Under such circumstance, when evidence was
led and the Trial Court is considering the same evidence as a proof of
partition, whether it can be discarded by the first Appellate Court on
some flimsy ground, is required to be considered and, therefore, case is
made out to admit the second appeal as it is raising substantial
questions of law as contemplated under Section 100 of the Code of Civil
Procedure. Hence, second appeal stands admitted. Following are the
substantial questions of law :-
I) Whether the first Appellate Court was justified in discarding
the oral evidence of partition between the plaintiff and the
defendant in respect of the suit land Survey No.76 and the claim
of plaintiff that he received 41 R land numbered as Survey
No.76/1 in the said partition?
II) Whether the law expects documentary evidence in respect
of partition and when theory of oral partition is canvassed, then
also something more than oral evidence is expected to be led by
the prepounder of the said theory?
III) Whether the defendant had proved exclusive ownership
over 81 R land in Survey No.76 situated at village Bhakaskheda,
Tq. Udgir, Dist. Latur?
IV) Whether the first Appellate Court was justified in reversing
the judgment and decree passed by the Trial Court?
914-sa-188-2021.odt
8. Issue notice to the respondent, returnable on 11.11.2021.
9. Call record and proceedings.
10. Civil Application No.4547 of 2021 to be heard along with the
second appeal.
[SMT. VIBHA KANKANWADI, J.]
scm
