Bombay High Court
Tukaram Sakharamji Bhalerao vs Pralhadrao Sakharamji Bhalerao ... on 16 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.381 OF 2021
WITH
CIVIL APPLICATION NO.9583 OF 2021
IN SA/381/2021
TUKARAM S/O SAKHARAMJI BHALERAO
VERSUS
PRALHADRAO S/O SAKHARAMJI BHALERAO
AND OTHERS
.....
Advocate for Appellant/Applicant : Mr. D. P. Palodkar
Advocate for Respondent No.1 : Mr. S. B. Ghatol Patil
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 16-09-2021.
ORDER :
1. Present appeal has been filed by the original defendant No.1 to
challenge the concurrent findings and decree passed by the Court
below.
2. Present respondent No.1 is the original plaintiff who filed Regular
Civil Suit No.117 of 2014 for declaration of ownership and recovery of
possession of the suit property. The said suit was entertained and
tried by learned Joint Civil Judge, Senior Division, Parbhani and was
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decreed on 02-04-2019. The original defendant No.1 then
challenged the said Judgment and decree by filing Regular Civil
Appeal No.47 of 2019. It was heard and dismissed by learned
District Judge-4, Parbhani on 21-12-2019. Hence, this second
appeal.
3. Heard learned Advocate Mr. D. P. Palodkar for appellant and
learned Advocate Mr. S. B. Ghatol Patil for respondent No.1.
4. It has been vehemently submitted on behalf of the appellant
that both the Courts below have not considered the evidence
adduced by the defendant No.1 in proper perspective. The plaintiff
had come with a case that he had received the suit property in an
oral partition, however, the suit was for possession of the property
then whether such suit which was the joint family property allegedly
received in an oral partition was maintainable in absence of other
members of the joint family as party defendants. The present
appellant had denied that the suit property had gone to the share of
the plaintiff though admittedly the property was standing in the
name of plaintiff even prior to the alleged partition. Substantial
questions of law are arising in this case as the plaintiff had failed to
prove the oral partition.
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5. Per contra, learned Advocate appearing for the respondent
No.1/original plaintiff supported the reasons given by both the
Courts below and submitted that no substantial questions of law as
framed in the appeal memo are arising for determination. He
prayed for the dismissal of the appeal at the threshold.
6. The story with which the plaintiff had come before the learned
Lower Court is required to be considered in brief. The suit property
and other properties were stated to be the properties purchased by
the father of plaintiff as well as defendant No.1-deceased Sakharam
Kashiram Bhalerao. Sakharam died in the year 2004 and his wife
died in the year 2007 leaving behind three brothers excluding of
plaintiff and defendant No.1 and two sisters who were married about
40 years ago. According to the plaintiff prior to his death deceased
Sakharam had orally partitioned the joint family properties between
the sons at the item of 'Gudhi Padwa' of 2003 in presence of sons
and daughters. He had purchased the properties in the names of
different family members and, therefore, he told that the person in
whose name the property is purchased, would take that property in
partition. The daughters had orally relinquished their share from the
joint family property at that time. It is then contended that since
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properties were standing differently in the name of concerned son,
there was no question of giving effect to the oral partition.
However, the defendant No.1 was residing in the suit property since
prior to the partition. He did not vacate the same after the partition
but requested plaintiff to accommodate him. Thus, plaintiff
contended that the possession of the defendant No.1 over the suit
premises is permissive in nature. It was also contended that the
suit property is standing in the name of plaintiff in the record of
Municipal Corporation as well as City Survey Record. Construction
permission as well as electricity connection is also in his name. He
was paying the taxes in respect of the building to the respective
authorities. The defendant had taken disadvantage of the plaintiff
and allowed defendants No.2 to 4 to occupy the suit property
without consent and permission of plaintiff. Plaintiff issued notices
to respondents No.2 to 4 and asked them to vacate the suit
premises. After the service of the notice, one Shila Deshmukh who
was occupying part of the premises, vacated it and handed over the
possession to the plaintiff. Defendants No.3 and 4 did not respond.
Defendant No.2 replied that he had entered into an agreement to
lease to defendant No.1 and paid rent at the rate of Rs.3500/- per
month to defendant No.1 regularly. Hence, the plaintiff asked for
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the possession of the suit premises from all the defendants.
7. It was the defence of the defendant No.1 that their father was
a rich person and he was having irrigated agricultural lands at village
Ridhora purchased out of nucleus of joint family. Certain lands at
village Aral and Darephal, plot in Parbhani etc. have beee purchased
by him from his own earnings. He denied that there was oral
partition in the family in the year 2003. He admitted the fact that
the agricultural lands from different gut numbers are recorded in the
names of five brothers. Though he accepted the position that the
suit property stands in the name of plaintiff, yet according to him
the consideration has been paid by him. The father had every faith
in him and he being the eldest brother was allowed to purchase the
property in the name of plaintiff. He has incurred expenses in
respect of education, food and clothes of the brothers. He had also
stated that in the year 1979 there was a family arrangement and in
the year 1985 it was decided to construct the house on the plot
which was purchased as per the said family arrangement in the year
1979. He says that all the formalities to construct the house was
completed in the name of plaintiff and he has made the construction.
Loan was obtained by him from Narsimha Housing Co-operative
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Society in the name of plaintiff between 1979 to 2012.
8. After considering the evidence on record, the learned Trial
Judge held that the plaintiff has proved the oral partition that had
taken place in the year 2003 and the suit property was allotted to
the plaintiff. Thus, plaintiff has proved that he is the owner of the
suit property. The possession of the defendant No1 is state to be
illegal and, therefore, the plaintiff is entitled to recover the
possession and also the mesne and profits.
9. As aforesaid, the appeal filed by the present appellant before
the learned District Judge-4, Parbhani, has been dismissed.
10. Perusal of both the impugned Judgments would show that both
the Courts have considered oral as well as documentary evidence in
detail. Admittedly, the suit property stands in the name of plaintiff.
The payment of taxes though it appears that some of the receipts
are with the defendant No.1, they are in the name of plaintiff. The
defence that has been raised by the defendant No.1 appears to be
shaky. At one place he says that there is no oral partition and at
another place he says that there was family settlement in the year
1979. He has not given details of the said family settlement as to
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which property went to whom. He has not given reason for his
contention that he had purchased the suit property in the name of
plaintiff. At one place he says that his father was rich and having
immovable property, then why the father would allow his eldest son
to purchase the property in the name of his other son. Further, if
defendant No.1 had the intention to purchase the property in the
name of plaintiff, yet at the time of construction why all the
documents should be in the name of plaintiff. Therefore, that reason
is absolutely not convincing. In fact, the plaintiff has also produced
documents on record to show that he has repaid loan. In all
probabilities taking into consideration the cross of the defendant
No.1, it supports the averment of the plaintiff that there was oral
partition effected by father at the time of Gudhi Padwa 2003 thereby
allowing the properties which were purchased in the name of each of
the son. It is to be noted that the case of the plaintiff is supported
by another brother PW.2 Madhukar. It was tired to be contended on
behalf of the defendant No.1 that since PW.2 Madhukar had dispute
with defendant No.1, he has supported plaintiff. In fact, those
details of dispute have not come on record, however, even if we
accept that there was such dispute, yet for him both the brothers
are brothers. The details of the property which had gone to the
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share of defendant No.1 have been given by the plaintiff and it has
also come in the cross-examination. Then the question arises as to
how the defendant No.1 would get more property which was the
property of their joint family. A detailed scrutiny of the evidence led
by the parties has been done by both the Courts below and by no
stretch of imagination it can be said to be perverse. When
defendant No.1 has failed to prove that the suit property is still joint
family property, question of other members of the joint family are
not at all necessary parties to the suit. Plaintiff was the exclusive
owner of the suit property. The possession of the defendant No.1
was permissive in nature. He could not have handed over
possession of the part of the premises to defendants No.2 to 4
without the consent of the plaintiff. The plaintiff was entitled to get
the declaration and the decree for possession as directed by the
learned Trial Judge. Hence, no substantial questions of law as
contemplated under Section 100 of the Code of Civil Procedure are
arising in this case requiring admission of the second appeal. The
second appeal deserves to be rejected at the threshold and
accordingly it is dismissed.
11. Perusal of the Judgment of the First Appellate Court would
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show that in fact the said First Appeal was partly allowed in a sense
that there was no disturbance to the decree passed by the learned
Trial Judge but the objection that was raised by the
appellant/original defendant No.1 in respect of Court fee on the
valuation was allowed. The appeal was partly allowed to the extent
of directing the plaintiff to pay Court fee on the valuation of
Rs.45,00,000/-, when in fact it was valued before the learned Trial
Judge at Rs.2,02,000/-. It is to be noted that when inquiry made
with the learned Advocate for respondent No.1, he submitted a
photocopy of the order regarding payment of additional Court fee as
directed by the First Appellate Court and it has been taken on
record. The said Court fees has been paid in Regular Darkhast on
26-03-2019. Under those circumstances, in fact the present
appellant ought to have valued the appeal as it is before the First
Appellate Court, that means on valuation of Rs.45,00,000/-. That
means, Court fee ought to have been paid by the present appellant
on the valuation of Rs.45,00,000/- as was directed in his first
appeal. Yet, present appeal has been valued at Rs.2,0,2000/- and,
therefore, directions are required to be given to the present
appellant to pay the deficit court fees within a period of two months.
Accordingly, the following order is passed.
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ORDER
1) The second appeal stands dismissed at the
threshold.
2) Civil Application No.9583 of 2021 for Stay stands
disposed of in view of dismissal of the second appeal.
3) The appellant is directed to pay court fees on
valuation of Rs.45,00,000/-(forty-five lakh).
4) The deficit Court fee be paid by the appellant with
in a period of two (2) months from today.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
