Pralhad Trimbak Langar And Anr vs Vijaymala Rajendra Langar And Ors
2021 Latest Caselaw 13528 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           SECOND APPEAL NO.140 OF 2019


                   PRALHAD TRIMBAK LANGAR AND ANOTHER
                                     VERSUS
                  VIJAYMALA RAJENDRA LANGAR AND OTHERS
                                         ...
                   Mr. Amit S. Deshpande, Advocate for applicants
      Mr. M.L. Dharashive, Advocate for respondent Nos.1 to 5 - absent
               Mr. R.B. Dhaware, Advocate for the respondent No.6
                                         ...

                                   CORAM :     SMT. VIBHA KANKANWADI, J.
                                   RESERVED ON        : 06th SEPTEMBER, 2021.
                                   PRONOUNCED ON : 21st SEPTEMBER, 2021.


ORDER :

1 Present Second Appeal has been filed by the original plaintiffs to

challenge the Judgment and Decree passed by the First Appellate Court, by

which the appeal filed by the present respondents-original defendants came

to be allowed and the suit filed by the present appellants came to be

dismissed, by reversing the Decree passed by the learned Trial Judge.

2 The present appellants-original plaintiffs filed Regular Civil Suit

No.228/2001 before Civil Judge Junior Division, Ausa, Dist. Latur for

2 SA_140_2019

partition and separate possession. The learned Trial Judge held that the

plaintiffs had proved that they have share in the suit properties to the extent

of 1/3rd each. It was also held that the defendant No.1 has failed to prove

that the partition has taken place in between her and the plaintiff Nos.1 and

2 on Gudi Padwa of 1995. It was further held that the defendant No.1 has

failed to prove that in pursuant to the said partition shares were allotted to

plaintiff No.1, 2 and herself. It was then held that the defendant No.6 has

proved that by virtue of registered sale deed dated 05.05.1995 she became

owner and occupier of 01 H 60 R land out of Gat No.247. She is the bona

fide purchaser for value without notice. Plaintiffs and other defendants have

obstructed her peaceful possession and, therefore, the defendant No.6 is

entitled to get relief prayed. Thus, the suit came to be decreed and it was

held that the plaintiffs are entitled to get their 1/3 rd share each separated in

the suit property. The defendants were having jointly 1/3 rd share. It was

directed to the revenue officer that at the time of effecting partition land

admeasuring 1 Acre 20 Gunthas from Gat No.247 be given to the share of

defendant Nos.1 to 5, which is purchased by defendant No.6 as the defendant

No.6 has been held to be the owner and possessor of that property and the

plaintiffs and defendant Nos.1 to 5 were perpetually restrained from causing

obstruction to the possession of the defendant No.6 over the suit land

without due procedure of law.

                                        3                                       SA_140_2019



3              The original defendant Nos.1 to 5 then approached the District

Court, Latur by filing Regular Civil Appeal No.318/2012. It was heard by

learned District Judge-4 and was allowed, thereby dismissing the suit of the

plaintiffs on 18.04.2015. Hence, present Second Appeal.

4 Heard learned Advocate Mr. Amit S. Deshpande for appellants

and learned Advocate Mr. R.B. Dhaware for the respondent No.6. Learned

Advocate Mr. M.L. Dharashive for respondent No.1 to 5 was absent.

5 At the outset, it is to be noted that there is no concurrent

Judgment by the Courts below. On the same set of facts and evidence, both

the Courts have given contrary findings. The plaintiffs and defendants are

the heirs of one Trimbak. Plaintiff No.2 is the widow of Trimbak. Trimbak

expired about 27 years prior to the suit. Trimbak and plaintiff No.2 had two

sons viz. Rajendra and Pralhad. Pralhad being plaintiff No.1. Rajendra

expired in the year 1994, who is then survived by his widow-defendant No.2

and children defendant Nos.3 to 5. The previous partition is stated to be

between Rajendra and uncle. That means, brother of Trimbak and in that

partition properties were allotted to Rajendra. Now, the question is, unless it

would have been the ancestral or joint family property of uncle and Trimbak,

Rajendra would not have got share in the same. Now, the submissions on

behalf of the plaintiffs are that Rajendra represented the entire family in that

4 SA_140_2019

partition and received the property for the family. The defendants are

contending that then there was oral partition between plaintiffs and

defendants in the year 1995. That means, it is the second partition, that is,

coming in picture. It is the contention of the learned Advocate for the

appellants that in order to prove that partition of 1995 the defendants have

not stated, as to which share was given to whom. It cannot be said that the

entire property would have gone to the share of Rajendra or his heirs. When

the particulars of that partition, which had allegedly taken place in the year

1995, has not been given the assessment of the evidence by the First

Appellate Court, it appears to be perverse.

6 Though the learned Advocate for respondent No.6-original

defendant No.6 was present, he submitted that the relief that was granted to

defendant No.6 by the Trial Judge has not been disturbed by the First

Appellate Court and, therefore, that part of the decree has achieved finality.

The defendant No.6 is the bona fide purchaser for value without notice.

7 There appears to be substance in the submission on behalf of the

respondent No.6. The controversy would be limited to the dispute between

the original plaintiffs and defendant Nos.1 to 5. When the Trial Judge holds

that the defendant No.1 failed to prove the previous partition, how on the

same set of facts and evidence the First Appellate Court has come to the

5 SA_140_2019

contrary decision, is definitely required to be gone into. The details appears

to be apparently missing and even the mother is not supporting the case of

the daughter-in-law and grand children that there was a partition between

them all. Hence, definitely case is made out to admit the Second Appeal and

to see whether the approach of the First Appellate Court was perverse.

Accordingly, the Second Appeal stands admitted. Following are the

substantial questions of law.

1 Whether the First Appellate Court was justified in reversing the findings of the Lower Court that the defendants had proved the oral partition at the time of Gudi Padwa of 1995 ?

2 If the defendant No.1 has failed to prove the previous partition, what would be the share of the plaintiffs in the suit property and whether they are entitled to get it separated ?

8 Issue notice to the respondents. Learned Advocate Mr. R.B.

Dhaware waives notice for the respondent No.6. Learned Advocate for the

respondent Nos.1 to 5 was absent. Hence, issue notice to the respondent

Nos.1 to 5, returnable on 22.01.2022.

9              Call Record and Proceedings.



                                              ( Smt. Vibha Kankanwadi, J. )
Donge