Datta Anant @ Anurath Varpe And Ors vs The State Of Maharashtra Through ...
2022 Latest Caselaw 7152 Bom

                                                    Second Appeal No.174/2022
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.174 OF 2022 WITH
                   CIVIL APPLICATION NO.4836 OF 2022


 Datta Anant @ Anurath Varpe & ors.                  ... APPELLANTS

          VERSUS

 The State of Maharashtra & ors.                     ... RESPONDENTS

                              .......
 Mrs. M.A. Kulkarni, Advocate for appellants
 Mr. S.P. Sonpawale, A.G.P. for respondent No.1 - State
                              .......

                                  CORAM :       R. G. AVACHAT, J.

                                  DATE   :      26th JULY, 2022.
 PER COURT :

Heard Mrs. Kulkarni, learned counsel for the

appellants. It is a case of concurrent findings of facts. It was

the suit (Regular Civil Suit No.338/2014) filed by children and

wife of the respondent No.3 herein (original defendant No.3)

for partition and separate possession of agricultural land Gut

No.397, admeasuring 1 Hector 9 R. Relief of declaration was

also sought to the effect that the sale deed executed by the

respondent No.3 herein (original defendant No.3) in favour of

respondent No.2 (original defendant No.2) is not binding on

shares of the plaintiffs (appellants herein).

Second Appeal No.174/2022 :: 2 ::

2. The main contention of the appellants/ plaintiffs is

that, the suit land is ancestral/ joint family property. The

respondent No.3 did not have authority to sell the same in its

entirety, affecting the right, title and interest of the

appellants/ plaintiffs. The trial Court dismissed the suit

holding the appellants/ plaintiffs to have failed to prove the

suit land to be ancestral/ joint family property.

3. The first appellate Court confirmed the said finding

of fact. It also found that the suit was collusive between the

appellants on one hand and the respondent No.3 on the other.

4. According to learned counsel for the appellants

herein, an application under Order 41 Rule 27 of the Code of

Civil Procedure was moved, seeking production of certified

copy of Mutation Entry No.165 to prove that the suit land was

ancestral/ joint family property. The first appellate Court

rejected the said application. According to learned counsel,

the substantial question of law, therefore, arises in this appeal

to the effect that, "When the appellants/ plaintiffs were

entitled to adduce additional evidence in view of Order 41

Rule 27 of the Code of Civil Procedure, whether the first

appellate Court was justified in dismissing the appeal with

rejection of the said application ?".

Second Appeal No.174/2022 :: 3 ::

5. After having perused the judgment of the trial

Court and that of the first appellate Court, and in view of the

facts and circumstances of the case, this Court finds that no

substantial question of law arises in this Second Appeal. It

was a collusive suit between the appellants on one hand and

the respondent No.3 on the other. The respondent No.2 is

none other than the head of one of the Schemes/ Department

of the State of Maharashtra (respondent No.1). In short, he

was the head of Integrated Tribal Development Project. He

i.e. the State Government purchased the suit land way back in

2009 from the respondent No.3 for valuable consideration of

Rs.1,83,000/-. The land was purchased for public purpose.

Five years thereafter the appellants filed the suit claiming to

have right, title and interest in the land sold to the respondent

No.2. The respondent No.3 did not contest the suit.

Admittedly, the appellants/ plaintiffs, except their oral

evidence, did not adduce any evidence in proof of the suit

land to be ancestral/ joint family property.

6. The ancestral property means a property inherited

by a male Hindu from his father, father's father or father's

father's father. The property acquired out of the joint family

funds or from income from the ancestral property partakes

Second Appeal No.174/2022 :: 4 ::

character of a joint family property. The property which is

thrown into common stock (blending) also becomes a joint

family property.

7. Although the first appellate Court did not allow the

production of Mutation Entry No.165, it read it in evidence.

Without accepting/ admitting the claim of the appellants for

production of the said mutation entry, only for the sake of

satisfaction of the learned counsel for the appellants herein,

if one reads the said mutation entry, it is revealed therefrom

that Laxman, father of the respondent No.3 effected partition

of the land Gut No.397 among his six sons including the

respondent No.3 herein. It is not evident from the said

mutation entry whether the land Gut No.397 was the joint

family property of Laxman and his six sons or was it their

ancestral property. It was submitted by the learned counsel

that the land Gut No.397 belonged to Laxman. If Laxman was

exclusive owner thereof and he effected partition of the said

land among his six sons, the sons would become absolute

owners of the land that came to their share. It is, therefore,

just difficult to infer the Mutation Entry No.165 is an evidence

of the land Gut No.397 to be either ancestral or the joint

family property of the appellants and the respondent No.3.

These observations have been made only to address the

Second Appeal No.174/2022 :: 5 ::

submissions made by the learned counsel. It is reiterated

that, both the Courts below have given a concurrent finding of

fact. It was a collusive suit. Mutation Entry No.165 would not

be of any assistance to the appellants herein. As such, no

substantial question of law does arise in this Second Appeal.

The Second Appeal fails. It is dismissed. Consequently, Civil

Application also stands dismissed.

( R. G. AVACHAT ) JUDGE

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