Manjoor Ahemad Mohhammad Umar ... vs Jamil Ahemad Ladlesaheb Umar ...
2022 Latest Caselaw 5421 Bom

                                                    Second Appeal No.453/2013
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                 SECOND APPEAL NO.453 OF 2013 WITH
               CIVIL APPLICATION NO.8631 OF 2013 WITH
                  CIVIL APPLICATION NO.3637 OF 2021


 Manjoor Ahemad Mohammad
 Umar Morve and others                               ... APPELLANTS

          VERSUS

 Jamil Ahemad Ladlesaheb
 Umar Morve, Expired, through L.Rs.
 Niyamatbee Jamil Ahemad Morve
 and others                                          ... RESPONDENTS

                                .......
 Shri   V.D. Salunke, Advocate for appellants
 Shri   A.T. Kanwade, Advocate with
 Shri   A.K. Athaani, Advocate for R.No.1-A to 1-G, 2-A to 2-H,
 3 to   5
 Shri   R.N. Dhorde, Senior Counsel with
 Shri   A.S. More, Advocate for R.No.6-A to 6-E
                                .......

                                  CORAM :       R. G. AVACHAT, J.
                                  DATE   :      15th JUNE, 2022.
 ORDER :

This Second Appeal has been preferred by the

original plaintiffs in Regular civil Suit No.151/1999. Their suit

for partition and separate possession of the agricultural lands

described in the plaint was dismissed by the trial Court. The

plaintiffs, therefore, preferred first appeal, being Regular Civil

Appeal No.264/2012. The first appellate Court, vide its

Second Appeal No.453/2013 :: 2 ::

judgment and order dated 15/1/2013, dismissed the appeal.

As such, the appellants/ plaintiffs have suffered concurrent

findings of facts recorded by both the courts below.

2. In short, the case of the appellants/ plaintiffs is

that, the appellants/ plaintiffs are brothers inter-se. The

respondents/ defendants are the cousins of the plaintiffs. A

partition of family/ joint properties took place way back on

28/3/1961. The father of the appellants/ plaintiffs was party

to the said document. A memorandum of partition was

executed between the parties. Since the suit lands were of

inferior quality, the respondents/ defendants had agreed to

pay a sum of Rs.1000/- to the father of the appellants/

plaintiffs. A sum of Rs.500/- was paid. While the

memorandum of partition was executed, the balance amount

was agreed to be paid at the time of festival of Sati (Kharif

crop). It is the specific case of appellants/ plaintiffs that if the

amount was not paid, it was agreed between the parties to

the document that the lands were to be treated as joint

properties. Meaning thereby, no partition shall be deemed to

have been effected in respect of the suit lands. It is the case

of the appellants/ plaintiffs that since the respondents/

defendants did not pay the balance amount, the suit lands

Second Appeal No.453/2013 :: 3 ::

remained joint. The suit for partition thus came to be filed.

Both the courts below have negatived the contentions of the

appellants/ plaintiffs.

3. Shri V.D. Salunke, learned counsel for the

appellants/ plaintiffs would submit that, both the courts below

did not consider the evidence on record. What has been

considered by the courts below was not part of the evidence.

The learned counsel meant to say that, both the courts below

have negatived the contentions of the appellants/ plaintiffs on

surmises and conjectures. The learned counsel first took this

Court through the judgment of the trial Court, particularly the

Issue No.2-A. According to learned counsel, the trial Court

has not discussed the evidence on this issue and gave its

findings merely on conjectures. According to learned counsel,

an application (Exh.190) was preferred to the revenue

authorities by the defendant No.1 in June 1986 for recording

the names in revenue record in terms of the memorandum of

partition. The learned counsel meant to say that, since the

balance amount of Rs.500/- was not paid, the parties in fact

did not act upon the document, and the suit lands continued

to have been jointly held. According to learned counsel, the

burden of proof to prove that the amount was paid did rest

Second Appeal No.453/2013 :: 4 ::

upon the respondents/ defendants. He would further submit

that, the trial Court observed that since the appellants/

plaintiffs did not make demand of the balance amount, the

Court assumed the same to have been paid. Such an

inference was beyond the averments in the pleadings.

According to learned counsel, the first appellate Court did not

frame a point in consonance with the Issue No.2-A framed by

the trial Court. Since there was no evidence forthcoming

indicating the payment of balance amount of Rs.500/-, the

suit ought to have been decreed. The learned counsel has

placed on record 7 substantial questions of law, which

according to him, crop up in this Second Appeal for being

answered. He, therefore, urged for admission of the appeal.

4. Shri R.N. Dhorde, learned Senior Counsel would,

on the other hand, submit that, both the courts below have

given concurrent findings of fact. No substantial question of

law did arise in this appeal. He, therefore, urged for dismissal

of the appeal at admission stage itself.

5. Considered the submissions advanced. Perused

the judgments delivered by both the courts below. Gone

through the evidence and the documents relied. The

appellants/ plaintiffs are the brothers inter-se. The

Second Appeal No.453/2013 :: 5 ::

respondents/ defendants are the cousins of the appellants.

Admittedly, a partition of the family/ joint property took place

way back on 28/3/1961 between the father of the appellants/

plaintiffs on one hand and the respondents/ defendants on the

other. I have carefully gone through the said document to

find a clause therein that, all the joint properties have been

partitioned by metes and bounds.

6. The respondents/ defendants agreed to pay the

appellants/ plaintiffs' father a sum of Rs.1000/-. A sum of

Rs.500/- was paid at the time memorandum of partition was

executed. The balance amount was agreed to be paid by the

time of festival of Sati. Admittedly, there is no clause in the

memorandum of partition that if the balance amount of

Rs.500/- was not paid the partition is deemed to have not

been effected. Admittedly, the effect of partition has been

given in the revenue record except in respect of the suit

lands. Application (Exh.190) was moved by the respondents/

defendants for giving effect of the partition in the revenue

record in respect of the suit lands in the year 1986. The

learned counsel, therefore, meant to say that, since

admittedly the amount was not paid, the suit lands continued

to be jointly held. There is, however, evidence on record to

Second Appeal No.453/2013 :: 6 ::

indicate that, in the return submitted under Land Ceiling Act,

the parties have shown the lands comprised in the

memorandum of partition as their separate lands. The same

is in terms of the memorandum of the partition. There is no

iota of evidence to indicate that there was an oral

understanding between the parties that if the amount of

Rs.500/- was not paid, the suit lands shall be deemed to have

continued to be joint properties.

7. The father of the appellants/ plaintiffs survived for

six years post execution of the memorandum of partition.

There is nothing to indicate him to have ever made a demand

for the balance amount. His sons- appellants/ plaintiffs also

appear to have kept mum for over 30 years i.e. until filing of

the suit in 1999. The appellant/ plaintiff No.2 Maksud

Ahemad has given a vital admission in cross-examination.

The same is reproduced below in verbatim :-

"हे महणणे खरे आहे की, पैसे ममळाले महणून माझया वडडलांनी कायदेशीर कायर वाही प. वादीवर केलेली नाही."

8. In view of this Court, both the courts below have

given correct concurrent findings of fact/s. No substantial

Second Appeal No.453/2013 :: 7 ::

question of law as have been suggested by the learned

counsel for the appellants do arise in this Second Appeal. The

Second Appeal is, therefore, liable to be dismissed. The same

is, therefore, dismissed. Consequently, Civil Applications are

dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-