Ratnakar Eknath Surale vs Prabhakar Eknath Surale And ...
2022 Latest Caselaw 2822 Bom

                                                                   929 sa 163 21.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                           SECOND APPEAL NO. 163 OF 2021
                         WITH CA/11631/2019 IN SA/163/2021

       Ratnakar s/o Eknath Surale,
       Age 70 years, occ. Nil,
       R/o. Gayatri Krupa, Opp. Tridal
       Apartment, Naralibag, Aurangabad,
       District Aurangabad.                         ...     Appellant.
                                                     (Orig. Defendant)
       VERSUS

1)     Prabhakar Eknath Surale,
       Age 67 years, Occ. Service Business,
       R/o. Jaisingpura, S.No. 23, Plot No.
       15, Aurangabad, Permanent
       resident of Ajabanagar, H.No. 5-18-26,
       CTS No. 14220, Nutan Colony,
       Aurangabad.

2)     Sudhakar s/o Eknath Surale,
       Died through legal heirs

2A) Rajmani w/o Sudhakar Surale,
    Age 54 years, occ. Business,
    R/o. Ward No. 71, Deepak Niwas,
    Behind Vijay Travels & STD,
    Shivshankar Colony, Aurangabad.

2B) Rachana d/o Sudhakar Surale,
    Age 36 years, Occ. Education,
    R/o. Ward No. 71, Deepak Niwas,
    Behind Vijay Travels & STD,
    Shivshankar Colony, Aurangabad.

3)     Madhukar s/o Eknath Surale,
       Age 49 years, occ. Business,
       R/o. New Balajinagar,
       Near Flour Mill, Aurangabad.

4)     Sow. Leelabai w/o Eknath Surale,
       deceased (All legal heirs already
       on record) r/o. Nutan Colony,
       Aurangabad.

                                                                                      1/4


     ::: Uploaded on - 25/03/2022                ::: Downloaded on - 26/03/2022 00:27:44 :::
                                                                      929 sa 163 21.odt
5)     Vimal w/o Devias Kotwal,
       Age 61 years, Occ. Household,
       R/o. Kothale's House, Banjara
       Colony, Khokadpura, Aurangabad.

6)     Shamla w/o Devidas Gaikwad (deceased)
       through legal heir daughter
       Hemlata d/o Devidas Gaikwad,
       Age 31 years, Occ. Private Service,
       R/o. Banjara Colony, Khokadpura,
       Aurangabad.

7)     Pramila w/o Maruti Gaikwad,
       Age 59 years, Occ. Household,
       R/o. Tal, Barad Balaji Mens Parlor,
       Near Barad Bus Stand, Dist. Nanded.

8)     Mangla d/o Eknath Surale,
       Age 56 years, Occ. Service,
       R/o. CTS No. 14220, Ajabnagar,
       Nutan Colony, Aurangabad.

9)     Urmila w/o Manoj Arsayye,
       Age 52 years, Occ. Business,
       R/o. CTS No. 14220, Ajabnagar,
       Nutan Colony, Aurangabad.                      ...       Respondents.
                                                            (Orig. plaintiffs )
                                         ...

                 Advocate for the Appellant : Mr. Deshpande Ajay S.
           Advocate for the Respondent Nos. : 1, 2A & 2B, 3, 5 to 9 : Mr. A.D.
                                   Kasliwal.

                              CORAM          : MANGESH S. PATIL, J.

                              DATE           : 23.03.2022.


PER COURT :

This is a second appeal by the original defendant No. 1 aggrieved by the consistent judgments and orders passed by the courts below holding the respondents/plaintiffs entitled to partition and separate possession of one of the two immovable properties and to have a share in the compensation received in respect of acquisition of a portion of that property.

929 sa 163 21.odt

2. Pertinently, both the courts below have concurrently refuted the claim of the respondents that even the suit property from Vaijapur was the joint family property about which even they did not prefer any appeal or file cross objections before the lower appellate court. Resultantly, the only dispute that remains is as to whether the suit property from Aurangabad bearing C.T.S. No. 14220 and the compensation received from acquisition of a portion thereof, is the joint family property.

3. I have heard the learned advocates of both the sides. A halfhearted attempt was made by the appellant and his father who was with him in defending the suit and who was also examined as a witness to prove that apart from the suit properties few other properties were purchased in the individual names of the sharers. Father Eknath has gone to the extent of saying that he had helped each of them financially in acquiring those properties. However, conspicuously, the appellant and his father have not asked for any partition and separate possession of the shares therein. No issue was framed by the trial court and none seem to be insisted for. Even the issue was not wrecked up before the lower appellate court.

4. Consequently, the dispute now remains only in respect of one house property from Aurangabad and the compensation amount.

5. Going by the parameters laid down by the Apex Court in the matter of Narayanan Rajendran And Anr vs Lekshmy Sarojini And Ors ( 2009) 5 SCC 264 there are inherent limitations for this Court in going into the disputed questions of facts while exercising the power under Section 100 of the Code of Civil Procedure, more so, when there are concurrent findings of the two courts below. This Court cannot sit in appeal over the disputed questions of facts. Both the courts below apparently for the plausible reasons reached a concurrent finding that the suit property from Aurangabad bearing C.T.S. No. 14220 and the compensation regarding acquisition of a portion thereof is the joint family property. They have also given plausible reasons for

929 sa 163 21.odt refuting the claim of the appellant that it was acquired from the gifts received by him at the time of his naming ceremony. The courts below have found that there was no sufficient and cogent evidence to justify this stand. No error is committed by them so as to give rise to a substantial question of law.

6. The second appeal is dismissed.

7. The Civil Application is disposed of.

(MANGESH S. PATIL, J.) mkd/-