Ramchandra Dhondiba Patil vs Baburao Dhondiba Patil ()
2022 Latest Caselaw 11530 Bom

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                                                           9.SA.564.2018.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              APPELLATE SIDE CIVIL JURISDICTION

                  SECOND APPEAL NO. 564 OF 2018
                               WITH
                CIVIL APPLICATION NO. 1300 OF 2018
                                IN
                  SECOND APPEAL NO. 564 OF 2018

Ramchandra Dhondiba Patil                          ....APPELLANT
    V/S
Baburao Dhondiba Patil & Ors.                      ....RESPONDENTS

Mr. Shrishailya S. Deshmukh for the appellant.
Ms. Jaya Bagwe a/w. Adv. Anchita Nair for respondent no. 1


                            CORAM : NITIN W. SAMBRE, J.

DATED : 14th NOVEMBER, 2022 P.C.:

1. Heard Mr. Deshmukh, learned counsel for the

appellant/original defendant no. 1. The challenge in the appeal is

to the judgment delivered by First Appellate Court whereby the

suit claim for partition and separate possession came to be

decreed thereby granting share to the extent of 9/42nd in the suit

property described in plaint para 1A.

2. The contentions of Mr. Deshmukh, learned counsel for the

appellant are, the evidence of the defendant no. 4-Hirubai mother

of the parties to the suit recorded in the earlier suit for injunction

being RCS No. 1162 of 2001 i.e. Exhibit-124 is ignored by the

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Appellate Court in absence of any legal reason.

3. His further contentions are, the existence of oral partition is

justified based on the mutation effected in the revenue records,

which the Appellate Court has failed to appreciate and as such,

there is error of judgment.

4. Learned counsel for the respondents, would support the

judgment impugned.

5. I have appreciated the said submissions.

6. The parties hereto are claiming through common ancestor -

Dhondiba who was married to Hirubai.

7. After the death of the Dhondiba, the appellant-Karta

approached the revenue authorities and applied for recording

names of each of the legal heirs of Dhondiba. Accordingly 1/4th

share recorded in the name of each of the legal heirs of Dhondiba.

8. Forming the same to be the basis and the admission given

by the defendant no. 4-Hirubai, mother of the parties to the suit in

RCS No. 1162 of 2001, the claim is sought to be substantiated.

9. As far as the cross-examination of the defendant no. 4 in RCS

No. 1162 of 2001 is concerned, though the same was relied on by

the appellant, however, it was expected of the appellant to

confront about the said cross-examination with the witnesses

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including that of Hirubai, which he has failed to. The law

contemplates that if the evidence recorded in other proceedings is

to be relied on, then such evidence is required to be produced and

confronted with.

10. In that view of the matter, reliance placed by the appellant

on the evidence/cross examination of the defendant no. 4-Hirubai

recorded in RCS No. 1162 of 2001 even it is produced, is of hardly

any significance and cannot be taken into account in the present

proceedings for want of putting it to the witnesses.

11. As regards, theory of oral partition is concerned, admittedly

appellant was the Karta of the family. After the death of

Dhondiba, the common ancestor, the appellant approached the

revenue authorities and recorded names of legal heirs of Dhondiba

stating therein that there are 1/4th share to each of them.

However, the said recording of the names in the revenue entry in

the capacity of the legal heirs of deceased-Dhondiba cannot be

termed as proven fact of oral partition unless such partition is

effected by metes and bounds which was based on agreed

partition. Apart from above, the properties A1, A2 and A11 were

never subjected to the partition. The appellant-Karta came out

with plea of acquisition of the part of the suit property to be self

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acquired, for which onus is on the appellant to prove the same,

which he has failed to.

12. In this background, the view expressed by the First Appellate

Court appears to be quite just and proper and after appreciation of

entire pleading, evidence on record.

13. In this background, second appeal sans any question of law.

The same fails and stands dismissed.

14. Pending applications also stands disposed of.

Digitally signed ANANT by ANANT KRISHNA NAIK KRISHNA Date:

NAIK    2022.11.17
          11:32:35 +0530




                                                              (NITIN W. SAMBRE, J.)




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