Bombay High Court
Anusaya Wd/O Tarachand Raut And ... vs State Of Maharashtra Thr. ... on 26 September, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL APPLICATION (CAS) NO. 945 OF 2022
IN
SECOND APPEAL ST. NO. 10417 OF 2022
( Anusaya Wd/o Tarachand Raut & Ors. Vs. State of Maharashtra &
Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. O.W. Gupta, Advocate for the Applicants/Appellants.
Ms. Hemlata Jaipurkar, A.G.P. for the Non-applicant/Respondent 1 to 3/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 26th SEPTEMBER, 2022.
Heard.
2. Civil Application (CAS) No. 945/2022 seeks
condonation of delay of 18 days in filing the Second
Appeal. Considering the reasons given and accepting the
same, the application is allowed.
3. Office to register the Second Appeal.
SECOND APPEAL NO. OF 2022
1. Heard Mr. Gupta, learned counsel for the
appellants/original defendants. The plaintiff/ respondent
had filed the suit RCS No. 98/2012 for declaration,
partition, separate possession, mesne profit and
permanent injunction, in respect of Gat No. 158/1
admeasuring 1.02 HR and 158/4 admeasuring 0.55 HR
of village Sundari, Tah. Sakoli, Dist. Bhandara, claiming
the same to be an ancestral property originally owned by
2 10.CAS.945-2022.odt
one Tukdya and Yeni, who were survived by daughter
Rukhmabai (pg. 45 - Tree). Rukhmabai had two sons
Tarachand and Bhojraj and one daughter, Arvinda.
During her life time, it is claimed that properties left
behind by Tukdya and Yeni came to be orally partitioned
in the year 1988, in which suit the properties are
claimed to have come to the share of Rukhmabai, who
during her life time by two sale deeds dated 6.9.2008
have sold them to Anusuya wd/o Tarachand (Defendant
No.4) and Atul (son of Bhojraj).
2. The learned trial Court by the judgment
dated 11.9.2018 passed in RCS No. 98/2012 held that
there was a partition on 1.8.1988, as a result of which
Rukhmabai had received the above properties, which
partition, according to the learned trial Court was
witnessed by Exh.59, the mutation entry in that regard
dated 2.8.1988 and therefore, it held Rukhmabai to be
the sole owner of the properties fallen to her share in the
aforesaid oral partition, capable of being sold and
therefore, the suit came to be dismissed.
3. The learned Appellate Court though holding
that the partition dt 1.8.1998, in which the land of Gat
Nos. 158/1 and 158/4 came to the share of Rukhmabai
and the land of Gat No. 158/2 came to the share of
Tarachand and that of Gat No. 158/3 came to the share
of Bhojrai was legal and valid, granted a share to the
plaintiff Arvinda, only out of the share of Rukhmabai.
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4. Issue notice to the respondents on the
following substantial question of law.
Whether the plaintiff Arvinda being the
daughter of Rukhmabai had share in the
ancestral properties only to the extent of
the share received by Rukhmabai, in the
partition dated 1.8.1988?
5. The notice is made returnable on 3.10.2022
for final disposal at the stage of admission itself.
6. The appellant to serve the respondents by
all modes permissible in law, including Hamdast.
7. Learned AGP waives notice for respondent
Nos. 1 to 3.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:26.09.2022 18:23
