Bombay High Court
Ashok Gajanan Gujar vs Smt. Ashadevi Shripatrao Gujar Thr. ... on 7 December, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:36738
34-sa-300-2021.doc
Nikita
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 300 OF 2021
Ashok Ganajan Gujar ... Appellant
NIKITA
V/s.
KAILAS
DARADE Ashadevi Shripatrao Gujar Thr. Power of
Digitally signed by
NIKITA KAILAS
DARADE
Date: 2023.12.08
Attorney Nandkishor Shripatrao Gujar
14:15:48 +0530
and Ors. ... Respondents
WITH
INTERIM APPLICATION NO.2101 OF 2021
Ashok Gajanan Gujar ... Applicant
V/s.
Ashadevi Shripatrao Gujar Thr. Power of
Attorney Nandkishor Shripatrao Gujar ... Respondent
Mr. Ashok B. Tajane, i/b Balaji P. Shinde for the
Appellant-Applicant.
Mr. Sandeep S. Koregave a/w Pallavi Karanjkar for
Respondent Nos. 2B & 5.
Ms. Rekha Musale for Respondent Nos. 4 and 4.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 7, 2023
P.C.:
1. The appellant is original defendant against whom, the
respondent Nos. 1 and 3 had filed suit for declaration, possession
and permanent injunction. According to the plaintiffs, suit
properties were allotted in partition to father-in-law of plaintiff
No.1 in 1937. Accordingly name of her father-in-law Mahadev was
entered in revenue records. However, after the death of Mahadev
34-sa-300-2021.doc
and Gajanan, defendants entered their name in city survey record.
According to plaintiffs, Gajanan fabricated Will of Mahadev in
relation to suit properties.
2. Defendants contested the suit by contending that Mahadev
executed Will in their favour bequeathing half share in the suit
property to their father and they have become owner of half share
of the suit property. Objection regarding valuation of the suit was
also raised.
3. The Trial Court based on pleadings of the parties framed
necessary issue including title of Mahadev Gujar, validity of Will
of Mahadev and issue of injunction.
4. The Trial Court decreed the suit. The Appellate Court
dismissed the appeal.
5. The learned advocate for the appellant submitted that the
Courts below recorded a finding that Mahadev received suit
properties in partition is perverse in as much as there is no
evidence in support of such finding. However, on perusal of
judgment of Court's below, it appears that Courts below recorded a
finding of allotment of suit property in partition in favour of
Mahadev based on entries recorded in enquiry registered on 13 th
April 1939 and copy of "Malmatta Patrak" which demonstrates
allotment of suit properties based on partition. Therefore, findings
of facts recorded by the Courts below holding that the suit
properties were allotted in favour of Mahadev is based on
admissible evidence.
6. The learned advocate for the appellant, thereafter, contended
34-sa-300-2021.doc
that Mahadev executed a Will in favour of father of defendants
which the Courts below failed to consider in its proper perspective.
However on perusal of the judgments, it appears that the
defendants failed to prove Will as required under Section 68 of
the Evidence Act, 1872 by examining attesting witnesses. In the
absence of proof of document, which is required to be
compulsorily attested, findings recorded by the Courts below that
Will is not proved does not suffer from legal infirmity.
7. Learned advocate for the appellant next contended that the
suit filed by the plaintiff is barred by limitation. On perusal of
judgments of the Courts below, it appears that the Courts below
rightly referred to Article 65 of the Limitation Act, 1963. As per
article 65 limitation for suit for possession would start from the
date when possession becomes adverse. However, the defendants
have not proved as to when defendant's possession became
adverse which can be said to be event of starting period of
limitation.
8. The learned advocate for the appellant lastly contended that
Clause 3 of the operative part of Appellate Court's judgment
amounts to modification of decree which is impermissible.
However, on perusal of paragraph No. 40 of the Appellate Court's
judgment, it appears that pursis below Exhibit-64 was filed by the
parties after referring the compromise. Based on such compromise,
the right conferred on Respondent No.5 has been recognized by
the Appellate Court shall have no effect of modifying decree for
partition or injunction as granted by the Trial Court. Only
intervention made by the Appellate Court is to confer right on
34-sa-300-2021.doc
respondent No.2 and 5, to execute decree in respect of their
respective share in the respective parties. Based on compromise
Below Exhibit-64. Such conferment of right is permissible under
order 22 Rule 10 of Code of Civil Procedure, 1908, wherein,
persons in whose favour, rights in immovable properties are
devolved are entitled to be substituted. It is well settled that
assignment of rights during pendency of appeal creates right in
favour of assignees to apply to implead this as part to the
proceedings as if they are legal representatives of dead person or
beneficiaries of Will.
9. For the aforesaid reasons, no substantial question of law is
involved.
10. The second appeal is dismissed. No costs.
11. In view of dismissal of second appeal, interim application
does not survive. And the same stand disposed of as infructuous.
(AMIT BORKAR, J.)
