Tukaram Nivrutti Dagale vs Devram Nivrutti Dagale
2023 Latest Caselaw 12365 Bom

Citation : 2023 Latest Caselaw 12365 Bom
Judgement Date : 7 December, 2023

Bombay High Court

Tukaram Nivrutti Dagale vs Devram Nivrutti Dagale on 7 December, 2023

Author: S.G. Mehare

Bench: S.G. Mehare

                                                            8-sa-426-2023.odt
                                     (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                   SECOND APPEAL NO. 426 OF 2023

          TUKARAM NIVRUTTI DAGALE AND OTHERS
                         VERSUS
            DEVRAM NIVRUTTI DAGALE AND OTHERS

            Advocate for Appellants : Mr. A.T. Kanawade
         Advocate for Respondent No.1 : Mr. R.D. Bhalerao
        Advocate for Respondent No.2 & 3-A : Mr. V.S. Undre
                                ...
                                     CORAM : S.G. MEHARE, J.

DATED : DECEMBER 07, 2023

PER COURT:-

1. Heard learned counsel for the appellants and learned

counsel for the respondents.

2. The real son - Devram had filed the suit for partition of

in all eight properties against the father, real mother, step brothers

and step mother.

3. The appellants are the step sons of respondent no.1-

Nivrutti. It is reported that Nivrutti has also filed an appeal against

the impugned judgment and decree with an application for

condonation of delay. It is yet to be registered. It is simply filed.

Hence, there is no question of circulation. Learned counsel for the

contesting plaintiff has appeared.

4. The Court of first instance held that the plaintiff has

partly proved that the suit properties described in para 1 of the plaint 8-sa-426-2023.odt

are ancestral, undivided joint Hindu family and declared that the

plaintiff and defendant Nos. 1 to 6 are entitled to 1/3rd share each in

survey no.394/2. In other words, learned Court of first instance held

that out of eight suit properties, only survey no.394/2 was for

partition. Against the said judgment and decree, the plaintiff had

preferred the first appeal. The First Appellate Court held that the

partition effected previously between defendant nos.1 to 5 pertaining

to all suit properties is not binding on the plaintiff. He declared that

the plaintiff is entitled to 1/2 share in all suit properties and

respondent no.1 - Nivrutti is entitled to remaining 1/2 share. Against

the said judgment, the step sons are before the Court.

5. Learned counsel for the appellants would submit that

there are contradictory findings as regards the nature of the suit

properties. The Trial Court held that only survey no.394/2 is the

ancestral property. Hence, it is divisible. However, the learned Court

of first instance reversed the judgment of the Court of first instance

and held that the plaintiff is entitled to share in all suit properties.

Learned counsel for the appellants would submit that the judgment

and decree of the First Appellate Court is erroneous on the face of

record. The evidence has not been correctly appreciated. There were

admissions of the plaintiff that the remaining properties except survey

no.394/2 were self acquired. However, the Court did not consider

this material fact and passed an erroneous judgment. He would 8-sa-426-2023.odt

submit that the following substantial questions of law are involved in

the appeal :

(i) Does the plaintiff prove that the suit properties described

and mentioned in the plaint are ancestral properties ?

(ii) On whom the burden lies to prove the nature of the

properties ?

(iii) Whether the partition effected previously between

defendant nos.1 to 5 is not binding on the plaintiff ?

(iv) Does plaintiff prove that he was entitled to 1/2 share in

all the suit properties ?

6. Learned counsel for the plaintiff would submit that the

burden to prove that the remaining suit properties were self acquired,

was on the defendants. They did not discharge the said burden. So,

the learned Appellate Court has correctly observed that the plaintiff is

entitled to share in all the suit properties. There are no substantial

questions of law involved in the appeal. Hence, he prayed to dismiss

the appeal at the admission stage.

7. This Court has discussed the findings recorded by two

Courts. The nature of the properties, the effect of the earlier

partition, the burden of proof and the extent of share appears the

substantial questions of law involved in the case. The Court is

satisfied that the substantial questions of law have been involved in 8-sa-426-2023.odt

the appeal. Hence, following substantial questions of law have been

formulated :

(I) Does plaintiff prove that all suit properties were

ancestral?

(II) Does plaintiff prove that the previous partition effected

between defendant nos.1 to 5 was not binding on him ?

(III) Does plaintiff prove that he is entitled to 1/2 share ?

(IV) On whom the burden lies to prove the nature of the

properties ?