Bombay High Court
Ganpati Gundappa Biradar vs Ram Gundappa Biradar on 31 October, 2023
Bench: S. G. Mehare
2023:BHC-AUG:23560
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
21 SECOND APPEAL NO.8 OF 2019
WITH CA/8947/2018 IN SA/8/2019
GANPATI GUNDAPPA BIRADAR
VERSUS
RAM GUNDAPPA BIRADAR
...
Advocate for Appellant : Mr. Pathade Vishweshwar H.
...
CORAM : S. G. MEHARE, J.
DATE : 31.10.2023
PER COURT :-
1. Heard the learned counsel for the appellant.
2. The appellant/plaintiff and respondent are brothers.
The admitted facts of the case were that the father of the
plaintiff, defendant and another brother, partitioned the land
during his life time orally. After the oral partition, the three
brothers started enjoying and using their respective shares.
The plaintiff claimed that he has equal share in a Well to fetch
the water, which was situated in the field came to the share of
the defendant.
3. Learned counsel for the appellant vehemently argued
that both Courts did not consider the evidence of witness
Digamber. The consent letter produced on record was also
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doubted illegally. Jointness is the presumption. The defendant's
brother did not rebut the presumption. Considering the
situation, when the lands were partitioned, it is presumed that
the shares in the Well must have also been granted. Hence, the
appellant has right to fetch the water from the Well is a
substantial question of law.
4. Learned counsel for the respondent states that the
plaintiff has admitted in cross-examination that the defendant
has exclusive right over the Well. Admission is the best
evidence. There was nothing before the Court to believe that
the plaintiff had equal share to fetch the water from the Well.
Hence, no substantial questions of law have been involved in
this case.
5. Perused the impugned judgments and decrees. The
plaintiff had candidly admitted in his cross-examination that
the Well in question went to the share of the defendant Ram
Gundappa Biradar. To counter his admission, he had examined
one witness Maruti Gundappa Vishwanath, who had produced
one consent letter about the transfer of share in favour of
plaintiff and defendant for consideration of Rs.5000/-. Both
the Courts have evaluated the evidence and correctly recorded
the findings that the plaintiff had damaged his case to such an
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extent that the defendant is to be believed. It is not the case
that it was a fraudulent admission. It was an admission
procured in the Court of law by his cross-examination. The
evidence which has been produced before the Court has been
correctly appreciated and the conclusions are also in
consonance with the admissions of the plaintiff which
destroyed his case. There is nothing on record to repair the
material admission.
6. In view of the above discussion, the Court is of the view
that no substantial questions of law are involved in this appeal.
7. Hence, second appeal stands dismissed at the admission
stage.
8. Civil Application stands disposed of accordingly.
(S. G. MEHARE, J.)
...
vmk/-
