Bombay High Court
Satling Gurulinga Gavahane Since ... vs Basweshwar Ramchandra Gavhane on 27 August, 2024
2024:BHC-AS:34256
IRESH Digitally signed by
IRESH MASHAL
MASHAL Date: 2024.08.27
18:26:32 +0530
904.358.23 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 358 OF 2023
WITH
INTERIM APPLICATION NO. 698 OF 2021
IN
SECOND APPEAL NO. 358 OF 2023
Satling Gurulingaa Gavahane .....Appellant
Since Deceased through legal
heirs Gurubasu Satling Gavahane
Vs.
Basweshwar Ramchandra Gavhane and ors .....Respondents
Ms. Preeti Walimbe h/f Mr. Bhushan Walimbe for the appellant
Mr. Manoj A. Patil for respondent
CORAM : GAURI GODSE J
CLOSED FOR ORDERS ON: 16th JULY 2024
PRONOUNCED ON: 27th AUGUST 2024
ORDER:
1. This second appeal is preferred by defendants 1 and 2 to
challenge the judgment and decree passed by the first Appellate Court
granting partition and separate possession of the half share to the
plaintiff.
904.358.23 sa.docx
2. Respondent no. 1 ("plaintiff") filed a suit for partition and
separate possession on the ground that the suit properties are
ancestral joint family properties through their common ancestor, who
had two sons, Annappa and Gurulinga. Defendant no. 1 is the son of
Gurulinga, and defendant no. 2 is the wife of defendant no. 1. The
plaintiff is claiming through Annappa. The plaintiff's father, i.e.
Ramappa @ Ramachandra, is Annappa's son. The Dandvade Family
adopted Annappa after the birth of Ramchandra. In spite of Annappa's
adoption, Ramchandra continued in Annappa's biological family, i.e.
Gavhane Family. After Gurulinga's death, defendant no. 1 transferred
the suit property in his wife's name, i.e., defendant no. 2. Hence, the
plaintiff claimed his separate share along with defendant nos. 3 to 11,
i.e. children of Ramchandra. The suit was initially dismissed. Hence,
the plaintiff and defendant nos. 3 to 11 filed the first appeal, which is
allowed granting half share to the plaintiff and defendant nos. 3 to 11
collectively. Hence, defendants nos. 1 and 2 filed this second appeal.
3. Learned counsel for the appellants submitted that the suit was
barred by law of limitation. She submitted that defendants nos. 1 and 2
specifically pleaded ouster in the year 1945. She submitted that by
904.358.23 sa.docx
way of mutation entry no. 1225, defendant no. 1's name was entered
in the suit property way back in the year 1945. She further submitted
that after the suit property was sold to defendant no. 2, her name was
also entered by way of mutation entry no. 358. She further submitted
that the very fact that since the year 1945, the name of defendant no.
1 was entered in the revenue record, it was clear that defendant no. 1
was openly and uninterruptedly in possession, which shows an animus
on the part of defendant no. 1 since the year 1945.
4. Learned counsel for the appellants further submitted that even
assuming that the plaintiff's father continued in Gavhane family, the
cause of action to seek partition would relate back to the year 1945.
She thus submitted that the ouster and animus being since 1945, the
suit seeking partition was clearly barred by law of limitation. Learned
counsel for the appellants relied upon the findings recorded by the
Trial Court to show that till the death of Ramchandra, mutation entries
in favour of defendants nos. 1 and 2 were never challenged. She
referred to the observations by the Trial Court that the plaintiff's
pleadings showed that Ramchandra had purchased various properties,
and the ration card produced on record showed that Ramchandra had
904.358.23 sa.docx
separated from the family. Thus, learned counsel for the appellants
submitted that the Trial Court rightly held that Ramchandra was never
found to have been residing with defendant no. 1 after his father's
adoption. Learned counsel thus submitted that there was no joint
family of Ramchandra and defendant no. 1.
5. Thus, according to the learned counsel for the appellants, in any
case, there was an ouster since the year 1945; hence, Section 115 of
The Indian Evidence Act, 1872, would be applicable. She thus
submitted that the Court's finding on the point of limitation is incorrect.
Learned counsel for the appellants thus submitted that this second
appeal would require consideration of the question of law on the point
that the suit was barred by limitation. Learned counsel for the
appellants to support her submissions relied upon the decision of this
court in the case of Babarao Amburao and Others Vs Baburao Bugaji
and Others1 and the decision of the Hon'ble Apex Court in the case of
Arshnoor Singh Vs Harpal Kaur and Others 2.
6. Learned counsel for the respondents supported the impugned
judgment and decree. He submitted that the first Appellate Court
1 1955 SCC OnLine MP 51
2 (2020) 14 Supreme Court Cases 436
904.358.23 sa.docx
rightly held that Section 115 of the Indian Evidence Act and Articles 58
and 113, as relied upon by the appellants, are not applicable to the
facts of the present case. He submitted that the first Appellate Court
has rightly relied upon Article 110 of the Limitation Act, which provides
that a person excluded from a joint family property has a right to
enforce his claim for separate possession within 12 years from the
exclusion becoming known to the plaintiff. In the present case, after
defendant no. 1 transferred the suit property to defendant no. 2, the
plaintiff claimed his separate share by issuing a notice dated 29 th June
2005. Defendant no. 1 refused the plaintiff's claim. Hence, the suit filed
within 12 years was within limitation as provided under Article 110 of
the Limitation Act.
7. I have considered the submissions made by both the parties.
Perused the papers of the second appeal. The Trial Court dismissed
the suit by holding that the suit properties were not ancestral
properties. The second ground for dismissal of the suit was that
because of the adoption of the plaintiff's grandfather, he had severed
relations with his biological family. Hence, the plaintiff was not entitled
to any partition and separate possession. So far as the point of
904.358.23 sa.docx
limitation is concerned, the same was not raised and dealt with by the
Trial Court. The first Appellate Court framed points for consideration,
including a limitation point. The issue regarding the plaintiff's
entitlement to claim share in view of his grandfather's adoption into
another family was negatived by the first Appellate Court. In view of
the settled legal principles, learned counsel for the appellants has not
pressed the said point in this second appeal.
8. Learned counsel for the appellants has argued only the point of
limitation on the ground of ouster. She submitted that in view of the
mutation entry effected in favour of defendant no. 1 in the year 1945,
there was clear ouster, and thus, the suit was barred by limitation. A
perusal of the reasons recorded by the First Appellate Court on the
point of limitation indicates that the First Appellate Court has referred
to Article 110 of the Limitation Act for calculating 12 years from the
date of exclusion. The first Appellate Court accepted the plaintiff's case
that the cause of action to file suit arose when defendant no. 1 refused
to give a separate share as demanded by the plaintiff. Though the
mutation entry stood in the name of defendant no. 1, the same cannot
be held to be an ouster only on the ground that the plaintiff did not
904.358.23 sa.docx
challenge the mutation entry. It is not in dispute that defendant no. 1
executed the sale deed in favour of defendant no. 2, i.e. his wife, on
12th April 1982. However, the sale deed was only regarding half share
in the well. The defendants did not produce the sale deed in favour of
defendant no. 2. Hence, by referring to mutation entry 358, the first
Appellate Court held that even if the transfer in favour of defendant no.
2 was accepted, the transfer was between the families of defendant
no. 1, only transferring half share in the well to his wife. Thus, the first
Appellate Court held that not raising any challenge to the sale deed in
favour of defendant no. 2 would not disentitle the plaintiff from claiming
partition and separate possession.
9. Mutation Entry of the year 1945 is not exhibited during the trial.
Thus, mutation entry in favour of defendant no. 1 of the year 1945, as
well as the sale deed executed by defendant no. 1 in favour of
defendant no. 2, is not accepted as an ouster by the first Appellate
Court for the purpose of reckoning the period of limitation. The first
Appellate Court relied upon the demand made by the plaintiff on 29 th
June 2005, seeking partition and separate possession and refusal of
defendant no. 1 to give a separate share.
904.358.23 sa.docx
10. The fact that the suit property belonged to the common ancestor
of the parties is not in dispute. The adoption of the plaintiff's
grandfather in another family does not disentitle the plaintiff's father to
be the coparcener of his biological family. Once this legal position is
accepted that the plaintiff was part of the Gavhane family and that the
suit property was not an independent property of defendant no. 1, the
plaintiff is entitled to claim partition and separate possession. The
theory of exclusion argued by the learned counsel for the appellants
will not disentitle a coparcener to claim partition and separate
possession. There is a presumption of jointness of a coparcenary
property unless the contrary is proved by cogent evidence. Even
assuming that defendant no. 1 was in uninterrupted physical
possession of the suit property, the same will not take away the
plaintiff's right to seek partition and separate possession, in as much
as the law treats him in possession as a co-owner being a coparcener.
In the present case, there is no cogent evidence to show that the
plaintiff was excluded from the coparcenary property.
11. The first Appellate Court, being the last fact finding court,
examined the evidence on record and disbelieved the theory of
904.358.23 sa.docx
exclusion as argued on behalf of the appellants. I do not find any
illegality or perversity in the reasons recorded by the first Appellate
Court. Thus, the first Appellate Court has rightly referred to Article 110
and held that refusal on the part of defendant no. 1 to grant the
plaintiff's claim for separate share and possession made on 29 th June
2005 is to be considered as the cause of action for reckoning the
period of limitation to file the suit for partition and separate possession.
Thus, the ground raised on the point of limitation is not required to be
considered by this Court in view of the findings of facts recorded by the
first Appellate Court.
12. The second appeal does not raise any other substantial question
of law. Hence, the second appeal is dismissed.
13. In view of the dismissal of the second appeal, pending Interim
Application No. 698 of 2021 is disposed of as infructuous.
[GAURI GODSE, J.]
