Bombay High Court
Manik Bhimrao Kolawale vs Santosh Haridas Kolawale on 2 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:5990
54 Sa-790-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 790 OF 2017
Manik Bhimrao Kolawale and Others. ...Appellants.
Versus
Santosh Haridas Kolawale and Others. ...Respondents.
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Mr. Sarang S. Aradhye, Ms. Gauri Velankar, Mr.Shantanu Gurav and Ms. Shruti
Kothavade and Mr. Samarth Chordia for the appellant.
Mr. A. A. Joshi for respondent no. 1.
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Coram : Sharmila U. Deshmukh, J.
Date : February 2, 2024.
P. C. :
1. Being dissatisfied by the judgment dated 24 th July 2017 passed
by the appellate Court in Regular Civil Appeal No. 79 of 2012 by which
the appeal and the cross-objections filed by original defendant no.4
came to be rejected thereby confirming the judgment and decree of
trial Court dated 10th April 2012 decreeing the suit, the original
defendant nos. 1 and 2 are before this Court.
2. Facts of the case are that the suit was filed seeking partition of
suit property bearing Gat No. 215 admeasuring 6-Hectare 83-Are
situated in District Solapur. The suit property originally belonged to
defendant nos.3 to 10. In the year 2008, defendant no.3 sold his
Patil-SR 1 of 4
54 Sa-790-2017.doc
undivided share in the suit property to defendant nos. 1 and 2. The
defendant nos. 4 to 10 sold the remaining portion to the plaintiff. The
case of plaintiff was that since the year 2008, the plaintiff is in
possession of the eastern portion of the property while defendant
nos.1 and 2 are in possession of the western portion of the suit
property. It was pleaded that as undivided share was sold, the
boundaries were not fixed and partition was sought.
3. Defendant nos. 1 and 2 resisted the suit contending that the
sale deed by which the plaintiff purchased portion of the suit property
is void and illegal and no possession has been handed over to the
plaintiff.
4. The parties went to trial. The trial Court by its judgment dated
10th April 2012 decreed the suit directing partition of the suit land to
be effected. As against this, original defendant nos. 1 and 2 preferred
an appeal. The appellate Court held that defendant nos. 1 and 2 have
failed to prove that the sale deed of plaintiff is void and answered the
issue against defendant nos. 1 and 2. The Appellate Court further
held that the defendant nos. 3 to 10 have clearly admitted in the
written statement that they have sold their undivided share in the suit
property to the plaintiffs. Based on the pleadings and evidence, the
Appellate Court dismissed appeal.
Patil-SR 2 of 4
54 Sa-790-2017.doc
5. Heard learned counsel appearing for the appellant and learned
counsel appearing for respondent no. 1.
6. Learned counsel appearing for the appellant would submit that
the finding of trial Court that no specified portion of the property was
sold would lead to a difficult position inasmuch as the plaintiff has
also submitted that he has his own land adjacent to the eastern
portion of the suit property and it would be convenient for him to
make use of the land. He submits that the plaintiff had no right to ask
for partition of the suit property and that the substantial question of
law which arises is whether the alienee of undivided portion of a joint
family property is entitled to seek partition.
7. Considered the submissions and perused the record
8. The trial Court on the basis of evidence on record has held that
the plaintiff has established the purchase of portion of the suit
property from defendant nos. 4 to 10. The trial Court considered that
the defendants had appeared before the Court and admitted the case
of plaintiff. Trial Court held that as defendant nos. 4 to 10 have sold
their undivided share to the plaintiff, it was not open for them to sell
any specific share and as such had directed the partition of the suit
property. It is well settled that in respect of the undivided joint family
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54 Sa-790-2017.doc
property, the shares are not defined. It is open for a co-parcener to
sell his undivided share in the ancestral property without the consent
of other co-parceners, however, the right which enures to the
purchaser is to seek partition of the property, which the plaintiff has
done. In the present case as the shares have not been defined and
there is no partition by metes and bounds, the co-parcener cannot sell
any specific portion of the suit property and all that he alienates is his
undivided share in the ancestral property.
9. Considering the settled position in law, the trial Court has
rightly decreed the suit and directed the partition. The appellate
Court on re-appreciation of evidence has confirmed findings of the
trial Court.
10. In view of the above, no substantial question of law arises.
Appeal is dismissed.
11. In view of the disposal of second appeal, civil/interim
application(s) taken out in this appeal, if any, does not survive and the
same is disposed of.
[Sharmila U. Deshmukh, J.]
Patil-SR 4 of 4
