Bombay High Court
Yashwant Narayan Hadas And Ors vs Govind Yevaji Hadas on 6 February, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:6076
kishor 1/3 904 SA 175 of 2023 (C) .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 175 OF 2023
WITH
IA/1985/2023 IN SA/175/2023
WITH
IA/1988/2023 IN SA/175/2023
Yashwant Narayan Hadas And Ors. ...Appellants
Versus
Govind Yevaji Hadas ...Respondent
....
Mr. Sachin Gite, for Appellants / Applicants.
Mr. Sugandh Deshmukh, for Respondent.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 06 FEBRUARY 2024.
P.C. :
Heard Mr. Gite, the learned counsel appearing for Appellants
and Mr. Deshmukh, the learned counsel appearing for Respondent. After
having considered the submissions canvassed by the learned counsel
appearing for parties, Second Appeal is admitted on following substantial
questions of law :
i) Whether allotment of unequal shares in the oral partition
can alone be a ground for rebutting presumption of partition
between the parties ?
kishor 2/3 904 SA 175 of 2023 (C) .doc
ii) Whether certification of mutation entry as well as
finalization of consolidation scheme showing separate possession
would lead credence to the defence of oral partition raised by the
Defendants ?
2. Printing dispensed with. Mr. Deshmukh waives the service of
notice on behalf of Respondent. Appellants to file private paper book within a
period of one week from today. Hearing of Appeal is expedited.
INTERIM APPLICATION NO.1985 OF 2023 IN SA/175/2023
3. The Interim Application is filed to bring on record legal heirs of
deceased Appellant No.6. The Application is fairly not opposed by Mr.
Deshmukh. For the reasons stated in the Application, same is allowed. Legal
heirs of Appellant No.6 are permitted to be brought on record. Amendment
be carried within a period of 03 weeks from today. Interim Application is
disposed of.
INTERIM APPLICATION NO.1988 OF 2023 IN SA/175/2023
4. The Application is filed by the Appellants seeking stay of the
Judgment and decree passed by the First Appellate Court. By its Decree, First
Appellate Court has partly decreed the suit of the Plaintiffs for partition and
has determined shares of the parties in the suit for partition. The defence of
the Defendants is execution of oral partition and separate possession of shares
since year 1975. Thus, it is an admitted position that since 1975, the parties
kishor 3/3 904 SA 175 of 2023 (C) .doc
are possessing the lands in their respective occupation. This position would be
disturbed on account of decree of partition and separate possession granted by
the First Appellate Court. Since Appeal is admitted by formulating substantial
questions of law, it would be necessary to stay the effect of the First Appellate
Court's decree dated 07 July 2022.
5. Accordingly, during pendency of the present Appeal, Judgment
an decree dated 07 July 2022 passed by the District Judge-4, Nashik in
Regular Civil Appeal No.424 of 2015 shall remain stayed subject to condition
that the Appellant would not create any third party rights in respect of
properties in their possession. Interim Application is disposed of.
SANDEEP V. MARNE, J.
KISHOR by KISHOR
VISHNU
VISHNU Date:
KAMBLE
KAMBLE 2024.02.08
11:36:49 +0530
