Bombay High Court
Babasheb Jalindar Metkari vs Sou.Mangal Babasaheb Metkari on 22 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:3688
10-SA-723-2018.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.723 OF 2018
WITH
CIVIL APPLICATION NO.1632 OF 2018
IN
SECOND APPEAL NO.723 OF 2018
Babasheb Jalindar Metkari & Ors. ...Appellants/
Applicants
Versus
Sou.Mangal Babasaheb Metkari & Ors. ...Respondents
--------------------
Mr. V. S. Talkute for the Appellants/Applicants.
Mr. Ajay A. Joshi for the Respondents.
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 22, 2024
P. C. :
1. Being dissatisfied that the Judgment of the First Appellate Court
dated 5th May, 2017, dismissing the Appeal the present Appeal has been
filed.
2. The Appellants are the original Defendant Nos. 1 to 3 in Regular
Civil Suit No. 39 of 2011 filed by the Respondent No.1 seeking a
declaration that the Plaintiff has half share in the property and for
partition of the property and for a directions to the Appellants to hand
over possession. For the sake of convenience, the parties are referred by
their status before the Trial Court.
10-SA-723-2018.doc
3. Regular Civil Suit No. 39 of 2011 was filed by the Plaintiff
claiming half share in the suit property which was admittedly the ancestral
property of the Plaintiff. It was contended that one Sida Khatal was the
owner of the suit land who expired leaving behind him surviving his legal
heirs his wife Malan and three daughters namely Mangal, Sakhubai and
Tarabai. Mangal is the Plaintiff in the present case. Tarabai died issueless
and Sakhubai has one daughter and three sons. The case of the Plaintiff is
that, the Plaintiff is the wife of Defendant No. 1 and the Defendant No. 2
is the brother of the Defendant no. 1 and Defendant No. 3 is the wife of
Defendant No. 2. The Defendant No. 3 is daughter of the Plaintiff's sister
Sakhubai. It was pleaded that the suit property is the ancestral property
and the Defendant Nos. 1 and 2 had no right in the suit property.
However by virtue of a document styled as a partition deed dated 30 th
December, 1984, a partition is shown to have been effected between
Malan i.e. the mother of the Plaintiff and the Defendant Nos. 1 and 2. It
was pleaded that pursuant there to, a mutation entry has been effected,
however, the Plaintiff's right in the suit property has not being
extinguished. It was further pleaded that subsequently, the Defendant No.
1 has thrown the Plaintiff out of the matrimonial house and necessary
proceedings are pending against the Defendant Nos. 1 and 2. It was
further pleaded that the Defendant Nos. 1 to 3 have illegally mutated the
10-SA-723-2018.doc
name of the Defendant No. 3 in the mutation record.
4. The suit came to be resisted by the Defendant Nos. 1 to 3. The
case of the Defendent Nos. 1 and 2 is that Mangal, Sakhubai and Tarabai
had made an Application before the Revenue Authority that their names
deleted from the revenue records and has thereby relinquished their right
in the suit property. It was contended that Malan, i.e. the mother of the
Plaintiff had love and affection for the Defendant No. 1 and 2 and had
made an Application for permission to execute the partition of the suit
land and as such, the same was partitioned between the mother of the
Plaintiff and Defendant Nos. 1 and 2.
5. The parties went to trial, and the Trial Court held that the Plaintiff
is entitled to the suit land to extent of half share and no right accrued to
the Defendant Nos. 1 and 2 on the basis of the partition effected by
Malan. The Trial Court further held that the Plaintiff did not relinquish
her share in the suit land and decreed the suit. The Appellate Court
concurred with the findings with the Trial Court and dismissed the
Appeal.
6. Heard Mr. Talkute, learned counsel for the Appellant and Mr.
Joshi, learned counsel for the Respondents.
7. Mr. Talkute, learned counsel for the Appellant would submit that
admittedly the suit lands are in possession of the Defendant Nos. 1 to 3
10-SA-723-2018.doc
and the Trial Court had declared the right of the Plaintiff to the extent of
half share and for partition to be effected. He submits that there was no
decree for possession passed. He would further submit that the First
Appellate Court has mechanically reproduced the findings of the Trial
Court without considering the fact that the evidence on record points to
the relinquishment of the rights by the sisters in favour of their mother
subsequent to which the partition was effected.
8. Considered the submissions and perused the record.
9. It is not disputed that the property is ancestral property belonging
to the father of the Plaintiff. From the Judgment of the First Appellate
Court, it appears that the contention of the Defendants was that after the
death of the father of the Plaintiff-Sida, the suit property was entered into
the name of legal heirs i.e. his wife Malan and three daughters and
thereafter an Application was made by the sisters to delete their from the
revenue records. It is well settled that there cannot be any oral
relinquishment deed and the release deed if any, is required to be in
writing. In the present case, indisputedly there is no relinquishment deed
produced on record by the Defendants, to conclude that there was a
release in favour of the mother of the Plaintiff by the daughters including
the Plaintiff.
10. As regards the submission that there was a partition which was
10-SA-723-2018.doc
effected between the mother of the Plaintiff and the Defendant Nos.1 and
2, admittedly the Defendant Nos. 1 and 2 are not co-parceners and as
such, there is no question of any partition being effected between a co-
parcener and stranger to the property. As far as decree for possession is
concerned, the Trial Court had framed the issue whether the Plaintiff is
entitled for partition and separate possession and answered the same in
affirmative. There is no challenge by the Plaintiff, at least demonstrated to
this Court, as regards non grant of decree for possession despite answering
issue in the affirmative. The absence of decree for possession does not
raise substantial question of law. Perusal of the judgment of the Trial
Court would indicate that there has been a declaration of half of the share
of the Plaintiff in the suit property and for partition to be effected. The
evidence on record does not indicate any perversity in the finding and is
in according to the well settled position in law most of the facts being
undisputed. In that view of the matter, no substantial question of law
arises.
11. Appeal stands dismissed.
12. In view of dismissal of Second Appeal, Civil Application does not
survive for consideration and the same stands disposed of.
(SHARMILA U. DESHMUKH, J. )
