Bombay High Court
Shri Ganpati Shripati Gurav Since ... vs Sau Akkatai Ramchandra Gurav on 23 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4002
Neeta Sawant 1/4 29-SA-464-2023.docx
23 January 2024.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 464 OF 2023
Shri Ganpati Shripati Gurav, since ....Appellants
deceased through LRS and Ors.
:V/s :
Sau. Akkatai Ramchandra Gurav and ...Respondents
Ors.
_________
Mr. Prasad P. Kulkarni, for the Appellants
Mr. V.A. Shastri, for the Respondents.
________
CORAM : SANDEEP V. MARNE, J.
Dated : 23 January 2024.
P.C. :
1. By this Appeal, Appellants challenge Judgment and Order dated 19
June 2023 passed by the District Court, Kolhapur dismissing Regular Civil
Appeal No. 285 of 2015 filed by the Appellants and confirming the
Decree dated 8 July 2015 passed by the 12 th Joint Civil Judge Junior
Division, Kolhapur in Regular Civil Suit No. 688 of 2011.
2. Plaintiffs are sisters of Defendants. They instituted Regular Civil
Suit No. 688 of 2011 for partition of suit properties consisting of
agricultural lands and house properties. The Trial Court has decreed
the suit holding that the three Plaintiffs and two Defendants each
Neeta Sawant 2/4 29-SA-464-2023.docx
23 January 2024.
have one-fifth share in the suit properties. The Appeal preferred by
the Appellants has been rejected by the first Appellate Court.
Aggrieved by the decisions of the trial and the first Appellate Court,
Defendants/Appellants have filed the present Appeal.
3. I have heard Mr. Kulkarni, the learned counsel appearing for the
Appellants and Mr. Shastri, the learned counsel appearing for the
Respondents. After having considered the submissions canvassed by
the learned counsel appearing for the parties, it is seen that objection
of limitation was raised to defend the suit by the
Defendants/Appellants. The objection of limitation was premised on
the Mutation Entry No. 2893 effected on 9 August 1975. It is the
contention of Defendants/Appellants that the Mutation Entry was
effected after service of notice on the Plaintiffs. That by effecting
Mutation Entry No.2893, names of only two Defendants were
mutated to the records of rights of the agricultural properties and that
this amounted to exclusion of Plaintiffs from the suit property. That
therefore the suit for partition could have been filed within a period
of 12 years of such exclusion under the provisions of Article 110 of
the Limitation Act. Mr. Kulkarni has further submitted that Mutation
Entry No. 2893 was introduced for the first time before the Appellate
Court. The Appellate Court has taken the said Mutation Entry on
record and has marked the same in evidence. However, following the
provisions of Order 41 Rule 28 of the Civil Procedure Code, 1908, the
first Appellate Court ought to have remanded the issue to the Trial
Court or could have taken the evidence with regard to Mutation Entry
Neeta Sawant 3/4 29-SA-464-2023.docx
23 January 2024.
No. 2893 itself. In my view, Mutation Entry being a public document,
has rightly been exhibited by the first Appellate Court. Even if the
contents of Mutation Entry No. 2893 are taken as correct and even if
it is assumed that the Mutation Entry was effected after service of
notice to Plaintiffs, the Mutation Entry does not evidence exclusion of
Plaintiffs from the suit properties. Mere mutation of name of one of
the co-parceners to the suit property in exclusion of other co-
parceners , does not amount exclusion of such co-parceners from the
suit property. To prove exclusion as contemplated under Section 110
of the Limitation Act, it is necessary to prove that the exclusion was
by way of partition and one of the co-parcener is denied any share
therein. The Mutation Entry made for fiscal purposes does not
determine rights and entitlement of the parties in respect of the land
in question. In my view, therefore Mutation Entry No. 2893 did not
amount to exclusion of Plaintiffs from the suit property. The suit was
thus not barred by limitation under Article 110 of the Limitation Act.
4. Mr. Kulkarni has relied upon Mutation Entry No. 2330 certified
on 2 March 1965 by which the land described therein has been
regranted in favour of his father, Shripati Bala Gurav subject to the
condition of non-alienation thereof either directly or indirectly.
According to Mr. Kulkarni by that condition, the suit property cannot
be partitioned as partition would amount to indirect alienation of the
property. I find the contention to be rather amusing. Succession of
property after death of Shripati Bala Gurav would not amount to
alienation thereof. Going by the theory sought to be suggested by
Neeta Sawant 4/4 29-SA-464-2023.docx
23 January 2024.
Appellants/Defendants, even the Defendants would not be able to
claim any share in the properties in respect of which Mutation Entry
No. 2330 has been certified. The contention is thus stated only to be
rejected.
5. Coming to the issue of partition of house properties, reliance is
placed on partition deed executed between the brothers on 18
January 1993. It is contended that the said partition deed is signed
by all the three Plaintiff sisters. However, perusal of the findings
recorded by the Trial and the first Appellate Court would indicate that
the said partition deed has not been proved and cannot be read in
evidence on account of failure to register the same. Mr. Kulkarni,
would submit that in absence of registration, the partition deed can
be taken into consideration atleast for collateral purposes of proving
that the partition effected by the said document was indeed acted
upon. However, Plaintiffs do not agree that the two brothers started
occupying the house properties as per the alleged partition deed. On
the contrary, Plaintiff No.2 has specifically pleaded in the plaint that
she occupies one of the house properties. In that view of the matter,
partition deed cannot be used even for collateral purposes.
6. After considering the overall conspectus of the case, I am
satisfied that no substantial question of law is involved in the Appeal.
The Appeal is accordingly rejected.
SANDEEP V. MARNE, J.
