Bombay High Court
Bhujang Apparao Sanap And Ors vs Bhagwat Apparao Sanap And Ors on 31 January, 2024
2024:BHC-AUG:2229
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 85 OF 2023
WITH CIVIL APPLICATION NO. 2575 OF 2023
BHUJANG APPARAO SANAP AND ORS.
VERSUS
BHAGWAT APPARAO SANAP AND ORS.
Mr. V. M. Humbe, Advocate for the appellants
Mr. K. R. Doke, Advocate for respondents.
CORAM : R. M. JOSHI, J.
DATE : 31st JANUARY, 2024
P.C. :-
1. This appeal takes exception under Section 100 of the Code of Civil
Procedure to the judgment and decree passed by the First Appellate
Court in RCA No. 14/2019 whereby the judgment decree passed by the
Trial Court of dismissal of RCS No. 87/2011 is reversed and the suit is
decreed.
2. For the sake of convenience the parties are referred to as plaintiffs
and defendants.
3. There is no dispute about the fact that plaintiffs and defendants are
real brothers and blood relatives. Plaintiff has filed suit for seeking
partition of the suit properties with the averment that the suit properties
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were purchased out of the income and for the joint family but in the
name of their mother. Undisputedly, the said transaction is dated 30 th
March, 1979. The plaintiff has specifically averred that out of the income
of ancestral joint family properties as well as from independent income of
the plaintiff and defendant No.2 the suit properties were purchased.
There is also averment in the plaint to the extent of partition of other
joint family properties in the year 1982 except for the suit properties.
There is allegation against the defendant that by obtaining the
documents from mother he has got the property transferred in his name
and also mutated his name in the revenue record. With these averments
the suit for partition is filed.
4. The defendant No.1 opposed the said contention by claiming that
the said properties are his self acquired properties but purchased in the
name of his mother.
5. Learned counsel for the defendant No.1 submits that in the instant
case the issue is before this Court is as to wether the suit is maintainable
when the all properties of the joint family were not included therein. It is
his further contention that the First Appellate Court has committed error
in decreeing the suit by ignoring the evidence led by the defendant No.1
with regard to his employment and that the proof regarding the purchase
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of suit properties by him is ignored by First Appellate Court. In order to
support his submissions he has drawn attention of this Court to the
evidence led before the Trial Court. According to him, the defendant No.1
has led evidence that at the relevant time he was working at Pune.
According to him plaintiff in cross-examination has accepted the fact that
he was employed after the purchase of the suit properties and therefore
there is no evidence to show that it is purchased from income of plaintiff.
He further canvassed that there is no evidence to indicate income from
the ancestral and joint family properties. To support his submission he
placed reliance on the judgment of the Hon'ble Apex Court in Case of
Kenchegowda (Since deceased) by Legal Representatives Vs.
Siddegowda alias Motegowda (1994) 4 SCC 294 . He also placed reliance
on the judgment in case of Shankar Sitaram Sontakke and another Vs.
Balkrishna Sitaram Sontakke and others, AIR 1954 SC 352 . Learned
counsel for the plaintiff supported the impugned judgment and decree
passed by the First Appellate Court.
6. Perusal of the pleadings clearly shows that plaintiff has specifically
come out with the case about purchase of the suit properties from joint
family properties income from joint family properties as well as from his
and defendant No.2's personal income. As far as the said contention is
concerned, the evidence on record sufficiently demonstrates that there
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were ancestral joint family landed properties. In fact the defendant No.1
in cross-examination has given candid admission to that effect. Though
he denies the partition of the properties in respect of those properties,
however, in the cross-examination he gives evasive answer in this
regard. There is no specific denial even in respect of the property in the
said partition which came to his own share. Pertinently all sharers are
having independent occupation of their respective shares in agricultural
lands. It is not case of either side that these lands are barren/
uncultivated lands. Independent cultivation of lands since 1982 clearly
indicates that income was derived from joint family lands. Thus, nucleus
was available for the joint family to purchase the land. Plaintiff's
evidence shows that in the year 1982 the properties were partitioned
excluding the properties standing in the name of mother. In the cross-
examination it is suggested to defendant No.1 that at the time of
previous partition the said land was not partitioned as it was left for the
maintenance of the mother. Though this suggestion has been denied by
the defendant No.1, the plaintiff has shown probable reason for non
inclusion of suit properties in the previous partition. In the light of these
facts this Court finds no substance the contention of the learned counsel
for the defendant No.1 that all the properties are not included in the suit
and therefore suit is not maintainable. From perusal of the judgment of
the Hon'ble Apex Court in case of Kenchegowda (Since deceased) by
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Legal Representatives (supra) shows that it is geneal rule that on the
joint family property should be included in the suit however, this rule is
subject to exception. There cannot be any better case than the one in
hand wherein there is evidence to indicate that the properties were
partitioned between the co-sharers in the year 1982 and they are in
exclusive and independent possession of their respective part. In such
circumstance, there was no question of including those properties in the
present suit. Thus, this Court finds no substance in the objection sought
to be raised about the maintainability of the suit.
7. Once it is admitted that there were ancestral properties of the joint
family and nucleus was available for the purchase of the properties,
there is presumption of jointness of the same. The defendant No.1 claims
that the suit properties are self acquired properties. Thus, burden is on
the defendant No.1 to prove that he has purchased those properties out
of his own income. In this regard evidence of the defendant shows that
he vaguely states about he being employed at Pune during the relevant
period. However, in the cross-examination he was unable to give even
name of the person with whom he worked.
8. Perusal of the evidence led by defendant No.1 sufficiently shows
that the defendant No.1 was unable to give any reliable evidence in order
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to hold that at the relevant time he was employed and was earning
enough money to purchase the suit properties. Defendant therefore has
failed to prove that the suit properties are his self acquired properties
and he purchased the same in the name of his mother.
9. Having regard to these facts, learned Trial Court was wrong in
dismissing the suit and the said error has been rightly corrected by the
First Appellate Court. This Court finds no substantial question of law
being involved in this appeal. Hence, appeal stands dismissed. Pending
civil application, if any, stands disposed of.
(R. M. JOSHI, J.)
ssp
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