Bombay High Court
Vasant Krishnath Kave And Ors vs Shivaji Krishnath Kave And Ors on 31 July, 2025
-1-
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 646 OF 2016 WITH
CIVIL APPLICATION NO. 330 OF 2017
IN SA/646/2016
Vasant Krishnath Kave & others ....Appellants
VERSUS
Shivaji Krishnath Kave & others .....Respondents
.....
Mr. M. S. Kulkarni, Advocate holding for Mr. P. P. More, Advocate for
Appellants.
Mr. S. N. Patil, Advocate for Respondent Nos. 1A to 1D.
CORAM : R. M. JOSHI, J.
DATE : 31st JULY, 2025.
PER COURT :
1. This Second Appeal under Section 100 of Code of Civil
Procedure takes exception to the judgment and order dated
08.01.2016 passed in Regular Civil Appeal No. 134/2013 confirming
the judgment and order dated 15.04.2011 passed in Regular Civil
Suit No. 195/2007 whereby the suit filed by the Plaintiff for seeking
partition and separate possession of the suit properties came to be
decreed.
2. The parties are referred to as Plaintiff and Defendant for
the sake of convenience.
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3. The facts which led to filing of this Appeal are narrated in
brief as under :-
Plaintiff filed suit bearing Regular Civil Suit No.
195/2007 for partition and separate share in the suit property
bearing Survey no. 161 and 4A. Defendants resisted the said suit
and claimed previous partition. It is also contended that Plaintiff
has sold his share in the suit properties. It is also claimed that one
of the joint family properties is acquired and compensation is
received and the same mut be included in suit properties. Parties
adduced evidence. Trial Court decreed the suit by judgment and
decree dated 15.04.2011. Appeal filed by the Defendants came to be
dismissed. Hence, this Second Appeal.
4. Learned counsel for Appellants/original Defendants
submits that for want of inclusion of the properties of the joint family,
the suit itself was not maintainable. In order to support this
submission, he took aid of the contention of Plaintiff in the plaint
with regard to existence of house property belonging to joint family.
It is his further submission that in any case, in the written
statement, there is a specific plea raised by Defendants with regard to
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sale of Survey No. 43 and a portion of joint family property being
acquired and compensation being paid and both
properties/compensation amount are not included in suit properties.
Hence, according to him, the suit for partition itself was not
maintainable and resultantly, this amounts to substantial question of
law.
5. Learned counsel for Plaintiff resisted the said contention
by pointing out that the Plaintiff though has made a mention about
house property, he has not claimed any share therein. According to
him, so far as contention with regard to the acquisition of portion of
the suit property and payment of compensation is concerned,
reference is made to the evidence wherein both the sides admit the
said fact however, no one claims as to who was paid said
compensation. Thus, it is his submission that this question of fact
cannot be taken into this Second Appeal. It is also argued that the
property allegedly sold by Plaintiff is not proved to be joint family
property.
6. There is no dispute about the fact that the parties are
related to each other and they formed a joint family. Though the
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Defendants have come with a theory of previous partition, the same
has not been proved before the Trial Court. The only question,
therefore remains for consideration is as to whether the Plaintiff not
claiming any share in the house property would dis-entitle him to
seek any share in the suit property. A candid answer thereto is to be
in negative. The question, therefore, now that would remain to be
decided is about the share of Defendants in the house property.
Considering the fact that Defendants do not dispute their respective
shares and possession in the house property and practically there
occurs no need to send the suit back to the Trial Court for decision
afresh. As far as sale of Survey No. 43 by Plaintiff is concerned, there
is no evidence led by Defendants to hold that this property is joint
family property.
7. As far as issue of non-inclusion of portion of property
which was acquired and compensation paid is concerned, if it was a
case of the Defendants that compensation was received by Plaintiff,
then the Defendants would have been justified in stating that all the
properties are not included. Perusal of the evidence on record
indicates that the parties admitted the said fact of payment of
compensation however, they did not claim that compensation was
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paid to Plaintiff only or Defendants or to the other side. Thus, this
remains a question of fact and not a question of law. For want of
substantial question of law, Appeal stands dismissed. Pending
application, if any, does not survive and stands disposed of.
( R. M. JOSHI)
Judge
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