Bombay High Court
Bhaktiram Vishram Rathod vs Amrutlal Vishram Rathod Deceased Lrs. ... on 22 July, 2025
2025:BHC-AUG:19212
1 SA.364-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.364 OF 2021
Bhaktiram S/o Vishram Rathod,
Since deceased through his L.Rs.
1. Yashoda w/o Bhaktiram Rathod,
Age: 80 years, Occu.: Household,
R/o: Bus Stand Road, Parbhani,
Taluka and District: Parbhani.
2. Pravin s/o Bhaktiram Rathod,
Age: 58 years, Occu.: Business,
R/o: as above.
3. Nitin s/o Bhaktiram Rathod,
since deceased through his L.Rs.
3-A] Jayashree w/o Nitin Rathod,
Age: 50 years, Occu.: Household,
R/o: as above.
3-B] Manasi d/o Nitin Rathod,
Age: 21 years, Occu.: Education,
R/o: As above.
4. Rajesh s/o Bhaktiram Rathod,
Age: 54 years, Occu.: Business,
R/o: As above.
5. Paresh s/o Bhaktiram Rathod,
Age: 52 years, Occu.: Business,
R/o: As above.
6. Girish s/o Bhaktiram Rathod,
Age: 50 years, Occu.: Business,
R/o: As above.
7. Amita d/o Bhaktiram Rathod,
Amita w/o Manish Chavara,
Age: 48 years, Occu.: Household,
R/o: Village Bagratawa,
Taluka: Babai, District: Hoshangabad,
(Madhya Pradesh State).
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8. Yogesh s/o Bhaktiram Rathod,
Age: 46 years, Occu.: Business,
R/o: Bus Stand Road, Parbhani,
Taluka and District: Parbhani. ... Appellant/s.
Versus
1. Amrutlal s/o Vishram Rathod,
Since deceased through his L.R.s-
1-A] Dhangauri w/o Amrutlal Rathod,
Age: 88 years, Occu.: Household,
1-B] Kiran s/o Amrutlal Rathod,
Age: 63 years, Occu.: Business,
1-C] Manoj s/o Amrutlal Rathod,
Age: 62 years, Occu.: Business,
1-D] Satish s/o Amrutlal Rathod,
Age: 59 years, Occu.: Business,
1-E] Pradip s/o Amrutlal Rathod,
Age: 58 years, Occu.: Business,
1-F] Hemant s/o Amrutlal Rathod,
Age: 55 years, Occu.: Business,
1-G] Bhavana w/o Ratilal Vigad,
Age: 53 years, Occu.: Household,
1-H] Bharti w/o Dinesh Chawada,
Age: 53 years, Occu.: Household,
All above R/o: Jail Road, Kenjhar,
P. S. Town, District: Keonjah, (Orissa State),
Through General Power of Attorney,
Ishwarlal s/o Vishram Rathod
(Respondent No.3)
2. Jayantilal s/o Vishram Rathod,
Since deceased through his L.Rs.
2-A] Pushpa w/o Jayantilal Rathod (abated),
Age: 78 years, Occu.: Household,
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R/o: Bus Stand Road, Parbhani,
Taluka and District: Parbhani.
3. Ishwarlal s/o Vishram Rathod,
Since deceased through his L.Rs.
3-A] Chandralekha w/o Ishwar Lal Bhai Rathod,
Age: 77 years, Occ: House Wife,
R/o. Sai Kripa, Near Thosar Granthalaya,
Smarth Nagar, Tq. & Dist. Aurangabad.
3-B] Mahesh s/o Ishwar Lal Bhai Rathod,
Age: 45 years, Oce: Self employed,
R/o. Flat No.S1, Building B1,
Tejovalay Society, Near Cipla Foundation,
Warje, Tq. & Dist. Parbhani.
3-C] Pramod Bhai s/o Ishwar Lal Bhai Rathod,
Age: 53 years, Occ: Service,
R/o. Flat No.SI, Building B1, Tejovalay Society,
Near Cipla Foundation, Warje,
Tq. & Dist. Parbhani.
3-D] Kashmira D/o Ishwarlal Rathod,
Age: 45 yrs. Occ. Nil,
R/o. Saikripa, Near Thosar Granthalaya,
Smarth Nagar, Tq. and Dist. Aurangabad.
4. Manjula w/o Prabhu Chawda,
Age: 78 years, Occu: Household.
R/o: Sinhgad, Pune, At present
residing at Vishnu Nagar, Parbhani,
Taluka and District: Parbhani.
5. Usha w/o Shyamji Shyababu Rathod (chavan),
Since deceased through her L.Rs.
5-A] Vipul s/o Shyamji Rathod (Chavan),
Age: 45 years, Occ: Business,
R/o. Railway Colony, Dound,
Tq. Dound, Dist. Pune.
5-B] Anand s/o Shyamji Rathod (Chavan),
Age: 40 years, Occ: Business,
R/o. Railway Colony, Dound,
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Tq. Dound, Dist. Pune.
5-C] Harsha @ Pinky d/o Shyamji Chavan,
Age: 42 years, Occ: Household,
R/o. Railway Colony, Dound,
Tq. Dound, Dist. Pune.
6. Damyanti w/o Jagdish Chavan,
Since deceased through his L.Rs.
6-A] Murlidhar s/o Jagdish Chavan,
Age: 42 years, Occ: Service,
R/o. Seeta Tower, Bramhan Wadi,
Begum Peth, Hyderabad,
Tq. Dound, Dist. Hyderabad.
(Telangana State).
6-B] Jyoti w/o Pradeep Tank,
Age: 46 years, Occ: Household,
R/o. Kajaj Nagar, MG. Road,
Adilabad, Tq. & Dist. Adilabad,
(Telangana State).
6-C] Megharani d/o Jagdish Chavan,
Age: 42 years, Occ: Household,
R/o. L.L. LO.Ν. Ο-276, Flat No.102,
Bramhan Wadi, Begum Peth,
Hyderabad, Tq. & Dist. Hyderabad,
(Telangana State). ... Respondents.
...
Advocate for Appellant/s : Mr. Amol Joshi.
Advocate for respective Respondents : Mr. S. S. Bharuka.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 22.07.2025
JUDGMENT :
-
1. Heard both sides.
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2. Being aggrieved by judgment and decree dated
23.10.2019 passed in Regular Civil Appeal No.140 of 2016
confirming judgment and decree dated 27.10.2016 passed by
Joint Civil Judge Senior Division, Parbhani in Special Civil Suit
No.28 of 2012, appellant/original defendant has preferred this
second appeal. Respondent Nos.1 to 3 are his real brothers
and 4 to 6 are his married sisters.
3. The contest between the parties is in respect of the house
at CTS. No.14939 situated at Jintur, District Parbhani.
Respondents filed Special Civil Suit No.28 of 2012 for
partition, possession and injunction claiming that the suit
house is joint family property. It was purchased by their father
Vishram Rathod from the income of his business of contractor-
ship. As against that, defence of the appellant was that it was
his self acquired property. He was having independent source
and he had contributed for the purchase of house. A plea of
adverse possession was also raised.
4. Respondents adduced oral evidence of one witness.
appellant adduced oral evidence of four witnesses. Trial Court
decreed the suit holding that it was undivided joint family
property of the parties. The siblings are awarded equal shares
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with further direction of partition by metes and bounds. Lower
Appellate Court confirmed the decree.
5. Learned counsel Mr. Amol Joshi for the appellant
submits that both the Courts below committed error of
jurisdiction in holding that suit house was self acquired
property of Vishram when independent source of income of the
appellant was established. It is further submitted that undue
importance was given to the admission of D.W.2. It is further
submitted that City Survey record was corrected at his instance
and mutation entry No.3313 was cancelled which supports his
case. It is further submitted that cross-examination of P.W.1
and the depositions of D.W.2 and 3 would indicate the
potential of the appellant to purchase house. Lastly, it is
submitted that D.W.1 categorically stated that suit house was
self acquired property of the appellant and in his presence the
transaction took place.
6. The submissions of the appellant are repelled by learned
counsel for the respondents. It is submitted that City Survey
record still shows name of Vishram. Both the Courts below
rightly appreciated vital documents namely plaint at Exh.24 of
Regular Civil Suit No.13 of 2008 and the oral evidence on
record to hold that suit house was purchased by Vishram. It is
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further submitted that appellant failed to produce any tangible
evidence to show that taxes were paid by him or his exclusive
name was recorded. It is submitted that in the written
statement, plea of adverse possession was taken but at the
appellate stage it was waived.
7. I have considered rival submissions of the parties. I have
also gone through paper book. Appellant's and respondents'
father Vishram was having licence of contractor-ship and he
had funds to purchase a house. By registered sale deed dated
04.02.1963 suit house was purchased by him exclusively. It is
the theory of the appellant that the consideration paid by him
but out of respect his name was recorded in the sale deed.
8. When the appellant is coming with a case that suit house
is self acquired property. Burden is on him to make out a case
for that. Only what is brought on record is his business of
contractor-ship. At the most, it can be said that he had
independent source of income but there is no material on
record to show that he was earning sufficiently and was in a
position to purchase the suit house. It has come on record that
he was not having licence.
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9. Following circumstances are indicative that suit house
was purchased exclusively by Vishram.
(i) Vishram was a licensed contractor and sale deed
shows his exclusive name as a purchaser.
(ii) Plaint at Exh.24 of Regular Civil Suit No.13 of
2008 filed by the appellant refers that his father
had purchased the plot and constructed rooms.
(iii) Appellant had no licence of contractor-ship.
(iv) Suit house was purchased in the year 1963 and
appellant claimed to have been associated with
father since 1959. No material available to show
within a short span of four years, appellant was in
position to purchase the suit house.
(v) In 1964 marriage of his sister was performed. Part
of the property was sold by father Vishram.
10. The concurrent findings of facts recorded by Courts
below cannot be said to be perverse or illegal. Depositions of
D.W.2 and 3 though supporting appellant are not sufficient to
make out a case of self acquire property. Neither the admission
of D.W.2 regarding notice of income tax would be decisive. I
find that appellant failed to discharge the burden.
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11. In the written statement, a specific plea of adverse
possession was taken by the appellant which was given up in
the Lower Appellate Court. Appellant has taken inconsistent
stand. Although he had preferred appeal before higher
authority for challenging mutation entry No.3313 and it was
cancelled, that is not sufficient to hold that his name was
exclusively mutated in the record of right. No independent
evidence is adduced by the appellant to show that the suit
house was purchased by him. I find that no substantial
question of law is involved in the appeal. The concurrent
findings of facts do not require any interference. Hence, the
following order :
ORDER
(i) Second Appeal is dismissed.
(ii) After pronouncement of the order, learned counsel
for the appellant seeks continuation of the interim
protection as his client is desirous of approaching
the Apex Court.
(iii) Learned counsel for the respondents opposes the
request.
(iv) As the interim protection is in force, I propose to
extend it for further period of four weeks with a
clarification that after expiry of the said period,
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the same shall stand vacated automatically
without reference to the Court.
(SHAILESH P. BRAHME, J.)
...
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