Bombay High Court
Digambar Rajaram Utarewar And Another vs Vishwanath Digambar Utarewar on 7 May, 2025
2025:BHC-AUG:13631
(1) sa-389-1995
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.389 OF 1995
WITH
CIVIL APPLICATION NO.5807 OF 1995
1. Digambar S/o Rajaram Uttarwar
Age: 75 years, Occu: Agriculture,
and business R/o. Osmannagar,
2. Vijaykumar S/o Digambar Uttarwar,
Age: 35 years, Occu: Agriculture,
and business R/o. Osmannagar at
present Hadgaon, Tq. Hadgaon,
Dist. Nanded. ..Appellants
(Orig. Defendants)
Versus
Vishwanath S/o Digambar Uttarwar,
Age: 44 years, Occu: Business and Agriculture
R/o. Osmannagar at present at
Old Mondha Nanded,
Tq. and Dist. Nanded. ..Respondent
(Orig. Plaintiff)
...
Smt. S. G. Chincholkar h/f Mr. G. M. Chincholkar, Advocate for
Appellants.
Mr. V. V. Bhavthankar, Advocate for Respondent.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 06th MAY, 2025.
JUDGMENT :
-
1. The appellants (original defendants) impugn judgment and
decree dated 26.06.1995 passed by 3rd Additional District Judge,
Nanded in Regular Civil Appeal No.177/1989, thereby reversing
judgment and decree dated 20.04.1989 passed by Civil Judge
Junior Division, Kandhar in Regular Civil Suit No.113/1987.
(2) sa-389-1995
(Hereinafter, parties are referred to by their original status for the
sake of convenience and brevity).
2. The respondent (original plaintiff) instituted Regular Civil
Suit No.113/1987 before Civil Judge, Junior Judge, Kandhar
seeking relief of declaration of ownership and perpetual injunction
against appellants/original defendants contending that suit
properties as specified in plaint are ancestral properties of plaintiff
and defendants. Those were orally partitioned two years prior to
institution of suit. The land Gut Nos.978 and 980 and House
Property Nos.960 and 209 have been allotted to his share in
partition. Since then, he acquired ownership and possession of suit
properties. The plaintiff further contends that oral partition was
reduced into writing on Stamp Paper on 06.04.1987. However,
mutation was not carried in pursuance to oral partition of Hindu
Joint Family of plaintiff and defendants. The mutation entries
continued in the name of defendant nos.1 and 2 in respect of suit
properties, therefore, defendants by taking disadvantage of
mutation record, trying to dispossess him. Hence, he filed suit.
3. The defendants refuted plaintiff's claim and denied theory
oral partition. They denied execution of partition deed dated
06.04.1987. They raised defence that suit is bad for non-joinder of
necessary parties, as two brothers of plaintiff, who were also
members of joint family and coparcener, were not added in suit.
(3) sa-389-1995
Similarly, there is no reference of other properties owned by joint
family.
4. The Trial Court framed issues based on pleadings of parties,
recorded evidence tendered into service and finally dismissed suit
vide judgment and order dated 20.04.1989 holding that plaintiff
failed to prove oral partition and allotment of share, so also
partition deed dated 06.04.1987 is inadmissible for want of
registration. The Trial Court further concluded that plaintiff failed
to prove his exclusive possession in respect of suit properties.
5. Aggrieved plaintiff filed Regular Civil Appeal No.177/1989
before District Court at Nanded. The learned District Judge
reversed decree, thereby accepting case of plaintiff regarding oral
partition and allotment of share. Similarly, recorded findings that
plaintiff proved his exclusive possession and enjoyment of suit
property and granted decree of declaration of ownership and
perpetual injunction in favour of plaintiff.
6. Aggrieved defendants filed present Second Appeal, which has
been admitted vide order dated 19.09.1997, which reads as under:
"Admit, on the grounds (E) and (H). So also the additional
print which needs decision in the present Appeal is, a
document which is on the record (Exh.67), whether it is a
document executed after the actual partition was effected
and therefore to indicate the shares of the parties this
Exh.67 is reduced or, whether till the date of execution of
that document there was no partition, and, as to whether,
(4) sa-389-1995
in that case, considered the said document be read in
evidence, inspite of the same having been not duly
registered and properly stamped"
7. Grounds Nos.(E) and (H) reads thus :
"(E) Whether the unregistered and insufficiently stamped
partition deed dt. 06/04/1987 is admissible to prove the
title of any of the co-parcerners to the properties mentioned
in it.
(H) It may be seen that, as per AIR 1968 S.C. Page 1299, in
absence of registration of partition deed, it is inadmissible
to prove title of any coparceners to any property. In such
circumstances, the Lower Appellate Court was not right in
law, in holding with the help of unregistered partition
deed, that the plaintiff proved his case for declaration of
ownership and injunction."
8. In light of aforesaid question of law, learned Advocates
appearing for respective parties advanced their submissions.
9. Smt. Chincholkar, learned Advocate appearing for appellants
vehemently submits that Trial Court had recorded well reasoned
findings while declining to accept claim of plaintiff as regards to
oral partition. She would further submit that partition deed dated
06.04.1987 was patently inadmissible in evidence for want of
registration and stamp duty. The Appellate Court could not have
relied upon same, even for collateral purpose. In support of her
contentions she relies upon judgment of Supreme Court of India in
(5) sa-389-1995
case of Yellapu Uma Maheswari and another Vs. Buddha
Jagadheeswararao and other1.
10. Per contra, Mr. Bhavthankar, learned Advocate appearing
for respondent/original plaintiff would submit that Appellate Court
considering overall conspectus of matter and referred to partition
deed dated 06.04.1987, for limited purpose and decreed the suit.
According to Mr. Bhavthankar even keeping aside partition deed
dated 06.04.1987, plaintiff has brought on record sufficient
material to prove oral partition, which has been acted upon by
parties. Therefore, he justifies decree passed by Appellate Court.
In support of his submissions, he relies upon observations of
Supreme Court of India in case of Subraya M. N. Vs. Vittala M.
N. and others2 and Thulasidhara and another Vs.
Narayanappa and other3.
11. Having considered submissions advanced by learned
Advocates appearing for respective parties, first and foremost
question that requires consideration in present Appeal is
admissibility of partition deed dated 06.04.1987 and it's effect on
claim set out by plaintiff. The plaintiff asserts that document
dated 06.04.1987 is not partition deed and same is memorandum of
partition, which would not require registration. As such, it could
1 2015 (16) SCC 787.
2 (2016) 8 SCC 705.
3 (2019) 6 SCC 409.
(6) sa-389-1995
be used for collateral purpose in terms of Section 49 of Indian
Registration Act. Even otherwise, same can be used as
corroborative evidence for explaining arrangement made
thereunder and conduct of parties. The family settlement would
operate as complete estoppel to parties to such settlement, even
though it has not been registered.
12. The defendants, however, refutes contentions of plaintiff on
the ground that document is not only unregistered, but it is
unstamped instrument. It can neither be admitted in evidence nor
has acceptability for collateral purpose, until same is impounded. If
plaintiff wanted to rely upon said document, it was open for him to
impound the same with penalty.
13. Careful reading of document Exh.67 shows that it is titled as
consent deed. It merely states that panchas mentioned therein
have been authorized to partition the properties owned by
Digambar S/o Rajaram Uttarwar (defendant no.1) amongst his
sons. It further records that partition deed prepared by them shall
be binding on all the parties. It bears signatures of defendant no.1-
Digambar, plaintiff and his brothers. If aforesaid document is
accepted to be true and correct, theory of plaintiff that there was
oral partition two years prior to institution of suit cannot be
countenanced. If there would have been oral partition in the year
(7) sa-389-1995
1985, there was no need to appoint panchas for effecting partition
amongst Digambar and his sons. The document Exh.67 itself
cannot be read as evidence of oral partition as claimed. Therefore,
document itself cannot be said to be deed of partition, which is
susceptible to registration or payment of stamp duty. The
defendant no.1 admitted his signature. The plaintiff relied upon
said document. Therefore, there is no difficulty in admitting
aforesaid document in evidence. However, as submitted by
plaintiff, this cannot be accepted as evidence of oral partition.
14. In addition to aforesaid evidence, plaintiff relied upon his
oral evidence and evidence of two witnesses. The plaintiff has
further relied upon documents Exh.65 and 66 i.e. letters addressed
by defendant no.1 to plaintiff. The letter dated 01.05.1985 merely
refers intention of parties to effect partition, whereas another letter
Exh.66 refers that dispute is settled because of mediation of
panchas. Careful analysis of aforesaid letters does not put forth
theory of oral partition as claimed. The aforesaid documents
cannot be read as evidence of oral partition.
15. The Trial Court has rightly observed in paragraph no.12 of
judgment that from contents of said letters inference can be drawn
that in the year 1987 dispute has been settled through Mediator
and plaintiff shall come to Osmannagar for further needful acts.
Therefore, theory of oral partition put forth by plaintiff does not get
(8) sa-389-1995
support. The plaintiff relied upon evidence of Nandkumar
Nagnath, Exh.68, who is scribe of consent deed Exh.67, who states
that panchas were authorized to effect partition. He does not
support theory of previous partition.
16. Admittedly, there was no mutation in pursuance to alleged
oral partition of the year 1985. The suit lands were standing in the
name of defendant nos.1 and 2. The plaintiff failed to prove that he
was put in possession of agriculture lands and he was cultivating
the same through his servant Sambha. Evidence of said Sambha is
not recorded. Another witness Mr. Rajesaheb, alleged tenant in
Grampanchayat House No.209 examined to prove that plaintiff is
receiving rent from him and he is in possession of property as
tenant. However, said witness admitted that he do not know
whether plaintiff is receiving rent for himself or on behalf of father.
17. The Appellate Court gave reference to plaint in Regular Civil
Suit No.173/1988 that was instituted by one of brother of plaintiff,
who is not party to present suit. Relying upon contents of said
plaint, theory of oral partition is sought to be put forth. However,
plaintiff in that suit i.e. Rajesaheb has not stepped into witness
box. The contents of plaint, which is filed in the year 1988
stipulates about oral partition effected 10 years prior to institution
of suit, which relates back to 1978. Therefore, even by accepting
contents of plaint in Regular Civil Suit No.173/1988, theory of oral
(9) sa-389-1995
partition in the year 1985 as claimed by plaintiff (two years prior to
institution of suit) cannot be countenanced.
18. In result, this Court holds that plaintiff has miserably failed
to prove his ownership and possession over the suit property,
particularly on the basis of oral partition. Therefore, findings
recorded by Appellate Court cannot be countenanced, whereas
findings recorded by Trial Court appears to be in tune with oral
and documentary evidence on record. Hence, following order:
ORDER
a. Second Appeal is allowed.
b. The judgment and decree dated 26.06.1995 passed by 3 rd
Additional District Judge, Nanded in Regular Civil Appeal
No.177/1989 is quashed and set aside and judgment and decree
dated 20.04.1989 passed by Civil Judge Junior Division, Kandhar
in Regular Civil Suit No.113/1987 stands restored.
c. In view of observations made in Second Appeal, pending Civil
Application stands disposed of.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/May-2025
