[Cites 18, Cited by 0]
Bombay High Court
Bhagwanrao Shankarrao Chinchalkar ... vs The Tahsildar And Ors on 6 January, 2026
2026:BHC-AUG:114
1 SA.242-12 & ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.242 OF 2012
WITH
CIVIL APPLICATION NO.11689 OF 2013
IN SA/242/2012
Bhagwanrao s/o Shankarrao Chinchalkar
(Died) through L.Rs.
1. Anusayabai w/o Bhagwanrao Dhawale,
Age 67 years, Occu: Household,
2. Godavaribai w/o Raosaheb Lamkanikar,
Age Major, Occu: Household,
3. Chandrakant s/o Bhagwanrrao Dhawal,
Age 44 years, Occu: Business,
4. Suryakant s/o Bhagwanrao Dhawal,
Age 47 years, Occu: Business,
All R/o. Bhokar, Dist. Nanded
5. Kalpana w/o Jagdish Puyed,
Age 36 years, Occu: Household. ... Appellants
(Orig. Plaintiffs)
VERSUS
1. The Tahsildar, Tahsil Office,
Bhokar, Tq. Bhokar, Dist. Nanded.
2. Shankarrao s/o Bhujangrao Patil
Chinchalkar - Deleted.
3. Pundlik s/o Shankarrao Chinchalkar,
Died Through his LR's.
3A. Aasha Pundlikrao Chinchalkar,
Age: 65 years, Occu: Housewife.
2 SA.242-12 & ors.odt
3B. Vinod Pundlikrao Chinchalkar,
Age: 44 years, Occu: Business.
3C. Madhavi Umesh Durge,
Age: 42 years, Occu: Doctor.
3D. Vaishali Ravi Jadhav,
Age: 40 years, Occu: Housewife.
3E. Priyanka Sachin Pawar,
Age: 38 years, Occu: Housewife.
3A to 3E All R/o. In front of
Panchayat Samitee, Bhokar,
Tq. Bhokar, Dist: Nanded.
4. Subhash s/o Narayanrao Patil,
Age: 50 years, Occu: Agril.,
R/o Bhokar, Tq. Bhokar,
Dist. Nanded. ... Respondents
(Ori. Defts.)
SECOND APPEAL NO.782 OF 2015
Bhagwanrao S/o Shankarrao Chinchalkar,
(Died) Through L.Rs.
1. Anusayabai W/o Bhagwanrao Dhawale,
Age: 67 years, Occ: Household,
2. Godavaribai W/o Raosaheb Lamkanikar,
Age: Major, Occ: Household,
3. Chandrakant S/o Bhagwanrao Dhawal,
Age: 44 years, Occ: Business,
4. Suryakant S/o Bhagwanrao Dhawale,
Age: 47 years, Occ: Business,
All R/o Bhokar, Dist. Nanded.
3 SA.242-12 & ors.odt
5. Kalpana W/o Jagdish Puyed,
Age: 36 years, Occ: Household,
R/o Nanded. ... Appellants
(Ori. Plaintiffs)
Versus
1. The Tahsildar,
Tahsil Office, Bhokar,
Tq. Bhokar, Dist. Nanded.
2. Shankarrao S/o Bhujangrao Patil,
(Died) hence deleted.
3. Pundlik S/o Shankarrao Chinchalkar,
(Died) Through L.Rs.
3A. Aasha Pundlikrao Chinchalkar,
Age: 65 years, Occu: Housewife,
3B. Vinod Punilikrao Chinchalkar,
Age: 44 years, Occu: Business,
3C. Madhavi Umesh Durge,
Age: 42 years, Occu: Doctor.
3D. Vaishali Ravi Jadhav.
Age: 40 years, Occu: Housewife,
3E. Priyanka Sachin Pawar,
Age: 38 years, Occu: Housewife.
3A to 3E All R/o. in front of
Panchayat Samitee, Bhokar,
Tq. Bhokar, Dist: Nanded.
4. Subhash S/o Narayanrao Patil,
Age: 50 years, Occ: Agri.,
R/o Bhokar, Tq. Bhokar,
Dist. Nanded. ... Respondents
(Ori. Defs.)
4 SA.242-12 & ors.odt
...
Advocate for Appellants : Mr. R. N. Dhorde (Senior Counsel)
i/b Mr. V. R. Dhorde.
AGP for Respondent/s-State : Mrs. M. N. Ghanekar.
Advocate for Respondent No.4 : Mr. V. D. Hon (Senior Counsel)
i/b Mr. A. V. Hon.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 08.12.2025
PRONOUNCED ON : 06.01.2026
JUDGMENT :
1. Heard finally with consent of both the sides.
2. Both second appeals are filed by original plaintiff against
the judgment and decree passed by Lower Appellate Court
reversing the decree passed by the Trial Court. Second Appeal
No.782 of 2015 is arising out of the decree passed in counter
claim in favour of respondent No.4. The parties are referred to
by their original status in the Trial Court. This Court is
referring to the paper book of Second Appeal No.242 of 2012.
3. Regular Civil Suit No.46 of 2010 (Old 199 of 2000) was
filed by the appellant/plaintiff for declaration and injunction in
respect of 41 R., of land of Gut No.499 situated at Chinchala.
The defendant Nos.2 to 4 contested the suit and also filed
5 SA.242-12 & ors.odt
counter claim for declaration and injunction. Trial Court
decreed the suit and dismissed counter claim vide judgment
dated 19.03.2011. Being aggrieved, defendant No.4 preferred
Regular Civil Appeal No.14 of 2011. Lower Appellate Court
non-suited the plaintiff and allowed the counter claim, by
reversing the decree of the Trial Court vide judgment dated
03.03.2012.
4. The relationship is undisputed. Plaintiff and defendant
No.3 are real brothers and defendant No.2 Shankarrao is their
father. Defendant No.4 is the purchaser of the suit property.
5. It is the case of the plaintiff that defendant Nos.2, 3 and
himself formed a joint Hindu family which was having various
immovable properties at village Chinchala, Bhokar and
Nanded. A partition was effected by unregistered partition
deed on 10.09.1984 amongst them. The properties were
distributed by metes and bounds and they were in possession
of the respective shares after the partition. The suit land i.e.
Gut No.499, Survey No.22, 51, house property at Chinchala,
Bhokar and CL - III license were allotted to the plaintiff.
Defendant No.3 Pundlik was allotted survey Nos.5, 6 part of 22
6 SA.242-12 & ors.odt
at village Chinchala, house property at Chinchala and Bhokar.
Defendant No.2 Shankarrao was also allotted Survey No.20
which was to be devolved upon the sons after his death.
6. It is stated by the plaintiff that suit land was in his
possession and mutation entry No.485 was also effected in his
name. His name was recorded in 7/12 extracts also. It is
contended that he started a poultry business by incurring loan
from the bank. The suit land is stated to be mortgaged by him.
It is further contended that the loan was repaid by him.
Defendant Nos.2 and 3 are stated to have obstructed him in
running the poultry form. It is further contended that
defendant No.3 executed sale deed on 25.02.2000 in favour of
defendant No.4. Hence present suit was filed by him.
7. Defendant No.1 contested the suit by filing written
statement contending that it was a dispute amongst plaintiff
and defendant Nos.2 to 4. It is further contended that the
factum of partition was reported to the revenue authority and
mutation entry was also effected.
8. Defendant Nos.2 to 4 contested the suit on the ground
7 SA.242-12 & ors.odt
that defendant No.3 was owner of the suit land as it was
purchased exclusively in his name vide sale deed dated
01.12.1979. It is further contended that defendant No.3 sold
the suit land to defendant No.4 vide registered sale deed dated
25.02.2000 and since then defendant No.4 is in possession of
it. It is further contended that defendant No.4 is the bonafide
purchaser for value. They also raised a counter claim that
plaintiff was obstructing the possession. Hence, the relief of
declaration and injunction was solicited against the plaintiff.
9. Plaintiff filed written statement to the counter claim and
denied the pleadings and the prayers.
10. Plaintiff adduced oral evidence of three witnesses
including himself. The defendants adduced oral evidence of
three witnesses including evidence of defendant Nos.3 and 4.
The unregistered partition deed is marked at Exh.163. The
sale deed dated 01.12.1979 is marked at Exh.230. The sale
deed dated 25.02.2000 is marked at Exh.227. The mutation
entry No.485 recording name of the plaintiff is marked at
Exh.143.
8 SA.242-12 & ors.odt
11. In the Trial Court, defendant No.3 resiled from his
pleadings and supported the plaintiff. He was cross-examined
by the defendant No.4. Unregistered partition deed was sought
to be impounded by the plaintiff by tendering application. It
was contested and after hearing both the sides' application was
allowed and document was referred for impounding. After
following due process of law, the plaintiff paid deficit stamp fee
and penalty amounting of Rs.4,672/-.
12. The matter was contested by the parties on the revenue
side also. Tahsildar was approached by the plaintiff for
recording his name against the suit land. By order dated
05.03.1992 his name was recorded. The order was challenged
before Higher Forum and the dispute is still pending.
13. During the course of hearing before the Trial Court, the
application Exh.47 was submitted by parties for compromising
the suit. The settlement was not materialized. This is the broad
outline of the controversy involved in the matter.
14. Following substantial questions of law are formulated by
this Court in both the appeals :
9 SA.242-12 & ors.odt
i) Whether the plaintiff in the present matter proves
that vendor of the counter claimant had no legal title and
could not have transferred the property to the counter
claimant ?
ii) Whether the partition in the absence of unregistered
partition-deed is inadmissible ?
iii) Whether the Appellate Court has misread and
misconstrued the provision of the Indian Registration Act in
holding that the partition deed is required to be registered
and unless and until it is registered, it is inadmissible in the
evidence ?
iv) Whether in view of the judgments reported in [AIR
1976 SC 807, [AIR 2004 SC 4130] and [2005 AIR SCW
5650), the Appellate Court has erroneously held that the
partition deed is required to be registered otherwise, it is
inadmissible in the evidence?
v) Whether, the Appellate Court has ignored the
documentary evidence on record namely, the document at
Exhibit-184 the application to the Land Development Bank
in the year 1994-95 for grant of loan to the Poultry Farm by
the Appellants/Plaintiffs as well as the report of the
Agricultural Officer of the Bank at Exhibit-186 and the
mortgage deed executed at Exhibit-181 by the Plaintiffs/
Appellants in favour of the Land Development Bank for
taking loan for Poultry Farm and actually running the
Poultry in the said land Survey No.22a and Block No.449
and has erroneously held that there was no partition and
10 SA.242-12 & ors.odt
same was not acted upon and the Appellants were not in
possession of the property ?
Additional substantial Question of law in Second Appeal
No. 242/2012 required to be framed.
vi) Whether the Appellate Court has erroneously
allowed the appeal no.14/2011 filed by the Def. No.4 when
judgment and decree dated 19.03.2011 passed in RCS
No.46/2010 [old RCS No.199/2000] i.e. suit which is not
challenged by the Def. no.3 Pundlik transferor and the same
has become final from whom it has been transferred to Def.
No.4.
vii) Whether the in view of fact that entire dispute was
regarding the Gut No.499 as claimed by the Def. No.2 to 4
to be self acquired property of the Def No. 3 without
framing issue and without proving the same and Appellate
Court has erroneously allowed the appeal by shifting the
burden on the plaintiff when defendant has claimed self
acquired property."
15. Learned senior counsel Mr. R. N. Dhorde would submit
that the suit land was purchased from the nucleus of the joint
family and it was not exclusive asset of defendant No.3. It is
submitted that the partition deed Exh.163 though unregistered
one is admissible in evidence and it has been acted upon by the
parties. It is submitted that suit land was given to the plaintiff
and he was running poultry business and incurred financial
11 SA.242-12 & ors.odt
assistance also for the same. Defendant No.3 was also allotted
properties of the joint family. The admissibility of Exh.163
cannot be questioned due to its impounding and the order
passed below Exh.153. It is further submitted that suit land
was mutated in the revenue record in the name of plaintiff and
that is still in possession of his heirs. It is further submitted that
appeal preferred by defendant No.4 before the Lower Appellate
Court was not tenable in the absence of any challenge to the
decree passed by the Trial Court by defendant No.3. It is
further submitted that Lower Appellate Court committed grave
error of jurisdiction in overlooking the settlement at Exh.47,
the statement Exh.153, application Exh.158 and order passed
thereon. He would further submit that the defendant No.4
cannot be said to be the bonafide purchaser for want of due
inquiry into the title of defendant No.3.
16. Per contra, learned senior counsel Mr. Hon submits that
the factum of partition has not been established because
partition deed was not registered one and it is rightly discarded
by the appellate court. The partition deed is absurd document
and at the most, it could be said to be agreement between the
12 SA.242-12 & ors.odt
parties. The plaintiff ought to have filed suit for specific
performance of contract instead of declaration and injunction.
It is submitted that by joint written statement defendant Nos.2
and 3 contested the claim of the plaintiff. They deposed against
the plaintiff which is rightly appreciated by the Lower
Appellate Court. It is further submitted that respondent No.4
purchased suit land vide Exh.227 and is in possession.
Therefore, injunction was not granted in favour of the plaintiff
in the Courts below. It is further submitted that the suit is
defective because sale deed dated 25.02.2000, Exhibit 227, has
not been challenged and no relief is solicited.
17. Learned counsel would further emphasis on the facts
that plaintiff suppressed material facts regarding running of
the liquor business by defendant No.3 and RCS.No.44 of 1999
preferred by the plaintiff. It is further contended that the
partition as pleaded by the plaintiff had never taken place
because defendant No.3 was running liquor business. He was
exclusive owner of the suit land. He transferred it to defendant
No.4 along with possession. The sale deed was signed by the
plaintiff and defendant No.2. Hence, plaintiff is estopped from
13 SA.242-12 & ors.odt
setting up any claim against it. The evidence of plaintiff is
shattered in cross examination of P.W.3. The sale deed at
Exh.230 has been tampered by the plaintiff to show that
Rs.6,000/- was paid by him. It is submitted that Lower
Appellate Court is justified in reversing the decree passed by
the Trial Court in the suit as well as the counter claim. It is
further submitted that as the defendant Nos.2 to 4 had filed
joint written statement and lateron defendant Nos.2 and 3 did
not support defendant No.4. Therefore, appeal was filed only
by defendant No.4 which was rightly entertained.
18. Though there are various substantial questions of law
framed in the second appeal, the fulcrum of the controversy is
as to whether plaintiff is the owner of the suit land as a fall out
of the partition between the parties or it is defendant No.3.
The consequential issue is as to the validity of the title of
defendant No.4 vide sale deed dated 25.02.2000.
19. At the outset it is necessary to clarify certain aspects of
the matter, which are not relevant to decide ownership over
the suit land. The parties are litigating on the revenue side as
well as for getting liquor license CL - III or its business. Those
14 SA.242-12 & ors.odt
decisions are not helpful to decide title of the suit land. Those
have limited role in the present matters. The revenue entries
are for fiscal purposes and would not confer title. It is informed
that Writ Petition No.2668 of 2007 preferred by the defendant
No.4 is still pending. The title over the suit land would be
decided in the present second appeals.
20. It is also necessary to clarify that the orders passed in the
proceedings under Order XXXIX Rule 1 and 2 of the C. P. C. are
not decisive. Those are helpful to the extent of possession only.
The factum of partition and admissibility of partition deed
Exhibit 163 will have to be decided in the present second
appeals. The observations of the learned Single Judge in the
order dated 08th July, 1999 passed in Civil Revision Application
No. 441 of 1999 are prima facie in nature and would not bind
this Court. Those cannot be over emphasized.
21. I have gone through partition deed dated 10.09.1984. A
partition by metes and bounds was effected by the document.
All three members of the family were allotted assets of the joint
family. Neither it is a memorandum of partition, nor an
agreement amongst the parties as such. Plaintiff is allotted gut
15 SA.242-12 & ors.odt
No.499, Survey Nos.22, 51 and house properties, etc. The
defendant No.3 is also allotted Survey Nos.05, 06, 22 and
house properties, etc. I am of the considered view that its a
document requiring compulsory registration and covered by
Section 17(1)(b) of the Registration Act.
22. It is rightly submitted by learned senior counsel Mr.
Dhorde relying upon Five Judges Bench judgment of the
Supreme Court in the case of V. N. Sarin Vs. Ajit Kumar Poplai
and another reported in AIR 1966 SC 432 that partition is not
a transfer. In the present case, the controversy pertains to the
proof of partition which is effected by unregistered instrument.
By implication of Section 49 of the Registration Act, instrument
is inadmissible for want of registration. In the Trial Court,
plaintiff had submitted application Exhibit 153 seeking
impounding of partition deed Exhibit 163. The document was
referred for impounding. The plaintiff thereafter paid stamp
with penalty, amounting to Rs.4,672/-. The plaintiff vide
application Exh.158 solicited exhibiting of such impounded
document. It was allowed by reasoned order dated 13.03.2006.
23. In view of the law laid down by the Supreme Court in
16 SA.242-12 & ors.odt
the case of Kale and others Vs. Deputy Director of
Consolidation and others reported in AIR 1976 SC 807 ,
registration of partition deed Exh.163 was mandatory.
However, document cannot be discarded altogether because it
is being impounded. For collateral purpose like severance of
status or the nature of subsequent possession, it can be used.
My attention is adverted to following judgments in this
regard :
(i) Yellappu Uma Maheswari Vs. Budha
Jagadheeswararao reported in 2015 AIR SCW
6184.
(ii) Sita Ram Bhama Vs. Ramvatar Bhama reported in
AIR 2018 SC 2479.
(iii) P. Anjanappa (D) by L.Rs. Vs. A. P. Nanjundappa
and others in Civil Appeal No.3934 of 2006, which
is of three Judges Bench decided on 06.11.2025.
24. Considering principles laid down in first two judgments
and in view of impounding of Exh.163 in the case at hand, I
am of the considered view that the partition deed is admissible
in evidence for the collateral purpose. Last judgment of the
Supreme Court of Three Judges Bench also lays down as to
17 SA.242-12 & ors.odt
what would be the collateral purpose. In that case, the
document styled as Palupatti (Exhibit D-17), which is in the
form of partition is held to be admissible and reliable for
collateral purpose, though it was not being registered. It is
relevant to quote following extract :
"8.9. We therefore hold that Ex.D-17, read with Ex.D-17(a), is
admissible and reliable for the collateral purposes of proving
that, on and from 11.02.1972, there was severance of joint
status between plaintiff no.1 and defendant no.5 and that each
thereafter held and enjoyed separately the properties allotted
under Ex.D-17(a). We clarify that Ex.D-17 is not treated as a
conveyance that creates or extinguishes rights by itself. Our
conclusion rests on the severance of status and on the
character of subsequent possession and enjoyment as borne out
by the writing and the long course of conduct."
25. In this regard my attention is adverted to judgment of
the Supreme Court in the matter of Vinod Infra Developers
Ltd. Vs. Mahaveer Lunia and others reported in 2025 SCC
OnLine SC 1208 by the learned Senior Counsel Mr. Hon. In
that case Supreme Court was dealing with unregistered
agreement to sale and the objection was raised regarding its
admissibility. In those context, law is discussed and
observations are made in para No.9 of the judgment. Supreme
Court inter alia referred to principles laid down in the matter
18 SA.242-12 & ors.odt
of K. B. Saha and Sons (P) Ltd. Vs. Development Consultant
Pvt. Ltd. reported in 2008 (8) SCC 564. This judgment will not
help defendant No.4 because facts are distinguishable from the
case of hand. It did not refer to judgment of Yellappu and Sita
Ram. In the matter at hand partition deed is impounded one,
though it is unregistered and it is admissible for collateral
purposes.
26. Partition deed has been impounded and additional
stamp duty of Rs.4,672/- is paid by the plaintiff. P.W. Nos. 1
and 2 are examined to prove the partition deed. The contents
and the execution are proved. The permission was granted for
exhibiting the document by order dated 13.03.2006 passed
below Exhibit 158, which was not challenged by the
respondents/defendants. I find no absurdity qua the persons
as well as assets mentioned therein. The properties and the
allottees are candidly identifiable by reading the document.
The suit land is allotted to the plaintiff.
27. The partition deed is exhibited in the Trial Court after
considering the oral evidence as well as order below Exhibit
19 SA.242-12 & ors.odt
158. No timely objection was raised by the defendants. It is
impermissible for them to question the instrument in the wake
of Section 36 of the Indian Stamp Act. The judgment of the
Supreme Court in the case of Javer Chand and others Vs.
Pukhraj Surana reported in AIR 1961 SC 1655 is rightly cited
by the plaintiff. I find that partition deed Exhibit 163 is
admissible in evidence, albeit for collateral purposes. The
substantial question of law No.(ii) is answered accordingly.
28. Learned senior counsel Mr. Hon has relied upon the
following judgments :
(i) Kale and others Vs. Deputy Director of
Consolidation and others reported in (1976) 3
SCC 119.
(ii) K. G. Shivilingappa (D) through L.Rs. and others
Vs. G. S. Eswarappa and others reported in
(2004) 12 SCC 189.
(iii) Anteshwar Anand Vs. Virender Mohan Singh and
others reported in (2006) 1 SCC 148.
(iv) K. Arumuga Vehaiah Vs. P. R. Ramasamy and
another reported in (2022) 3 SCC 757.
20 SA.242-12 & ors.odt
29. The ratio laid down in the above judgments would
indicate that the partition deed in question required
compulsory registration as it is covered by Section 17(1)(b). It
is rightly contended that the document in question makes the
partition by metes and bounds in various immovable properties
of the joint family and in the absence of registration, the
document is inadmissible in evidence. However, the above
judgments would not cover a case of subsequent impounding
of document. Hence, relying upon the judgments cited above,
the document in question cannot be discarded altogether.
Hence, the substantial questions of law at Sr. No. (iii) and (iv)
will have to be answered in favour of the plaintiff.
30. Having observed that partition deed can be used for
collateral purpose, the burden is upon the plaintiff to show that
suit land was allotted to him. It was a case of the defendant
No.3 before the Trial Court that suit land was purchased by
him exclusively vide registered sale deed dated 01.12.1979,
Exhibit 230. It was mentioned in the sale deed that out of total
consideration of Rs.8,500/-, Rs.2,500/- was already received
from the defendant No.3 and Rs.6,000/- was paid by the
21 SA.242-12 & ors.odt
plaintiff, albeit, plaintiff's name is over written by scoring the
defendant No.3. The endorsement on the said sale deed before
the Sub Registrar also indicates payment of Rs.6,000/- through
plaintiff at the time of registration. It is not case of the plaintiff
that the suit land is being purchased exclusively by him. His
theory is that it was purchased in the name of defendant No. 3
- Pundalik, but from the nucleus of undivided joint family. The
partition deed Exhibit 163 shows that before partition there
were number of agricultural lands, plots, houses and a liquor
business which would constitute the nucleus to purchase the
suit land. The parties are unanimous that those were joint
family properties.
31. Defendant No.3 contested the suit contending that suit
land was exclusively purchased by him on 01.12.1979 vide sale
deed at Exhibit 230. He deposed as D.W. No.2. His pleadings
and deposition do not disclose the source of income. Mere
statement that from his independent income the suit land was
purchased, is not sufficient. His further conduct by tendering
pursis at Exhibit 47 and application Exhibit 153 would
corroborate plaintiff's case that suit land was purchased by
22 SA.242-12 & ors.odt
joint family, in the name of defendant No.3. The plaintiff is
successful in making out a case that there was sufficient
nucleus of the joint family to purchase the suit land. Learned
counsel Mr. Dhorde has adverted my attention to the
judgments of the Supreme Court in the matters of Adiveppa
and others Vs. Bhimappa and another reported in AIR 2017 SC
4465 and Kirpal Kaur Vs. Jitender Pal Singh and others
reported in AIR 2015 SC 2967. As per ratio laid down therein,
the burden was upon defendant No.3 to prove that the suit
land is self acquired property, which is not discharged by him.
Due to the sale deed Exhibit 230 burden was shifted to the
plaintiff. The plaintiff discharged it adequately by leading
evidence to hold that the suit land is a joint family property.
The substantial question of law No.(i) is answered in favour of
plaintiff.
32. The subsequent cross examination of defendant No.3
discloses the admissions supporting the plaintiff's case. He was
cross examined by the defendant No.4 for being retracted from
earlier depositions. But interestingly, his earlier cross
examination would support the plaintiff's theory of partition.
23 SA.242-12 & ors.odt
The lower Appellate Court committed error of jurisdiction in
holding that the plaintiff failed to prove that suit land is joint
family property. I find that defendant No.3 is unable to prove
that the suit land is self acquired property. I am of considered
view that a specific issue casting burden on defendant No.3
was not framed but parties have led evidence and understood
each others case. No prejudice is caused to the plaintiff. The
subsequent question of law No.(vii) is answered against
defendants.
33. Defendant No.3 never challenged partition deed Exhibit
163. If he was the exclusive owner of the suit land, he would
not have permitted the plaintiff to conduct business in it and to
incur loan mortgaging it. Though he supported the defendant
No.4 initially, his subsequent cross examination conducted on
16.09.2000, attempt to settle the matter before the Trial Court
by submitting pursis at Exhibit 47 would indicate that suit land
was joint family property and it was subjected to partition.
34. The plaintiff has led oral and documentary evidence to
show that the suit land was allotted to him in partition and
24 SA.242-12 & ors.odt
that was exclusively in his possession. The partition deed
Exhibit 163 can be used only to the extent that there was
severance of the status and possession of the parties over the
assets. The clinching material has been placed on record by
the plaintiff in this regard, which is as follows :
(i) Consent deed dated 04.06.1991 at Exhibit
154 executed by the defendant No.3.
(ii) Order dated 05.03.1992 passed by the
Tahsildar for mutating suit land in the name
of the plaintiff.
(iii) Mutation entry No. 485, Exhibit 143.
(iv) Loan application Exhibit 184 disclosing suit
land and other immovable properties offered
for security.
(v) Primary inspection report before disbursing
loan, inspecting land Gut No.499.
(vi) Disbursement of loan for poultry business
evidenced by disbursement receipts Exhibit
189 and 190.
25 SA.242-12 & ors.odt
(vii) Certificate of Assistant Director Exhibit 145.
(viii) Lease deed dated 18.03.1994 executed by
the plaintiff.
(ix) Mortgage deed dated 18.03.1994 disclosing
suit land.
(x) Public notice and the declaration for selling
of the suit land.
(xi) Auction of the suit land scheduled on
22.01.2004.
(xii) Application by the plaintiff to stay auction
Exhibit 148 and order thereon.
(xiii) Receipt of Rs.1,00,000/- deposited by the
plaintiff to redeem the suit land i. e. Exhibit
149.
35. Above documents unequivocally indicate that suit land
was allotted to the plaintiff. It was in his exclusive possession.
He was running business of Bhavani Poultry. He redeemed the
suit land by paying Rs.1,00,000/-. The above material has not
been challenged by the defendants. The lower Appellate Court
26 SA.242-12 & ors.odt
discarded the material without any valid reason, which
amounts to perversity.
36. The Lower Appellate Court observed that plaintiff was
unable to prove his title, which cannot stand to the reasons.
The defendant No.3 never objected the plaintiff while
mortgaging the suit land. The Gram Panchayat assessment list
at Exhibit Nos.141 and 143 corroborate theory of partition and
allotment of house properties to the plaintiff as well as
defendant No.3. The certificate issued by the village
development officer also corroborates the partition. The
findings recorded by the lower Appellate Court are totally
unsustainable. The plaintiff has adequately proved that
partition effected on 10.09.1984 has been acted upon not only
by the plaintiff, but the defendant No.3 also. He was
beneficiary of the partition. The substantial question of law No.
(v) needs to be answered in favour of the plaintiff.
37. To answer the substantial questions of law No.(vi) it is
necessary to take into account the development occurred
during the course of trial. The defendant Nos. 2 to 4 had filed
27 SA.242-12 & ors.odt
joint written statement contesting the plaint. The plaintiff,
defendant Nos.2 and 3 submitted pursis. Before the Tahsildar
application Exhibit 153 was submitted admitting the partition
and allotment of suit land to the plaintiff. The defendant No.3
supported plaintiff's claim in the latter part of his cross
examination. Defendant No.4 was permitted to cross examine
him. By the time the proceedings were concluded in the Trial
Court, defendant Nos.2 and 3 were supporting the plaintiff.
The suit was decreed. In this backdrop the defendant No.4
was the only aggrieved person who could challenge the decree
of Trial Court.
38. The defendant No.4 claimed to be bonafide purchaser
vide sale deed at Exhibit 226. He had paid consideration
hence he was bound to protect his alleged title and possession.
The interest of the defendant Nos.2 to 4 was different. The
defendant No.3 had changed his stand. Hence appeal preferred
by defendant No.4 cannot be faulted.
39. Learned senior counsel Mr. Hon has relied upon
judgment of Chaya and others Vs. Bapusaheb and others
28 SA.242-12 & ors.odt
reported in (1994) 2 SCC 41. I have gone through paragraph
Nos.14 to 16 of the judgment which narrates power of the
Appellate Court. The ratio laid down in above judgment
supports the respondents that Appellate Court is justified in
entertaining appeal. The substantial question of law in this
regard is answered in favour of the defendant No.4.
40. It has been brought to the notice of this Court that lower
Appellate Court did not take into consideration following vital
aspects of the matter :
(a) Pursis dated 24.08.2000, Exhibit 47.
(b) Application Exhibit 153 dated 11.10.2000.
(c) Application Exhibit 158 and order dated
13.03.2006.
41. The lower Appellate Court was obliged to deal with all
aspects of the matter while reversing the judgment. The above
documents and the probative value is totally over looked.
There is no discussion for the material on record. The
jurisdiction exercised by the lower Appellate Court is against
the law laid down by the Supreme Court in the matter of
29 SA.242-12 & ors.odt
Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3
SCC 179. The plaintiff is right in relying upon the judgment of
the Apex Court in the case of Malluru Mallappa (D) through
Legal Representatives Vs. Kuruvathappa and others reported in
(2020) 4 SCC 313. The judgment and decree passed by the
lower Appellate Court is unsustainable.
42. The defendant No.3 had no title to alienate the suit land
vide sale deed dated 25.02.2000. The suit land was allotted to
the plaintiff vide partition deed dated 10.09.1984. Hence
alienation in favour of the defendant No. 4 is void. It was not
necessary for the plaintiff to claim any specific relief against
the sale deed Exhibit 227. No proper inquiry was conducted
by defendant No.4 before purchasing the suit land. The 7/12
extract was showing plaintiff's name. The suit cannot be said
to be defective for want of specific prayer in respect of sale
deed Exhibit 227. The suit land was allotted to the plaintiff and
he did not sign Exhibit 227. Reliance is placed on the
judgment of Supreme Court in the matter of Thulasidhara Vs.
Narayanappa reported in AIR Online 2019 SC 262. I have
gone through para No.9.2 of the judgment. The judgment
30 SA.242-12 & ors.odt
supports the plaintiff's claim.
43. The 7/12 extract shows name of the heirs of the
deceased plaintiff. The plaintiff and his heirs appear to be in
possession of the suit land and that is the reason why no relief
of possession is solicited.
44. The analysis of above reasoning is that plaintiff would
succeed in the matter. The judgment and decree passed by the
lower Appellate Court is liable to be quashed. Accordingly, I
have answered the substantial question of law. I, therefore,
pass following order.
ORDER
(i) Second appeals are allowed.
(ii) The impugned judgment and decree dated
03.03.2012 passed in R.C.A. No.14 of 2011 by the
District Judge - 1, Bhokar is quashed and set
aside.
(iii) The judgment and decree dated 19.03.2011
passed by the Civil Judge Senior Division, Bhokar
31 SA.242-12 & ors.odt
in R.C.S. No.46 of 2010 (Old R.C.S. No. 199 of
2000) shall stand restored and hereby confirmed.
(iv) Needless to mention that counter claim shall stand
dismissed.
(v) Decree be drawn up accordingly.
(vi) There shall be no order as to costs.
(vii) In view of disposal of second appeals, pending
civil application does not survive. Civil application
as such is disposed of.
(SHAILESH P. BRAHME, J.)
...
45. After pronouncement of judgment, the learned counsel
for the respondents prays for continuation of the status quo,
which is operating in the appeals till today.
46. The request is opposed by the learned counsel for the
appellants.
32 SA.242-12 & ors.odt
47. As the order of status quo is operating till today, I deem
it appropriate to continue it for further eight (8) weeks. After
the period, the same shall stand vacated automatically.
(SHAILESH P. BRAHME, J.)
...
vmk/-
