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2022 DIGILAW 833 (BOM)

Laxmibai W/o. Atmaram Kewate v. Anjanabai

2022-03-22

ANIL SATYAVIJAY KILOR

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JUDGMENT : Anil Satyavijay Kilor, J. 1. In this appeal, the challenge is raised to the judgment and decree dated 14/11/2017 passed by District Judge-13, Nagpur dismissing the Regular Civil Appeal No. 17 of 2014, arising out of judgment and decree passed by Civil Judge Junior Division, Ramtek in Regular Civil Suit No. 231 of 2001, decreeing the suit for partition and separate possession. 2. It is the case of the plaintiffs that the plaintiff Nos. 1 to 5 were driven out from the house by defendant No. 1 approximately prior to 13 to 14 years of filing of the suit and the defendant No. 1 had kept a mistress by name Smt. Mayabai (defendant No. 2) and is residing with her in the ancestral house at village Bori. It is the case of the plaintiffs that one Kawadu and Sakhrabai had a son Vitthal (defendant No. 1) and daughter Laxmibai (defendant No. 3/appellant). Shri Kawadu died prior to 20 years and Sakhrabai expired prior to 15 years of filing of the suit. Late Kawadu had left behind him suit properties i.e. two houses at Bori and field properties at village Ghoti, totally admeasuring 3.75 Hectares. 3. It is the further case of the plaintiffs that field Survey No. 134/1 is recorded in the name of defendant No. 1. However, it is in possession of the plaintiff No. 1, while field Survey No. 134/2 is recorded in the name of defendant No. 3 and she is in possession of the said suit field. Whereas, field Survey No. 23 is recorded in the name of defendant No. 2 and is jointly cultivated and enjoyed by defendant Nos. 1 and 2. After the demise of Kawadu, the suit field came to defendant Nos. 1 and 3 and Smt. Sakhrabai as his legal heirs. Upon the death of Sakhrabai the defendant Nos. 1 and 3 continued to be recorded as owners of the suit fields, jointly. 4. It is further stated that after death of Sakhrabai defendant No. 1-Vitthal started ill-treating plaintiff No. 1 and kept the defendant No. 2 as his mistress and as such the plaintiff No. 1 started residing separately with plaintiff Nos. 2 to 5 in one of the ancestral house properties. It is further pleaded that as it was not possible for maintaining herself and the plaintiff Nos. 2 to 5 in one of the ancestral house properties. It is further pleaded that as it was not possible for maintaining herself and the plaintiff Nos. 2 to 5, out of meager income earned from the labour work, she filed an application for maintenance. The defendant No. 1 gave away field Survey No. 134/1, admeasuring 1.29 HR to the plaintiff No. 1 for her maintenance. As the plaintiff Nos. 2 to 5 grew-up, the defendant No. 1 apprehending that they would make it impossible for defendant No. 1 to enjoy the field Survey No. 134/2 and field Survey No. 23. In order to deprive the plaintiffs from their rightful claim the defendant No. 1 managed to transfer field Survey No. 23, admeasuring 0.59 Are in the name of his mistress and field Survey No. 134/2 in the name of defendant No. 2 as her share on partition. Accordingly, the suit for partition and separate possession was filed. 5. The learned trial Court, after appreciating the oral as well as documentary evidence available on record, was pleased to decree the suit declaring the shares of plaintiff Nos. 2 to 5 to the extent of 3/5 share and the defendant No. 1 to the extent of 3/20 and defendant No. 3 as 5/20 share out of suit field No. 134/2. it is declared that the inter se partition amongst defendant Nos. 1 and 3 is not binding on the plaintiffs and sale deed executed by defendant No. 1 in favour of defendant No. 2 dated 29/01/1999 is not binding on the plaintiffs, vide judgment and decree dated 19/12/2007. 6. The said judgment and decree dated 19/12/2007 passed by Civil Judge Junior Division in Regular Civil Suit No. 231 of 2001 was carried in appeal by defendant No. 1-Laxmibai. The said appeal came to be dismissed vide impugned judgment and decree dated 14/11/2017, which is under challenge in this appeal. 7. This Court, on 12th September 2018, while issuing notice, was pleased to frame the following substantial question of law: "In the light of the pleadings and evidence on record with regard to the nature of the suit property, whether the share granted to the defendant No. 3 is in accordance with law?" 8. Heard learned counsel for the appellant and respondent Nos. 1 to 5. None for the respondent Nos. 6 and 7, though served. 9. Heard learned counsel for the appellant and respondent Nos. 1 to 5. None for the respondent Nos. 6 and 7, though served. 9. Learned counsel for the appellant submits that both the Courts have ignored and discarded the Partition Deed and thus, not appreciated the fact that there was a partition between defendant Nos. 1 and 3/appellants. It is further submitted that the mutation entry came to be recorded vide Exh. 38 and accordingly 7/12 extract of Field Survey No. 134/2 was also recorded in the name of defendant No. 3/appellant. Thus, according to him, both the Courts below have committed error in not considering the Partition Deed. 10. It is further submitted that the appellant is entitled to receive 1/3 share in the property of Kawadu being Class-I heir and she is further entitled to have half share of Sakhrabai after her demise. 11. The learned counsel for the respondent Nos. 1 to 5/original plaintiffs submits that the defendant Nos. 1 and 3 have failed to prove the fact of partition and both the Courts below have rightly observed to that effect. It is submitted that as there is no perversity in recording the finding, this Court may not interfere with such finding. 12. The learned counsel for the respondent Nos. 1 to 5/original plaintiffs has further submitted that as there are concurrent findings and no perversity has been pointed out by the learned counsel for the appellant, the appeal may be dismissed. 13. To consider the rival contentions of the parties, I have perused the record and also the judgments and decree of both the Courts below. 14. Both the Courts below while recording the findings as regards the partition, have observed that the defendant Nos. 1 and 3 have failed to discharge their burden to prove the fact of partition. It is further observed that the xerox copy of the partition is placed on record during the course of hearing and no witness was examined to prove and establish the said fact. Thus, both the Courts below have rightly rejected the case of the defendant Nos. 1 and 3 as regards the partition in between defendant Nos. 1 and 3. It is further observed that the xerox copy of the partition is placed on record during the course of hearing and no witness was examined to prove and establish the said fact. Thus, both the Courts below have rightly rejected the case of the defendant Nos. 1 and 3 as regards the partition in between defendant Nos. 1 and 3. Thus, in absence of any perversity in the findings recorded by both the Courts below, I do not find any merit in the submission of the learned counsel for the appellant that, both the Courts have not considered the case of the defendant Nos. 1 and 3 as regards the partition. 15. Furthermore, both the Courts below have dealt with the oral as well as documentary evidence, in detail and after scrutinizing the same have concurrently held that the suit property is an ancestral property and have carved out the shares of the plaintiffs and the defendants in the suit properties as per law. The appellant has failed to point out any error committed in the same. 16. Accordingly, I have answered the substantial question of law and pass the following order: The appeal is dismissed. No order as to costs. In view of disposal of the Second Appeal, the Civil Application(s), if any, shall stand disposed of.