Case Note & Summary
The case involves a second appeal filed by the original plaintiff (now represented by legal heirs) against the judgment and decree of the Regular Civil Appeal No. 239/1982 passed by the 3rd Additional District Judge, Nanded, which confirmed the trial court's decision in Regular Civil Suit No. 150/1979. The suit was filed for partition and possession of agricultural lands situated at village Aloor, Tahsil Degloor, District Nanded. The plaintiff claimed a 7/18th share in all the suit lands, asserting that they were ancestral joint family properties. The trial court partly decreed the suit, granting the plaintiff a 1/3rd share in most of the properties but excluding three specific lands: Gat Nos. 630, 643, and 96. The court held that these three lands belonged absolutely to defendant No. 5 (Saraswatibai w/o Nilkanthrao Patil) and were not part of the joint family estate. The first appellate court affirmed this finding. The plaintiff challenged only the decision regarding these three lands in the second appeal. The High Court, after hearing the parties, found that the concurrent findings of fact by the lower courts were based on evidence and were not perverse. The plaintiff failed to prove that the three lands were ancestral or joint family properties. The court noted that defendant No. 5 had acquired the lands through a will and a sale deed, establishing her absolute ownership. Consequently, the High Court dismissed the second appeal, upholding the judgments of the lower courts.
Headnote
A) Hindu Law - Partition - Ancestral Property - Burden of Proof - The plaintiff claimed partition of agricultural lands including Gat Nos. 630, 643, and 96, alleging they were ancestral joint family properties. The courts below held that these lands belonged absolutely to defendant No. 5, who had acquired them through a will and a sale deed. The plaintiff failed to discharge the burden of proving that the properties were joint family assets. Held that the concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence. (Paras 1-3)
Issue of Consideration
Whether the three disputed lands (Gat Nos. 630, 643, and 96) are ancestral joint family properties liable for partition, or whether they are the absolute properties of defendant No. 5.
Final Decision
The High Court dismissed the second appeal, upholding the judgments of the lower courts. The three lands (Gat Nos. 630, 643, and 96) were held to be the absolute property of defendant No. 5 and not subject to partition.
Law Points
- Partition suit
- burden of proof
- ancestral property
- joint family property
- absolute ownership
- concurrent findings of fact
- second appeal
- substantial question of law
Case Details
2014 LawText (BOM) (04) 2
Second Appeal No. 323 of 1991
Mr. Milind Patil for appellants; Mr. G.R. Syed h/f. Mr. G.P. Shinde for respondent Nos. 1(a) to 1(d); Mr. H.F. Pawar, Mr. A.R. Nikam, Smt. Surekha Mahajan for respondent Nos. 4(a) to 4(c)
Ramrao Nilkanthrao Patil (Died through L.Rs.) 1. Shobhbai Ramrao Patil, 2. Nilkamal Ramrao Patil, 3. Minakshi Ramrao Patil, 4. Dnyaneshwar Ramrao Patil
1. Dhondaji @ Ramesh s/o. Nilkanthrao Patil (Died through L.Rs.) 1(a) Shakuntala Dhondaji @ Ramesh Patil, 1(b) Sachin Dhondji @ Ramesh Patil, 1(c) Sandeep Dhondji @ Ramesh Patil, 1(d) Krushna Dhondaji @ Ramesh Patil, 2. Surekha @ Rekha d/o. Nilkanthrao Patil, 3. Suman w/o. Suresh Patil, 4. Banarasibai w/o. Narayanrao Patil (Died through L.Rs.) 4(a) Bhagatraj Narayan Patil, 4(b) Nilraj Narayan Patil, 4(c) Kankraj Narayan Patil, 5. Saraswatibai w/o. Nilkanthrao Patil
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Nature of Litigation
Second appeal against the judgment and decree in a partition suit.
Remedy Sought
The appellant (original plaintiff) sought partition and possession of agricultural lands, claiming a 7/18th share.
Filing Reason
The appellant challenged the exclusion of three lands (Gat Nos. 630, 643, and 96) from partition, which were held to be the absolute property of defendant No. 5.
Previous Decisions
The trial court partly decreed the suit, granting 1/3rd share in most properties but excluding the three lands. The first appellate court confirmed this decision.
Issues
Whether the three disputed lands (Gat Nos. 630, 643, and 96) are ancestral joint family properties liable for partition?
Whether the concurrent findings of fact by the lower courts can be interfered with in second appeal?
Submissions/Arguments
The appellant argued that the three lands were ancestral joint family properties and should be included in partition.
The respondents contended that the lands belonged absolutely to defendant No. 5, who had acquired them through a will and a sale deed.
Ratio Decidendi
The concurrent findings of fact by the lower courts, based on evidence, cannot be interfered with in second appeal unless they are perverse or based on no evidence. The plaintiff failed to prove that the three disputed lands were ancestral joint family properties.
Judgment Excerpts
The suit was filed in respect of agricultural lands situated at village Aloor, Tahsil Degloor, District Nanded.
The Courts below have held that lands Gat Nos. 630, 643 and 96 belong to defendant No. 5 and she is the absolute owner of these three lands.
The decision only in respect of aforesaid three lands is challenged by the plaintiff.
Procedural History
The original suit (Regular Civil Suit No. 150/1979) was filed in the Court at Degloor. The trial court partly decreed the suit. The first appeal (Regular Civil Appeal No. 239/1982) was dismissed by the 3rd Additional District Judge, Nanded. The present second appeal (Second Appeal No. 323/1991) was filed in the High Court of Bombay, Bench at Aurangabad.
