In view of above observation based upon the evidence, it is contended on behalf of the appellants, that there was no justification on the part of the learned First Appellate Judge to come to a wrong conclusion that no decree for specific share in Khasara No. 52 can be passed. Particularly when the suit land was purchased from a Hindu woman who was in possession of the suit land pursuant to the partition in the family and she was successor of Govinda who had died long back, Chinkaki was a sole owner of the property as Hindu woman who was in her own right possessing the suit land as absolute owner thereof and she was in a position to transfer the land in favour of Kawadu under the registered Sale Deed. The provisions of Section 14 of the Hindu Succession Act, 1956 appears to have been ignored by the learned First Appellate Judge by assuming something which was not established on record. There was no reason for the learned First Appellate Judge to hold that the partition was not duly established and no such case was made out to challenge the registered Sale Deed in question nor any appeal was filed for questioning the registered Sale Deed executed by Chinkaki in favour of Kawadu. That being so, the First Appellate Court was not justified to partly allow the appeal by making interference in the impugned judgment and order passed by the trial Court which was well reasoned and in accordance with the legal position stated above. Hence, substantial questions of law must be answered in favour of the appellants. In view of above, the second appeal needs to be allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.86 of 1999
Kawadu S/o Rushi Kowe
:: versus ::
Jainabai W/o Namdeo Sedmake
: A.P.BHANGALE, J.
: FEBRUARY 20, 2014.
Citation;2014(5) MHLJ 240
1.
The present appeal is directed, against judgment
and order dated 2.11.1998, passed by the learned
Additional District Judge, Chandrapur, in Regular
Civil Appeal No.49 of 1986, which was partly
allowed, which arose from judgment and order dated
4.2.1986, passed by the learned Joint Civil Judge
Junior Division, Brahmapuri, in Regular Civil Suit
No.187 of 1977, whereby the suit was decreed.
2.
Though served on merits, the respondents did not
3.
turn up for hearing.
The appeal was admitted, on 12.3.2001, on the
substantial questions of law as to whether the
First Appellate Court was justified to grant relief
of joint possession to the plaintiffs as joint co
owners and whether any interference is required at
The facts of the case, in brief, are thus:
4.
ig
the instance of this Court.
That Kawadu son of Rushi Kowe purchased the suit
land Bearing Khasara No.52 admeasuring 2.57 HR,
assessed at Rs.7.76, situated at Mouza Viticheck,
P.C.No.36 in Tahsil Brahmapuri.
5.
It is the case of appellants (original
plaintiffs) that by registered Sale Deed dated
28.12.1970 one Chinkaki wd/o Govinda Kumare sold
the suit land for sum of Rs.3,000/ and placed the
plaintiffs in possession of the suit land. The land
was described as Khasara No.52, admeasuring 2.57,
assessed at Rs.0.58, situated at Mouza Vitickeck,
P.C.No.36, in Tahsil Brahmapuri, District
Chandrapur which was bounded to the East by the
field of Kawadu Mahar, to the West by the field of
Anjanabai Kahate, to the North by the field of
Kisan Pusam and to the South by the field of Madhao
Kumare. It was the specific case of the plaintiffs
that the suit land was earlier in the joint
ig
ownership of Madhao S/o Baburao Kumare, Govinda S/o
Baburao Kumare and Kisan Pusam. Pursuant to
partition in the family, share of Govinda was in
possession of his widow Chinkaki and Chinkaki had
sold the suit land in favour of Kawadu Rushi Kowe
under a registered Sale Deed and Kawadu was placed
in possession thereof. It is thus contended that
there was no question of any partition to be
considered after execution of registered Sale Deed
because nobody had challenged the registered Sale
Deed nor any appeal was filed by any person
claiming share contrary to the averments made in
the registered Sale Deed.
It is under these circumstances, the decree for
declaration and possession was prayed before the
trial Court. The learned trial Judge after hearing
the parties going through the evidence adduced by
the witnesses and perusing documentary evidence had
observed, in connection with contrary stand of
ig
at paragraph No.16 thus:
the absence of partition raised by the defendants,
“Therefore the fact of partition and
separate possession and cultivation of
land of their share, I have also no
hesitation in coming to the conclusion
that the land bearing Khasara No.52
area 7.72 acres situated at mouza
Vetichak of tahsil Brahmapuri of
district Chandrapur was partitioned
amongst the three brothers namely
Madhao (Deft.No.1) Govinda and Kisan
and in the said partition northern land
was given to Kisan central one was
given to Govinda and southern one was
given to the Deft.No.1 Madhao, and
after the partition each of the share
holder was put in the possession and
cultivation of the land of their share.
Accordingly, the deceased defendant No.
4 Chinki sold her land admeasuring 2.57
acres to the plaintiffs for the
consideration of Rs.3000/ and in the
consideration of the suit land on the
same day i.e. 28.12.1970. The
defendant Nos.1 and 2 themselves failed
to show that at the time of execution
of the suit saledeed deceased Chinki
Kumare and plaintiffs were not
competent to enter into a contract and
that they were not qualified to enter
into a same. The defendant No.1 and 2
also failed to show that there was no
sale transaction at all and the same
was not intended to be acted upon.”
In view of above observation based upon the
evidence, it is contended on behalf of the
appellants, that there was no justification on the
ig
part of the learned First Appellate Judge to come
to a wrong conclusion that no decree for specific
share in Khasara No.52 can be passed. Particularly
when the suit land was purchased from a Hindu woman
who was in possession of the suit land pursuant to
the partition in the family and she was successor
of Govinda who had died long back, Chinkaki was a
sole owner of the property as Hindu woman who was
in her own right possessing the suit land as
absolute owner thereof and she was in a position to
transfer the land in favour of Kawadu under the
registered Sale Deed. The provisions of Section 14
of the Hindu Succession Act, 1956 appears to have
been ignored by the learned First Appellate Judge
by assuming something which was not established on
record. There was no reason for the learned First
Appellate Judge to hold that the partition was not
duly established and no such case was made out to
challenge the registered Sale Deed in question nor
any appeal was filed for questioning the registered
Sale Deed executed by Chinkaki in favour of Kawadu.
That being so, the First Appellate Court was not
justified to partly allow the appeal by making
interference in the impugned judgment and order
passed by the trial Court which was well reasoned
and in accordance with the legal position stated
above. Hence, substantial questions of law must be
answered in favour of the appellants. In view of
above, the second appeal needs to be allowed.
6.
In the result, the Second Appeal is, therefore,
allowed. The judgment and order, dated 4.2.1986,
passed by the learned Joint Civil Judge Junior
Division, Brahmapuri, in Regular Civil Suit No.187
of 1977, is restored. The impugned judgment and
order dated 2.11.1998, passed by the learned
Additional District Judge, Chandrapur, in Regular
Civil Appeal No.49 of 1986, is hereby quashed and
set aside.
The Second Appeal is allowed accordingly.
JUDGE
Print Page
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.86 of 1999
Kawadu S/o Rushi Kowe
:: versus ::
Jainabai W/o Namdeo Sedmake
: A.P.BHANGALE, J.
: FEBRUARY 20, 2014.
Citation;2014(5) MHLJ 240
1.
The present appeal is directed, against judgment
and order dated 2.11.1998, passed by the learned
Additional District Judge, Chandrapur, in Regular
Civil Appeal No.49 of 1986, which was partly
allowed, which arose from judgment and order dated
4.2.1986, passed by the learned Joint Civil Judge
Junior Division, Brahmapuri, in Regular Civil Suit
No.187 of 1977, whereby the suit was decreed.
2.
Though served on merits, the respondents did not
3.
turn up for hearing.
The appeal was admitted, on 12.3.2001, on the
substantial questions of law as to whether the
First Appellate Court was justified to grant relief
of joint possession to the plaintiffs as joint co
owners and whether any interference is required at
The facts of the case, in brief, are thus:
4.
ig
the instance of this Court.
That Kawadu son of Rushi Kowe purchased the suit
land Bearing Khasara No.52 admeasuring 2.57 HR,
assessed at Rs.7.76, situated at Mouza Viticheck,
P.C.No.36 in Tahsil Brahmapuri.
5.
It is the case of appellants (original
plaintiffs) that by registered Sale Deed dated
28.12.1970 one Chinkaki wd/o Govinda Kumare sold
the suit land for sum of Rs.3,000/ and placed the
plaintiffs in possession of the suit land. The land
was described as Khasara No.52, admeasuring 2.57,
assessed at Rs.0.58, situated at Mouza Vitickeck,
P.C.No.36, in Tahsil Brahmapuri, District
Chandrapur which was bounded to the East by the
field of Kawadu Mahar, to the West by the field of
Anjanabai Kahate, to the North by the field of
Kisan Pusam and to the South by the field of Madhao
Kumare. It was the specific case of the plaintiffs
that the suit land was earlier in the joint
ig
ownership of Madhao S/o Baburao Kumare, Govinda S/o
Baburao Kumare and Kisan Pusam. Pursuant to
partition in the family, share of Govinda was in
possession of his widow Chinkaki and Chinkaki had
sold the suit land in favour of Kawadu Rushi Kowe
under a registered Sale Deed and Kawadu was placed
in possession thereof. It is thus contended that
there was no question of any partition to be
considered after execution of registered Sale Deed
because nobody had challenged the registered Sale
Deed nor any appeal was filed by any person
claiming share contrary to the averments made in
the registered Sale Deed.
It is under these circumstances, the decree for
declaration and possession was prayed before the
trial Court. The learned trial Judge after hearing
the parties going through the evidence adduced by
the witnesses and perusing documentary evidence had
observed, in connection with contrary stand of
ig
at paragraph No.16 thus:
the absence of partition raised by the defendants,
“Therefore the fact of partition and
separate possession and cultivation of
land of their share, I have also no
hesitation in coming to the conclusion
that the land bearing Khasara No.52
area 7.72 acres situated at mouza
Vetichak of tahsil Brahmapuri of
district Chandrapur was partitioned
amongst the three brothers namely
Madhao (Deft.No.1) Govinda and Kisan
and in the said partition northern land
was given to Kisan central one was
given to Govinda and southern one was
given to the Deft.No.1 Madhao, and
after the partition each of the share
holder was put in the possession and
cultivation of the land of their share.
Accordingly, the deceased defendant No.
4 Chinki sold her land admeasuring 2.57
acres to the plaintiffs for the
consideration of Rs.3000/ and in the
consideration of the suit land on the
same day i.e. 28.12.1970. The
defendant Nos.1 and 2 themselves failed
to show that at the time of execution
of the suit saledeed deceased Chinki
Kumare and plaintiffs were not
competent to enter into a contract and
that they were not qualified to enter
into a same. The defendant No.1 and 2
also failed to show that there was no
sale transaction at all and the same
was not intended to be acted upon.”
In view of above observation based upon the
evidence, it is contended on behalf of the
appellants, that there was no justification on the
ig
part of the learned First Appellate Judge to come
to a wrong conclusion that no decree for specific
share in Khasara No.52 can be passed. Particularly
when the suit land was purchased from a Hindu woman
who was in possession of the suit land pursuant to
the partition in the family and she was successor
of Govinda who had died long back, Chinkaki was a
sole owner of the property as Hindu woman who was
in her own right possessing the suit land as
absolute owner thereof and she was in a position to
transfer the land in favour of Kawadu under the
registered Sale Deed. The provisions of Section 14
of the Hindu Succession Act, 1956 appears to have
been ignored by the learned First Appellate Judge
by assuming something which was not established on
record. There was no reason for the learned First
Appellate Judge to hold that the partition was not
duly established and no such case was made out to
challenge the registered Sale Deed in question nor
any appeal was filed for questioning the registered
Sale Deed executed by Chinkaki in favour of Kawadu.
That being so, the First Appellate Court was not
justified to partly allow the appeal by making
interference in the impugned judgment and order
passed by the trial Court which was well reasoned
and in accordance with the legal position stated
above. Hence, substantial questions of law must be
answered in favour of the appellants. In view of
above, the second appeal needs to be allowed.
6.
In the result, the Second Appeal is, therefore,
allowed. The judgment and order, dated 4.2.1986,
passed by the learned Joint Civil Judge Junior
Division, Brahmapuri, in Regular Civil Suit No.187
of 1977, is restored. The impugned judgment and
order dated 2.11.1998, passed by the learned
Additional District Judge, Chandrapur, in Regular
Civil Appeal No.49 of 1986, is hereby quashed and
set aside.
The Second Appeal is allowed accordingly.
JUDGE
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