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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
V.R. KINGAONKAR, J.
Govind Vishwanath Bansode & Ors. — APPELLANTS
Versus
Manika Gangaram Bansode & Ors. —RESPONDENTS
SECOND APPEAL NO. 248 OF 1987
Decided on : 24th July, 2008
Partition Suit - Agricultural Fields - Residential House - Limitation Act - Succession - Adverse Possession - Relinquishment Deed - Joint Hindu Family - Ouster - Shares
Fact of the Case:
The case involved a partition suit over agricultural fields and a residential house. The plaintiffs, successors of deceased Vishwanath, claimed 1/4th share in the suit properties. The defendants resisted the suit, claiming that Vishwanath had relinquished his rights and that they had acquired prescriptive title through adverse possession. The Trial Court decreed the suit in favor of the plaintiffs, but the First Appellate Court reversed the decision, holding the suit barred by limitation and that the defendants had become owners through adverse possession.
Finding of the Court:
The Court found that the defendants failed to prove the alleged relinquishment of rights by deceased Vishwanath and that the suit was not barred by limitation. It held that the plaintiffs were entitled to 1/4th share in the suit properties, as the succession opened when Gangaram died, entitling Vishwanath to claim his share.
Issues: The key issues included the alleged relinquishment of rights by Vishwanath, adverse possession by the defendants, and the applicability of the Limitation Act to the suit.
Ratio Decidendi: The Court held that the defendants failed to prove the alleged relinquishment of rights by deceased Vishwanath and that the suit was not barred by limitation. It emphasized that mere possession for many years does not ripen into ownership unless hostility is proved, and absence from joint possession does not indicate ouster from joint family property.
Final Decision: The appeal was allowed, the impugned judgement was set aside, and the judgement of the Trial Court was restored in favor of the plaintiffs.
1. This second appeal arises out of judgement rendered by learned 3rd Additional District Judge, Nanded, in an appeal (RCA No. 67/1983) whereby and whereunder partition decree rendered by learned Civil Judge (J.D.), in Suit bearing RCS No. 16/1976 came to be reversed.
2. Subject matter of the partition Suit comprises of three (3) agricultural fields and a residential house mentioned below :
(i) Survey No. 17/A, admeasuring 9 acres 18 gunthas.
(ii) Survey No. 18/A, admeasuring 12 acres 29 gunthas.
(iii) Survey No. 22/B, admeasuring 11 acres 22 gunthas, situated at village Bori (Kd.) and
(iv) Residential House No. 534 to the extent of northern half portion as described in the claim clause of the plaint.
3. There is no dispute about correctness of following pedigree table. Gangaram (Died in 1947) ¦ ------------------------------------------ ¦ ¦ ¦ ¦ Vishwanath Manika Bhujanga Shankar (Died in (Deft. (Deft. (Deft. 1975) No.1) No. 2) No. 3) ¦ ¦ ------------------------------------------------- ¦ ¦ ¦ ¦ ¦ Govind Prayagbai Shashikala Sunderabai Radhabai (Son) (Widow) (Married (Married (Married (Pltff. (Pltff. Daughter) Daughter) Daughter No. 1) No. 2) (Pltff.No. (Pltff.No. (Pltff.No. 3) 4) 5) Original defendant No. 4 Madhav is relative of the parties and is purchaser of a part of the suit property to the extent of 4 acres 10 gunthas area out of field Survey No. 18/A under a sale-deed dated 31st March, 1973.
4. Govind and other members of the branch of deceased Vishwanath filed the Suit (RCS No. 16/1976) for partition and separate possession, claiming 1/4th share in the suit properties. There is no dispute about the fact that Vishwanath, predecessor of the branch of the plaintiffs, was step brother of the respondent Nos. 1 to 3. He was born out of the first marriage of deceased Gangaram whereas defendant Nos. 1 to 3 were born out of the second marriage.
5. There is no dispute about the fact that the suit properties are the ancestral properties of deceased Vishwanath and the defendant Nos. 1 to 3. It is not in dispute that their father, namely, deceased Gangaram had mortgaged the suit fields in favour of one Dhondopant Puranik under a document styled as sale-deed dated 23rd Amardad 1346 Fasli (1937 A.D.).
6. The plaintiffs’ case is that due to poor financial condition of deceased Gangaram, their predecessor i.e. Vishwanath migrated to village Salapuri (District Parbhani) to earn his livelihood. Thereafter, defendant No. 1 (Manika) used to look after the family affairs of their family. After few years of the death of Gangaram, defendant No. 1 mortgaged the family house to one Kisanrao Golegaonkar and by utilizing such amount, the suit fields were redeemed from Dhondopant Puranik @ Pathak. There was civil litigation between Kisanrao Golegaonkar and defendant Nos. 1 to 3 regarding the house property which was mortgaged with him. The civil suit of Kisanrao (RCS No. 77/1960) for recovery of possession of the house property was decreed. However, during execution proceedings of R.D. No. 4/1961, a compromise was arrived at between the parties and half southern portion of the house property was given to said Kisanrao Golegaonkar whereas remaining northern half portion was retained by defendant Nos. 1 to 3 for themselves and deceased Vishwanath. It is described as the suit house. The plaintiffs alleged that subsequently defendant No. 2 Bhujanga executed a sale deed dated 31st March, 1973 in respect of 4 acres 10 gunthas area out of field Survey No. 18/A, in favour of defendant No. 4 Madhav. The plaintiffs further asserted that after demise of Vishwanath, they demanded 1/4th share in the suit properties but the defendants refused to give their share. Consequently, they filed Su
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