The plaintiff failed to prove ancestral property claims, leading to the dismissal of the partition suit and the recognition of the defendant's legal ownership.

JUDGMENT :

1. This appeal is preferred against the judgment and decree passed by the learned District Judge-1, Nagpur in Regular Civil Appeal No.792/2022, dated 26.06.2023. The first appeal was preferred against the judgment and decree passed by the learned Civil Judge, Senior Division, Nagpur in Special Civil Suit No.357/2000 dated 27.02.2007. The suit and appeal both were dismissed. The appellant-defendant no.4 has preferred this appeal.

THE PLAINTIFF’S CLAIM :

2. Brief facts of the case are that the plaintiff Prakash s/o Govindrao Dharmadhikari filed suit for partition and separate possession, declaration and perpetual injunction against the defendants of the following properties. These were the subject matter of the suit; (i) House No.234, Ward No.22, situated at Hanumant Ward, Pandhurna, Tahsil-Pandhurna, District-Chindwara (M.P.) and (ii) Plot No.C-92, ad-measuring 96 Sq. Meters out of Khasra No.25/2k situated at Ward No.95, Nagpur.

3. The plaintiff contended that his father defendant no.1 Govind having three sons Prakash-Plaintiff, Ashok, the defendant no.2, Anant and the defendant no.3 daughter Ulka. The defendant No.4/Appellant is purchaser of the suit property situated at Pandhurna. During the pendency of the first appeal, defendant no.1 Govind died. The plaintiff contended that the suit properties are the coparcenery properties of Hindu Joint Family of the plaintiff and defendant nos.1 to 3. However, the house property situated at Pandhurna was illegally sold by the defendant no.1, Govind to the defendant no.4 for total consideration of Rs.3,50,000/- by executing a sale deed dated 24.09.1998. On 01.05.2000, he came to know about that sale deed. He requested defendant nos.4 and 5 to cancel the said sale deed, but they refused. The defendant no.4 was the tenant of the some part of the house at Pandhurna. She purchased that property illegally. It is prayed to declare that said sale deed is null and void and not binding on plaintiff. The partition of suit properties is also claimed.

DEFENCE OF DEFENDANT

4. The defendant no.1 is the father of the plaintiff, admitted that, it is ancestral joint Hindu family property. However, he denied the execution of sale deed in favour of the defendant no.4. It is further contended by the defendant no.1 in his written statement that in the month of December, 1995, he suffered by the illness, therefore, he came to Nagpur to reside with the plaintiff.

5. The defendant no.4 strongly opposed the suit and contended that the sale deed regarding the house property at Pandhurna is legal. The defendant no.1 was absolute owner of the suit property at Pandhurna. She has paid consideration of Rs.3,50,000/- to the defendant no.1. She is a bonafide purchaser for valuable consideration paid to the defendant no.1 without notice.

6. It is further contended by the defendant no.4 that the Court of Civil Judge, Senior Division at Nagpur has no jurisdiction to try the suit. It is lastly prayed to dismiss the suit as the defendants have engaged in mischief regarding the territorial jurisdiction.

7. The learned Trial Court held that the plaintiff had proved his case for partition. The defendant no.4 has fraudulently got executed the sale deed and caused loss to the plaintiff. The defendant no.4 failed to prove that, she is a bonafide purchaser of the suit property. The Civil Court has jurisdiction to try the suit and the suit was dismissed.

8. The first Appellate Court dismissed the appeal filed by the defendant no.4 and held that the sale deed executed in favour of the defendants by the defendant no.1 was not for legal necessity. The plaintiff has 1/4th share in the suit property. The Civil Court at Nagpur has territorial jurisdiction and therefore the appeal was dismissed.

9. This court formed the following substantial questions of law : (i) Whether the Courts below erred in concluding that the property situated at Nagpur is an ancestral property without there being any documentary evidence to prove that the father o