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sa877.16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 877 OF 2016

WITH

CIVIL APPLICATION NO. 14363 OF 2019

Baswaraj s/o. Madolappa Barole

..

Appellant

[original

plaintiff]

Versus

Madevi w/o. Virbhadrappa Barole (died)

..

Respondents

through her legal heirs..

[original

defendants]

Miss P.S. Talekar h/f. Talekar & Associates, Advocate for

the appellant.

Mr.C.R. Deshpande, Advocate for respondent Nos.1A to 1D.

CORAM

:

S.M.GAVHANE,J.

RESERVED ON

:

17.12.2019

PRONOUNCED ON:

04.03.2020

O R D E R :-

.

Heard learned Advocates for the parties on

admission of the appeal.

2.

The appellant/original plaintiff has filed this

Second Appeal against dismissal of his Regular Civil

Appeal No. 202 of 2012 by the Adhoc District Judge-1,

Latur, confirming the order dated 22.07.2010 passed below

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Exh.25 in Special Civil Suit No.102 of 2004, holding that

said Court/Civil Court has no jurisdiction to try and

entertain said suit, by answering preliminary issue

framed in this respect in the negative and ultimately

dismissing the said suit on the same day as per order

below Exh.1. The parties are hereinafter referred to as

per their position in the suit.

3.

One deceased Virbhadrappa – husband of defendant

No.1 and father of defendant Nos. 2 to 5 was elder

brother of the plaintiff. The plaintiff filed suit for

partition, separate possession and injunction against the

defendants in respect of one residential plot and

building thereon bearing CTS No.4094, Municipal Council

House No.1-R/212, admeasuring 2925 sq.ft. situated at Old

Adarsh Colony, Latur, which is hereinafter referred to as

the “suit property”.

4.

The case of the plaintiff before the Trial Court

was that he and his brother Virbhadrappa were residing

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jointly. They were members of joint Hindu family.

Virbhadrappa was Karta of the joint family. Their other

brothers were separated and they have no concern with the

joint family of the plaintiff and Virbhadrappa. Said

joint family was having business of trading, electrical

motors, old engines, spare parts, fertilizers, seeds etc.

The partnership deed was also prepared in respect of that

business on 12.12.1969 at the instance of Virbhadrappa.

In the said deed, plaintiff and defendant No.1 were shown

as partners. Further, it is case of the plaintiff that

Virbhadrappa purchased the suit plot CTS No.4094 on

05.10.1971, as Karta of joint family and he became member

of Adarsh Housing Society (for short “housing society”)

and got allotted said plot from the land of the housing

society for joint family of the plaintiff and

Virbhadrappa. For that purpose, he had obtained written

consent of plaintiff on 05.10.1971. The amount was taken

from joint family business of the plaintiff and

Virbhadrappa to purchase the suit plot. The amount was

paid by Virbhadrappa as Karta of the joint family. The

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construction on the suit plot was completed in the year

1973. Since then the suit property was possessed by the

plaintiff and Virbhadrappa. In the year 1975,

Vidbhadrappa was murdered. After his death, plaintiff

and defendants – legal representatives of Virbhadrappa

continued as member of the joint family. The plaintiff

deposited various amounts with the housing society from

time to time towards payment of loan of Maharashtra State

Housing Finance Corporation.

5.

According to the plaintiff, on 03.01.1995

defendant No.1 submitted application to the housing

society to record name of the plaintiff and defendant

No.1 in respect of suit plot and to transfer share in

their names. The housing society has not taken any

action on that application. On 04.01.2000, the plaintiff

submitted application to the society to effect mutation

in respect of suit plot and record his name and name of

defendant No.2. The housing society informed the

plaintiff to obtain partition certificate or succession

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certificate from the Court. It is th