1 SA 737 of 2012

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Second Appeal No.737 of 2012

With

Civil Application No.12810 of 2012

Rangnath s/o Vinayak Shinde

And Another.

.. Appellants.

Versus

Ashok s/o Limbraj Shinde

And Another.

.. Respondents.

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Shri. S.B. Bhapkar, Advocate, holding for Shri. Kailas B

Jadhav, Advocate, for appellants.

Shri. Prashant Deshmukh, Advocate, for respondent Nos.1

and 2.

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CORAM: T.V. NALAWADE, J.

DATE : 8^th APRIL 2014

ORDER:

1)

The appeal is filed against the judgment and

decree of Regular Civil Appeal No.133 of 2008 which was

pending in the Court of District Judge-1, Osmanabad. The

First Appellate Court has set aside the judgment and

decree of Regular Civil Suit No.74 of 2003 by which the

2 SA 737 of 2012

suit of the present respondents was dismissed. The First

Appellate Court has granted relief to respondents /

plaintiffs of declaration of ownership and injunction. Both

sides are heard.

2)

The suit was filed in respect of agricultural

lands bearing Gut No.67 admeasuring 2 Hectares 93 R

(old Survey No.71/1 to the extent of 7 acres 18 gunthas of

southern side); Gut No.2 (old Survey No.63/4 to the extent

of 40 R land); Gut No.452 and Gut No.453 (each to the

extent of 72 R and which was given Survey No.62/7 in the

past and which was admeasuring 3 acres 21 gunthas).

The total area of these lands is 4 Hectares and 67 R and

the lands are situated at village Shingoli, Tahsil and

District Osmanabad.

3)

Plaintiff No.1 is son of Limbraj. Limbraj had one

more son by name Vinayak but Vinayak was step brother

of plaintiff No.1 Ashok. Plaintiff No.2 Subabai is widow of

Limbraj. Defendant No.2 Kaushalyabai is widow of

Vinayak.

3 SA 737 of 2012

4)

It is the case of the plaintiffs that land Survey

Nos.62/7, 63/4, 65/6, 71/1 and 72/2 situated at Shingoli

were owned by Limbraj and his brother Murlidhar. After

partition between Limbraj and Murlidhar, entire land

Survey No.62/7, entire land Sy.No.63/4, 2 acres 19

gunthas from Survey No.65/6, 7 acres 18 gunthas from

Survey No.71/1, southern side 5 acres 3 gunthas from

Survey No.72/1 had come to the share of Limbraj. One

forth share in the fruit bearing trees and two Anna share

in the water of well and some portion of house property

had also come to the share of Limbraj.

5)

Limbraj had married two wives and the names

of both wives were Subabai. It is contended that there was

dispute between plaintiff No.1 and his step brother

Vinayak and due to that Regular Civil Suit No.153 of 1968

was filed by the plaintiff for partition of the properties

which were standing in the name of Limbraj as they were

ancestral properties. It is contended that said suit was

decreed due to compromise between the parties and

decree was prepared in terms of the compromise.

4 SA 737 of 2012

6)

It is the case of the plaintiffs that portion

admeasuring 2 acres from Survey No.62/7, portion

admeasuring 5 acres and 3 gunthas from Survey No.72/1

and some open space with shed were given to Vinayak and

separate possession of these properties was given under

compromise and partition was effected. It is contended

that plaintiff No.1 – Ashok, plaintiff No.2 Subabai had one-

forth share each in view of Hindu law in the property and

one forth share was available to Vinayak as Limbraj was

alive and this way Vinayak was entitled to only 5 acres 12

gunthas land but 2 acres more portion was given to

Vinayak to see that he does not create dispute in future

and he does not claim the right in the property which was

separated from the share of Vinayak. It is contended that

in the compromise decree Vinayak had given in writing

that for him no concern was left with the remaining

property.

7)

It is the