2025:BHC-AUG:12473 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 854 OF 2004

1. Baban s/o Dashrath Hanmante Age : 40 Years; Occu : Agriculturist;

2. Hiraman s/o Dashrath Hanmante Age : 36 Years; Occu : Agriculturist;

3. Loadba s/o Dashrath Hanmante Age : 30 Years; Occu : Agriculturist;

All are R/o Bondala, Tahsil and District Hingoli. ... APPELLANTS V E R S U S

1. Kashiram s/o Dashrath Hanmante Age : 65 Years; Occu : Agriculturist;

2. Sow. Gumfabai w/o Kashiram Hanmante Age : 55 Years; Occu : Household;

Both are R/o Bondala, Tahsil and District ... RESPONDENTS Hingoli.

Mr. B. S. Kudale, Advocate for Appellants.

Mr. Aashish T. Jadhavar, Advocate for Respondent No.1.

Mr. Suresh K. Hanumante, Advocate for Respondent No.2.

CORAM : ROHIT W. JOSHI, J.

DATE : APRIL 07, 2025.

JUDGMENT . The present Second Appeal is preferred by the original Plaintiffs. The Plaintiffs and Defendant No.1 are real brothers. The Defendant No.2 is wife of the Defendant No.1. The Plaintiffs filed the suit for declaration of ownership over the suit properties and for perpetual injunction restraining the Defendants from disturbing their possession over the suit properties. The said suit was decreed by the learned trial court vide Judgment and Decree dated 17/11/1999. The Defendants assailed the said decree by filing appeal being Regular Civil Appeal No. 57/1999, which has been allowed by the learned first appellate court vide Judgment and Decree dated 17/4/2004.

2. Being aggrieved by the said decree passed by the learned first appellate court, the Second Appeal is preferred, which is admitted vide order dated 12/6/2007 on the following substantial question of law :

“Whether in the facts and circumstances of the present case, the document styled as “Partition Deed dated 8.7.1993” (Exh.79) was liable to be rejected for the reason that scribe was not examined though signature of the defendant No.1 is admitted by him and the stamp paper was purchased by him are the proved facts and whether such appreciation of the evidence made by the first appellate court is perverse ?”

3. It is the case of the Plaintiffs, the Plaintiffs and Defendant No.1, being members of Joint Hindu Family purchased the suit properties being agricultural lands bearing Gat Nos. 110 and 112 situated at village Bondala, Tahsil and District Hingoli. However, the sale deed was executed only in the name of Defendant No.1 since he was Karta. The Plaintiffs contend that there was a oral partition with respect to the suit properties between the Plaintiffs and Defendant No.1 and thereafter a document evidencing the earlier oral partition, was executed by the Defendant No.1 on 8/7/1993. It is stated that as per the said partition the Plaintiffs were allotted portion admeasuring 0.99 HR land each in Gat No. 110 and 0.57 HR, 0.59 HR and 0.58 HR land respectively in Gat No. 112. It is claimed that the Defendant No.1 was Karta of the family, and therefore, sale deed was executed in his name. The Plaintiffs have stated that the property, which fell to the share of Defendant No.1, was subsequently transferred by him in the name of his wife namely, Gumfabai Kashiram Hanmante (Defendant No.2). The document of partition dated 8/7/1993 is at Exhibit-79. The stamp paper, on which the document is written, is purchased by the Defendant No.1.

4. The learned trial court has held that the Plaintiffs had proved their case that the suit properties were purchased from joint funds and the suit properties were indeed orally partitioned between the Plaintiff Nos.1 to 3 and Defendant No.1 on the day of ‘Gudipadwa’ in the year 1993 and further that the terms of oral partition were reduced into writing in the document of partition dated 8/7/1993. Accordingly, decree of declaration of ownership and injunction against dispossession without following due process of law is granted by the learned trial court. The learned first appellate court has reversed the findings recorded by the learned trial court on re-appr