2024:BHC-NAG:14140 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 92 OF 2020 Bhimrao Suryabhanji Amrute (Dead)

through his legal representatives :

1) Ambadas S/o Bhimrao Amrute, Aged about 60 years, Occu. : Agriculture, 2) Jagdish S/o Ambadas Amrute, Aged about 32 years, Occu. : Agriculture, 3) Satish S/o Ambadas Amrute, Aged about 30 years, Occu. : Agriculture, All R/o. At Post Hiwarkhed, Tq. Morshi, Dist. Amravati. …. APPELLANTS // VERSUS //

1) Ashok S/o Bhimrao Amrute, Aged about 56 years, Occu. : Service, R/o. Gurukrupa Colony, Near Rahatgaon Chowki, Amravati, Tq. and Dist. Amravati.

At present Mahendra Colony, Near Hanuman Mandir, Amravati.

Bhimrao Suryabhanji Amrute (Dead)

through his legal representative :

2) Kanta Pramodrao Deshmukh, Aged about 51 years, Occ.- Household, R/o. Purna Nagar, Tq. Bhatkuli, District Amravati. …. RESPONDENTS _____________________________________________________________

Mrs. S. W. Deshpande, Advocate for Appellants.

Mr. G. R. Sadar, Advocate for Respondent Nos.1 and 2.

_____________________________________________________________

CORAM : SANJAY A. DESHMUKH , J .

DATE OF RESERVING THE JUDGMENT : 09.09.2024. DATE OF PRONOUNCING THE JUDGMENT : 26.09.2024.

JUDGMENT.

1. Admit. Heard finally with the consent of the learned Advocates for the parties.

2. This appeal is preferred against the Judgment and decree passed by the District Judge-1, Amravati in Regular Civil Appeal No.145 of 2016, dated 05.09.2019, which was preferred against the Judgment and decree passed by the 3^rd Joint Civil Judge, Senior Division, Amravati in Special Civil Suit No.240 of 2011, dated

13.12.2013.

3. Brief facts of the case are as follows :

(i) The agricultural land bearing Survey No.137/2-B admeasuring 1.21 HR., and House No.1533, situated at village Hiwarkhed, Tq. Morshi, District Amravati are the subject matter of the suit.

(ii) The plaintiff contended that defendant No.1 – Bhimrao is his father, defendant No.2 is his brother and defendant No.3 is his sister. Defendant Nos.4 and 5 are the sons of brother of plaintiff, who died earlier. The father of the plaintiff passed away during the pendency of the suit. The plaintiff further contended that agricultural land bearing Survey No.137/2B was purchased using funds received by the defendant No.1 from the State Government under the Land Acquisition Act. These funds were obtained as compensation for the acquisition of ancestral agricultural land bearing Survey No.55/7. The defendant No.1, the plaintiff’s father, sold Survey No.137/2B to the defendant No.5. The plaintiff argued that this sale was illegal and not binding on him. He further contended that these properties are ancestral properties and, therefore, claimed he has 1/4^th share in the suit properties.

4. Defendant No.2 appeared but failed to file a written statement. Subsequently, he filed a written statement along with an application to set aside the order of no written statement. The application was allowed on the condition that costs would be deposited in the Court. However, the costs was not deposited. As a result, the suit proceeded without the written statement of defendant No.2.

5. Defendant Nos.3 to 5 also failed to file their written statements, consequently, the suit proceeded without their written statements as well.

6. The defendants did not produce any evidence. After considering the evidence presented by the plaintiff on record, the learned trial Court decreed the suit to the extent of a 1/4^th share of the plaintiff in the suit properties and held that the sale-deed dated

28.02.2011 is not binding upon the plaintiff.

7. The first appeal was preferred by plaintiff contending that he is entitled to a 1/3rd share in the suit property as per Section 8 of the Hindu Succession Act, 1956 (for short the “HS Act”), due to the death of his father during trial.

8. The first appellate Court formed the following points for consideration :

(1) Whether the appellant proves that he is entitled for one third sh