IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.274 OF 2020 WITH CIVIL APPLICATION NO.267 OF 2020 IN SECOND APPEAL NO.274 OF 2020 Shri. Atul Bapusaheb Jadhav & Ors. ...Appellants vs.

Sharadrao Daulatrao Jadhav, Since deceased, through LRs & Ors. ...Respondents ….

Mr. Sanjay Kshirsagar, for the Appellants.

Mr. Yuvraj Narvankar, i/b. Mr. Bhooshan R. Mandlik, for the Respondents.

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CORAM : S.M. MODAK, J. DATE : 4 AUGUST 2022 Oral Judgment :

Heard learned Advocate Mr. Kshirsagar for the Appellants and learned Advocate Mr. Narvankar for all the Respondents.

2. This is a second appeal filed by LRs of original defendant Bapusaheb Jadhav. When the suit was filed by his brother Sharad, said Bapusaheb was alive. He expired during pendency of the suit and hence his LRs, who are present Appellants, were brought on record. The suit was filed for possession predominantly on the background that plaintiff Sharad permitted said Bapusaheb to occupy the suit premises even after the partition is executed in the year 1961. As per the said partition, the suit premises were allotted to the share of plaintiff-Sharad.

3. The suit premises is a part of a structure standing on City Survey No.2024 situated at E-Ward Rajarampuri, District Kolhapur. The said suit was decreed and the defendants were directed to handover possession. When the first appeal was filed on behalf of the defendants, they have failed to convince the first appellate court and, that is how, the present second appeal is filed.

4. The relationship in between the parties is admitted. Though the plaintiff relied upon a registered deed of partition dated 18 December 1961, the defendants have challenged the said partition. The genealogical tree is as follows:

The sons and daughters of Daulatrao Jadhav were described as parties to that partition deed. Said Daulatrao is described as a party, who has executed the partition deed, whereas the present plaintiff and predecessor-in-title of these defendants, Bapusaheb and other sons, were described as the parties, who got it executed. However, on the said partition deed, only Daulatrao Jadhav has signed. These Appellants by way of written statement have challenged the said document and pleaded that it is not a partition deed but will executed by said Daulatrao. They have also taken a plea that they have become owners by adverse possession because, admittedly, they were in possession of the suit premises even earlier to the 1961 deed of partition. Additionally, they have denied the theory of granting gratuitous licence by the plaintiff Sharad to his brother Bapusaheb (their predecessor-in-

title).

5. The contention of plaintiff Sharad was that as per the deed of partition, the suit property is allotted to his share and his brother, i.e. Bapusaheb, was staying in that structure earlier to partition and plaintiff Sharad permitted him to remain in possession. The plaintiff has considered the defendant Bapusaheb as a gratuitous licensee. When the plaintiff was in need of the suit premises, he issued a notice of handing over and as it is not complied hence the suit was filed.

6. Learned Advocate Mr. Kshirsagar made following submissions:

(a) In the plaint, so far as theory of gratuitous licensee is concerned, no sufficient details are given when the licence was granted and in what circumstances.

(b) He submitted that the burden will shift on the defendants only when plaintiff will prove his case of granting gratuitous licence and unfortunately the plaintiff has not discharged the burden.

(c) He submitted that the trial court as well as first appellate court has overlooked these aspects and they have laid emphasis more on the shortcomings and lacunas in the case pleaded by subsequently added defendants/present Appellants.

(d) According to him, even though the deed of partition is accepted for the moment for the sake of argument, admittedly, there was severance of joint Hindu family but there was no severance of possession and as s