2025:BHC-AUG:28933 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 101 OF 2015 SHAIKH SHAHIN SHAIKH PASHA DIED LRS FARJANABEE AND OTHERS VERSUS SHAIKH PASHA SHAIKH KHAIRUDDIN AND OTHERS ...

Advocate for Appellants : Mr. Thigale Girish K. (Naik).

Advocate for Respondent Nos.2 to 4 : Mr. Tungar Hrishikesh V.

...

CORAM : SHAILESH P. BRAHME, J.

DATE : 07.10.2025 FINAL ORDER :

1. Being aggrieved by concurrent findings of facts recorded by Courts below in dismissing the suit, the appellants/original plaintiffs have preferred this appeal. It is emanating from Regular Civil Suit No.26 of 1996 filed for declaration and perpetual injunction.

2. The genealogy showing relationship of the parties is as follows :

Shaikh Pasha S/o Shaikh Khairuddin (Defendant No.1)

Abzalbi W/o Shaikh Pasha (Plaintiff No.2)

___________________________________________________

Sk. Shahin Sk. Aslam Sk. Islam Sk. Hamid Sk. Anwar P1 P3 P4 P5 P6

3. It is contended that land Gut No.101 belonged to father of the plaintiffs i.e. respondent No.1 Shaikh Pasha, defendant No.1. He partitioned the land in the year 1983 in favour of the plaintiffs and himself. Thereafter, in the year 1986, he sold different parcels from the suit land to defendant Nos.2 to 5 by four sale deeds. It is further contended that the alienation were made without their being any legal necessity and those sale deeds are not binding. In this background, relief of declaration and injunction is solicited in Regular Civil Suit No.26 of 1996.

4. Father/defendant No.1 filed written statement and supported the theory that he partitioned suit land in the year 1983 and application was submitted to the revenue officer for taking entry in the revenue record. It is stated that the plaintiffs were put in possession of their respective shares. It is further contended that the sale deeds executed in favour of defendant Nos.2 to 5 were absolute. He was required to alienate for furnishing security to the loan obtained from them. 5. Respondent Nos.2 to 5 contested the suit stating that they are absolute owner of the suit land and they acquired title under the sale deeds. They also stated that defendant No.1 was in need of money and hence the land was alienated. The entitlement of the plaintiffs is challenged by them.

6. Plaintiffs examined two witnesses. Defendants examined one witness. Trial Court dismissed the suit. Being aggrieved, Regular Civil Appeal No.197 of 2006 was preferred and it was also dismissed.

7. Learned counsel Mr. Thigale submits that the judgment of the Lower Appellate Court is cryptic, unreasoned and perverse. All aspect of the matter has not been covered. Lower Appellate Court only dealt with application for amendment to plaint Exh.44 and order passed thereon. It is submitted that order passed below Exh.44 was challenged before Lower Appellate Court as it was permissible under Section 105 of CPC. The confirmation of the order below Exh.44 is perverse. It is submitted that the oral evidence supports the theory of execution of gift by defendant No.1 to the plaintiffs.

8. It is submitted that both Courts below have wrongly interpreted document at Exh.106 and 107 which is the substantial question of law in the matter. It is further submitted that grounds enumerated in the appeal memo are substantial questions of law and appeal needs to be admitted.

9. Learned counsel Mr. Tungar repels the submissions of the appellants stating that the revenue record, application Exh.106 and 107 indicate that in 1983 partition was effected by defendant No.1. No tangible material is available to show that it was a gift by father to sons. It is submitted that respondent No.1 has specifically taken a plea in the written statement that it was a partition. It is contended that amendment proposed by application Exh.44 was changing nature of the suit and would have divested the defence raised by the respondents.

10. In Muslim law, there is no concept of joint family property, legal necessity or partition at t