1 SA 286 of 1994

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Second Appeal No.286 of 1994

*

Bhanudas Yeshwant Nagawade

Since deceased through legal

representative :

Alka Babanrao Murkute

Age 48 years,

Occupation : Agriculture,

R/o Vanjarwadi (Dhanora),

Taluka Jamkhed,

District Ahmednagar.

.. Appellant.

Versus

1)

Dhondiba @ Bhimrao Bhanudas

Nagawade,

Age 42 years,

Occupation : Agriculture

R/o Dhanora, Taluka Jamkhed,

District Ahmednagar.

2)

Chandrabhaga Yeshwant Nagawade

Age 85 years,

Occupation : Agriculture

(Name is deleted in Appellate Court)

3)

Gangubai Bhanudas Nagawade,

Age 45 years,

Occupation : Agriculture

R/o As above.

4)

Rahibai Bhanudas Nagawade

Age 55 years.

R/o Wangi, Taluka Karmala,

District Solapur.

5)

Prayagbai Jagannath Jadhav,

Age 55 years,

Occupation : Agriculture

R/o As above.

.. Respondents.

2 SA 286 of 1994

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Shri. S.S. Bora, Advocate, for appellant.

Shri. S.N. Gaikwad, Advocate, for respondent No.1.

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CORAM: T.V. NALAWADE, J.

DATE : 28^th APRIL 2014

JUDGMENT:

1)

The appeal is filed against judgment and decree

of Regular Civil Appeal No.5 of 1987 which was pending

in the District Court Ahmednagar. The First Appellate

Court has dismissed the appeal filed by the present

appellant against the judgment and decree of Regular

Civil Suit No.68 of 1976 which was pending in the Court

of the Civil Judge, Junior Division, Jamkhed. Decree of

partition and possession is given in favour of respondent

No.1. Both the sides are heard.

2)

The suit was filed by respondent No.1 in

respect of seven agricultural lands and two house

properties. It is the case of the plaintiff that the suit

property was the ancestral property of his predecessor –

3 SA 286 of 1994

Yeshwant Nagawade. It is contended that defendant No.2

Chandrabhaga is widow of Yeshwant. It is contended that

Yeshwant left behind other heirs like a son by name

Bhanudas (defendant No.1) and a daughter by name

Prayagbai (defendant No.5). It is the case of the plaintiff

that he is son of defendant No.1 and defendant No.3. It is

contended that defendant No.3 is the first wife of

defendant No.1 and defendant No.4 is second wife of

defendant No.1.

3)

It is the case of the plaintiff that in April 1976

he demanded partition from defendant No.1 as he had

some dispute with defendant No.1. It is contended that

defendant No.1 refused to effect partition and so plaintiff

was required to file suit for partition. He has contended

that he has two Anna four Paisa share in the suit

properties.

4)

Defendant No.1 contested the suit. He denied

that plaintiff is his son. He contended that in the year

1944 he had married with defendant No.3 Rahibai, but

Rahibai was of bad character and she left his company in

4 SA 286 of 1994

the year 1949. It is contended that Rahibai was living in

village Wangi since 1949 and during this period there was

no cohabitation between him and Rahibai. It is contended

that the plaintiff is born out of illicit relations of Rahibai.

5)

It is the case of defendant No.1 that he had

filed proceeding for divorce against defendant No.3 in the

year 1955. It is contended that he compromised with

defendant No.3 out of Court and then divorce by mutual

consent was obtained by preparing a divorce document

on 21-9-1955.

6)

It is the case of the defendant No.1 that

plaintiff was born in village Wangi and in the record of

school name of father of the plaintiff was shown as Bhau

Jagtap. It is contended that as per the school record

plaintiff was born on 1-6-1958 and so he cannot be treated

as a son of defendant No.1.

7)

The defendant No.3 Rahibai, mother of the

plaintiff, filed consent written statement. She claimed that

as per Hindu Law she has also share in