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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

SECOND APPEAL NO. 296 OF 2013

Smt. Meera Margya Gavit

& others

.. APPELLANTS

VERSUS

Mogarya s/o Rajya Gavit

& others

.. RESPONDENTS

Mr. A.G. Magare, advocate for appellants.

Mr. Gajanan Kadam, advocate for respondents 1,3 and

4.

=====

CORAM : R. G. KETKAR, J.

DATE : 10^th DECEMBER, 2014.

PER COURT :

1.

Heard Mr. Magare, learned counsel for the

appellants and Mr. Kadam, learned counsel for

respondents at length.

2.

By this appeal under section 100 of the Code of

Civil Procedure, 1908 (for short 'C.P.C.'), original

defendants have challenged the judgment and decree

dated 15.04.2004 passed by the learned Civil Judge,

Junior Division, Navapur in Regular Civil Suit No.

15/2013 as also the judgment and decree dated

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11.10.2010 passed by the learned District Judge -1,

Nandurbar in Regular Civil Appeal No. 18/2004. By

these orders the Courts below decreed the suit

instituted by respondents (hereinafter referred to

as plaintiffs) and declared that they are owners of

land bearing gat no. 182 admeasuring 4 H situate at

Devalipada, Tq. Navapur, Dist. Nandurbar (for short

'suit land'). The Courts below directed defendants

to handover possession of the suit land to the

plaintiffs within a period of two months from the

date of the order.

3.

In support of this appeal, Mr. Magare reiterated

the submissions that were advanced before the Courts

below. He submitted that the suit was decreed on

15.04.2004. Aggrieved by that decision, defendants

preferred appeal before the District Court. During

the pendency of appeal, appellant no. 1/defendant

no. 1 Ms. Meera Gavit died in the year 2007.

However, her legal heirs were not brought on record.

In other words, Mr. Magare submitted that the appeal

was decided against a dead person.

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4.

He further submitted that the suit land is a

joint family property. Sukrya died leaving behind

his son Velya. Velya had two sons namely Rajya and

Vejya. Plaintiffs are legal heirs of Rajya and

defendants are legal heirs of Vajya Velya. He

submitted that Rajya being the elder son was a karta

of the joint family. On 30.04.1942, the Government

allotted suit land to Rajya being the elder son of

Velya. In other words, he submitted that the suit

land is joint family property. On 08.07.1992

partition was effected by giving wardi. Gat no. 122

was divided into gat no. 122/1 which was given to

Rajya and gat no. 122/2 was given to Vajya.

Mutation entry 288 was certified. Mr. Magare

submitted that aggrieved by that decision,

plaintiffs preferred appeal before the Sub-

Divisional Officer. The appeal was dismissed.

Aggrieved by that decision, they preferred appeal

before the Additional Collector who set aside the

order of the Sub-Divisional Officer and remanded the

matter to the Tahsildar. The Tahsildar ultimately

held that the mutation entry was properly certified.

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In other words, Mr. Magare submitted that gat no.

122 was partitioned on 08.07.1992 and gat no. 122/1

was given to the share of Rajya and gat no. 122/2

was given to the share of Vajya. He submitted that

the Courts below failed to appreciate that the

Tahsildar had accepted the case of partition and

therefore committed serious error in decreeing the

suit. The Courts below ought to have held that the

suit land was joint family property and gat no.

122/2 was allotted to the share of Vajya and

consequently, appeal requires consideration as it

involves substantial question of law.

5.

On the other hand, Mr. Kadam supported the

impugned orders. He submitted that the suit land

was allotted by the Government to Rajya on

30.04.1942. he submitted that