773-2018-SA with 11607-2018-CA.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.773 OF 2018

WITH

CIVIL APPLICATION NO.11607 OF 2018

Narendra Bhausaheb Marathe (Bhagat)

… Appellant

Versus

Vikas Bhausaheb Marathe (Bhagat) and others … Respondents

……….

Mr. S. P. Bramhe and Mr. R. S. Devdhe, Advocates for appellant.

Mr. G. S. Yadav, Advocate for respondent No.1.

……….

CORAM

:SMT. VIBHA KANKANWADI, J.

DATE

: 8^th February, 2021

ORDER :-

.

Present second appeal has been filed by original defendant No.2

to challenge the judgment and decree dated 04-07-2018 passed in

Regular Civil Appeal No.59 of 2013 by learned District Judge-5, Dhule

modifying the judgment and decree dated 08-04-2013 passed in Regular

Civil Suit No.66 of 2012 (Old Special Civil Suit No.34 of 2008) by

learned Joint Civil Judge Junior Division, Shirpur, District Dhule.

2.

Before turning to the disputed facts, certain admitted facts are

required to be considered. Relationship between the parties is admitted.

Original plaintiff i.e. present respondent No.1 and present appellant and

(1)

773-2018-SA with 11607-2018-CA.odt

other respondents are the legal heirs of Bhausaheb Marathe and original

defendant No.1 – Kalabai Bhausaheb Marathe. Bhausaheb Marathe

expired on 06-07-1999 and Kalabai expired during the pendency of the

suit i.e. on 08-10-2011. Original plaintiff had filed the said suit for

partition and separate possession as well as declaration and perpetual

injunction. Suit agricultural lands bearing Gut No.135/2 admeasuring

68 R and Gut No.67 admeasuring 1 Hectare 36 R situated in village

Untawad and Savargaon stood in the name of Kalabai. It is further

admitted position that the deceased Bhausaheb was serving in

Maharashtra State Road Transport Corporation and he had not inherited

the agricultural lands.

3.

The plaintiff had contended that there was a joint Hindu family of

himself and the other legal heirs of Bhausaheb. He was residing at Dhar

in Madhya Pradesh in connection with his business. Under those

circumstances, all the suit properties i.e. apart from the above-

mentioned agricultural lands, there was Gut No.135/1 admeasuring 68

R situated at Untawad and two house properties were in possession of

defendant No.1, the mother. Defendant Nos.2 and 3 i.e. the sons of

defendant No.1 were residing separately, but used to look after Kalabai

along with plaintiff. Due to the old age, Kalabai started residing with

defendant No.2 four months prior to the institution of the suit. It is the

(2)

773-2018-SA with 11607-2018-CA.odt

contention of the plaintiff that taking disadvantage of the said situation,

defendant No.2 got executed sale deed dated 15-12-2007 of Gut No.67

by showing consideration of Rs.3,00,000/- by fraud on defendant No.1.

Defendant No.1 is suffering from mental disorder and was under

treatment from psychiatrist. He states that defendant No.1 – Kalabai

was not the absolute owner of the said property and, therefore, had no

right to sell out the said land. The said sale deed is not binding on the

other heirs. He, therefore, prayed for partition and separate possession

of his 1/7th share and consequential prayer in respect of declaration,

permanent injunction was prayed.

4.

Defendant No.1 – Kalabai herself had resisted the said suit by

filing written statement. She denied that their existed a joint family as

contended by the plaintiff. According to her, in the lifetime of father, the

plaintiff had relinquished his right and interest in the suit properties by

accepting money. It is stated by her that she had purchased the suit land

Gut No.135/1 in the name of her husband out of love and affection. In

fact, she had independent source of income. Agricultural land bearing

Gut No.135/2 and Gut No.67 are her self acquired properties. Further,

she had purchased plot No.32 from the income of landed properties.

House No.355/1 has been inherited by her from her parental side.