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SA No.490/2011

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.490 OF 2011

WITH

CIVIL APPLICATION NO.10851 OF 2019

1)

Durgadas s/o Dagdu Giri

and Ors.

= APPELLANTS

(Orif.Deft.Nos.2,7 & 8)

VERSUS

1)

Ganesh Giri s/o Dagdu Giri

and Ors.

= RESPONDENTS

(Resp.No.1 is orig.Pltff. &

Nos.2 to 6 are orig. defts.

Nos.2 to 6)

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Mr.VR Dhorde, Advocate for Appellants;

Mr.DP Palodkar, Advocate for Resp.Nos.1 and 3-A;

Mr.PS Dighe, Advocate for Resp.No.5.

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CORAM : SMT.VIBHA KANKANWADI,J.

RESERVED ON : 20/07/2021

PRONOUNCED ON : 26/07

/2021

PER COURT :-

1.

Heard learned Advocates appearing for the

respective parties.

2.

Present appeal has been heard for

admission. Present appellants are the original

defendant Nos.2, 7 and 8. Present Respondent No.1

is original plaintiff, who had filed Regular Civil

Suit No.55/2003 before Civil Judge, Junior

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SA No.490/2011

Division, Sillod, Tq. Sillod, District Aurangabad

for declaration, partition and separate possession.

It came to be decreed on 24.11.2008. Present

appellants then preferred Regular Civil Appeal No.

353/2008 before the District Court at Aurangabad.

It was heard by learned District Judge-3,

Aurangabad and came to be dismissed on 31.1.2011.

Hence, the present Second Appeal.

3.

Before turning to the submissions, the

legal position will have to be reiterated here,

which has been laid down by the Hon’ble Supreme

Court in the case of Kirpa Ram (Deceased) Through

L.Rs. And Ors. Vs. Surendra Deo Gaur and Ors. -

(2021) 3 Mah.L.J. 250, and Ashok Rangnath Magar

Vs. Shrikant Govindrao Sangvikar – (2015) 16 SCC

763

4.

Though before admission of the Second

Appeal, the respondents are not even required to be

called upon, however, it appears that in this case

already, way back in the year 2013, notices were

issued to the respondents.

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SA No.490/2011

5.

It has been vehemently submitted on

behalf of the appellants that both the courts below

have not properly considered the facts and the law

involved in this case. The suit properties were

belonging to father of Respondent No.1 (original

plaintiff) and original defendant Nos.3 to 6.

However, defendant No.2, i.e. present appellant

No.1 had taken a specific contention that after

demise of their father Dagdu, the family properties

were partitioned in 1975. Separate shares were

given to the plaintiff and defendant Nos.3 and 4

from the ancestral lands bearing Gut No.61 and 18

from village Kelgaon. The daughters had

relinquished their shares. At that time, no share

was given to deft.No.2 from those two gut numbers,

but he accepted that he would take the suit fields,

which were mortgaged by Dagdu and were under

litigation. He had taken that step at his risk.

Later on, he had spent huge amount on the

litigation and repaid the loan taken on the suit

lands from Land Development Bank. The litigation

was in his favour and, therefore, after decision of

the said litigation, he has become an exclusive

owner of the suit properties and thereafter he has

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SA No.490/2011

partitioned it amongst his sons – deft.Nos.7 and 8

and, therefore, now the plaintiff cannot seek

partition. The learned Courts below have wrongly

interpreted the alleged admission given by present

appellant No.1 in his cross-examination, wherein he

has stated that he had sold certain portion from

Gut No.18. In fact, there was nothing produced by

the plaintiff on record to support the said

suggestion. It was not even the case of the

plaintiff that deft.No.2 has sold any such portion

rather it was not even contended that in the

earlier partition, which is an accepted position,

certain portion of the land was given to deft.no.2.

He placed reliance on the decision in the case of

Kesharbai alias Pushpabai Eknathrao Nalawade

(Dead) by L.rs.and Anr. Vs. Tarabai Prabhakarrao

Nalawade and Ors. - (2014) 4 SCC 707, wherein, it

has been held and observed that, the joint and

undivided fam