The High Court dismissed the second appeal. The court held that the concurrent findings of the lower courts regarding ownership and partition were binding under Section 100 of the CPC and could not be interfered with.
The appeal and the civil application stand dismissed in limine with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
SECOND APPEAL NO. 887 OF 2004
Shri Pandurang Mallarling Honmane
& ors. ... Appellants
V/s
Shri Maruti Mallarling Honmane ... Respondent
Shri P.R. Arjunwadkar for the appellants.
Shri S.M. Oak with Shri Ambar Joshi for the respondent.
CORAM: P.V. KAKADE, J.
DATED: 14TH DEC., 2004.
P.C.:
1. This is an appeal preferred by the appellant
defendants against the judgmentand order passed by the
Addl. District Judge, Pandharpur dated 8.4.2003
dismissing their appeal and confirming the order of the
Civil Judge, Jr. Divn., Mangalwedha, decreeing the
plaintiffs’ suit partly with declaration that the
plaintiff was entitled for partition and separate
possession of 1/3 share in the suit properties.
2. I have heard the learned counsel for both parties.
Perused the record.
2
3. The suit was filed by the plaintiff for declaration
that plaintiff was the owner and in possession of Gat
No. 1160, 1487 and 2057 and the defendants had no any
right in the said properties situated at village
Kacharewadi, Tal. Mangalwedha, and in the alternative
it was also prayed that if it is found that the said
lands were not given to the plaintiff in partition, then
he was entitled for partition of Gat No. 1477. It was
also prayed that 1/3 share in the suit properties be
granted alongwith the injunction.
The learned Trial Judge adjudicated the dispute on
merits and came to the conclusion that the plaintiff was
successful in proving that land Gat No. 1477 was liable
for partition and it was not established that other land
was allotted to the plantiff in partition. Therefore,
it was held that he was entitled to partition and
possession of his 1/3 share in the entire landed
property. As such the suit came to be decreed.
The appeal was carried to the District Court. The Addl.
District Judge, Pandharpur adjudicated the appeal on
merits and found that the lower Court had properly
appreciated the evidence and as such it did not require
3
interference. The lower appellate Court held that
appellants failed to prove that Bajarang has become
owner of the land of Gat No. 1477 and also held that
respondent No.2 did not prove that the oral partition
was effected of other lands and consequently the appeal
came to be dismissed. Hence the present appeal.
4. At the outset, it may be noted that the advocate for
the appellant vehemently urged pertaining to the finding
to the effect that appellant had failed to prove that
Bajarang had become owner of the land of Gat No.1477.
In this connection, on perusal of the entire evidence as
well as judgments of both the Courts below, it is clear
that merely because Malairsing made Vardi application to
enter survey No.559 admeasuring 13 Acres 27 Gunthas in
the name of his grandson Bajarang which would not amount
transfer of property in question and that giving of
Vardi application and certification of the mutation
entry would not create any title in favour of Bajarang.
On this basis, the findings appear to have been recorded
properly, which in my considered view, would not brook
any interference.
5. In view of these aspects and in view of the ratio
laid down by the Supreme Court in the case of Kondiba
4
Dagadu Kadam v/s Savitribai Sopan Gujar & ors., reported
in A.I.R. 1999 SC 2213, that the concurrent findings of
facts howsoever erroneous cannot be disturbed by the
High Court in exercise of the powers conferred under
Sec.100 of the C.P.C. In a case where from a given set
of circumstances two inferences are possible, one drawn
by the lower Appellate Court is binding on the High
Court in second appeal. Adopting any other approach is
not permissible in the present case. In relation to
this aspect, both the Courts below are seen to have
appreciated the entire evidence in proper perspective
and, therefore, it would brook no interference even at
this stage.
In the result, the appeal stands dismissed in limine
with no order as to costs.
Consequently, the civil application also stands
dismissed with no order as to costs.
2 issues framed by the court
Whether the concurrent findings that mutation entry and Vardi application did not transfer ownership of the land could be disturbed in the second appeal.
Whether the lower appellate court's finding that oral partition was not effected of other lands could be reconsidered.
Colour shows how this judgement treated each authority
Kondiba Dagadu Kadam v/s Savitribai Sopan Gujar & ors.Referred¶22
A.I.R. 1999 SC 2213 · Who else cites this
1 provisions across 1 enactments
Shri Pandurang Mallarling Honmane & ors.
Shri Maruti Mallarling Honmane
P.V. KAKADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court