Dismissed

Pandurang Maruti Patil v. Bajirao Maruti Patil and Ors.

Bombay HC5 Sept 2007SA/121/2006

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed the second appeal in a partition suit. Holding that the lower appellate court correctly found no error in the trial court's decree based on 7/12 extracts since the appellant failed to plead that the property belonged to a trust, the court refused to reappreciate evidence.

What did the court decide?

The second appeal was dismissed. No costs. Any civil application does not survive in the light of disposal of the second appeal.

Pandurang Maruti Patil Vs Bajirao Maruti Patil and Ors. — Partition | Bombay HC (2007)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE SIDE

¶2

 Second Appeal no. 121 of 2006.

¶3

 Pandurang Maruti Patil ..Appellant

¶4

vs.

¶5

 1. Bajirao Maruti Patil
 and others ..Respondents

¶6

 Shri S.M.Railkar for appellant.
 Shri Milind Deshmukh for respondent no.1

¶7

CORAM: S.C.DHARMADHIKARI J
5th September,2007

¶8

P.C.

¶9

 1. Heard Shri Railkar for the appellant and Shri
 Deshmukh for the respondent no.1. Other
 respondents though served are absent.

¶10

 2. The second appeal is directed against the
 judgment and order dated 11th November, 2005 in
 Reg.Civil Appeal no.444 of 2004.

¶11

 3. Reg.Civil Appeal was against the judgment and

¶12

 decree of the learned Civil Judge (Jr.Dn.), Panhala
 in Reg.Civil Suit No.130 of 2002 delivered on 1st
 October, 2004.

¶13

 4. The appellant/original plaintiff challenged the
 judgment and decree of the Trial Court dismissing
 the suit for partition and separate possession.

¶14

 5. It is argued before me by Shri Railkar that

¶15

 7/12 extracts in respect of the suit property would
 demonstrate that the lands donot belong to
 the

¶16

 appellant before me but to a Trust, namely, Hasrat
 Peer.

¶17

 6. The Trial Court relied upon these extracts and
 dismissed the suit. The Trial Court was of the
 opinion that the material has not been placed
 before it to show that original defendant no.1 had
 been granted any right by the said Trust so as to
 conclude that the lands belonged to him as the
 owner.

¶18

 7. The lower Appellate Court in para 20 of its
 judgment has referred to 7/12 extracts and after
 perusal thereof has held that the name of original
 defendant no.1 has been recorded as the owner under
 the guardianship of his father, the original
 defendant no.2. The area owned and possessed by
 them has been specifically mentioned in the 7/12
 extracts. In fact, there is no dispute between the
 parties with regard to this aspect. The lower
 Appellate Court was of the view that if the
 property belongs to Deosthan/Public Charitable
 Trust and the defendants have no documents to

¶19

 establish their right therein, then, it was

¶20

 incumbent upon the defendants to have placed this
 aspect in their pleadings. There was no pleading
 on this point and, therefore, no amount of evidence
 de hors the pleadings can be of any assistance are
 the findings and conclusion of the lower Appellate
 Court.

¶21

 8. Despite the usual pursuasive efforts Shri
 Railkar could not point out to me as to how this
 finding can be said to be vitiated, leave alone, it
 being termed as perverse since the finding is based
 on appraisal of the material before the Court and
 when admitted fact is that there is no plea,
 spedifically contending that the property belongs
 to the Trust, then, I see no error being committed
 by the lower Appellate Court.

¶22

 9. It cannot be said to be a perverse finding.
 This being a second appeal, further appreciation
 and appraisal of the material is not permissible.
 The only submission before me, therefore, fails.
 No substantial questions of law is involved. The
 second appeal is dismissed. No costs.

¶23

 10. Civil Application, if any, does not survive in
 the light of disposal of the second appeal.

¶24

 (S.C.DHARMADHIKARI J.)

Pandurang Maruti Patil v. Bajirao Maruti Patil and Ors.

Case brief

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What did the court decide?

Pandurang Maruti Patil v. Bajirao Maruti Patil and Ors.

Case brief

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What the court decided

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