Dismissed

Bhau Ramchandra Agarkar and Ors. v. Shantaram Pandurang Agarkar and Ors.

Bombay HC5 Jan 2009SA/464/2007

Case brief

AI extract

What is this about?

The Court dismissed the second appeal against a decree for partition and possession. The trial court relied on uncontroverted evidence that the properties were joint family. The High Court found no substantial question of law as the appellants failed to lead evidence to rebut the presumption of jointness. The civil application was also dismissed.

What did the court decide?

The second appeal and the civil application are dismissed; prayer for interim relief is rejected.

Bhau Ramchandra Agarkar and Ors. Vs Shantaram Pandurang Agarkar and… — Partition | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 464 OF 2007 WITH CIVIL APPLICATION NO. 1186 OF 2005

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Bhau Ramchandra Agarkar & ors........Appellants

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versus

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Shantaram Pandurang Agarkar & ors........ Respondents.

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Mr. R.S. Apte Sr. adv. I/b A.A. Garge adv. for the Appellants None for the respondents

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CORAM: A. P. DESHPANDE, J. DATED : 5th JANUARY, 2009.

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P.C.:

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This second appeal takes an exception to the judgment and decree passed in favour of the respondent/plaintiffs for partition and separate possession. The decree passed by the trial court has been confirmd by the first appellate court by dismissing the appeal. Hence this second appeal.

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The plaintiff/Respondent had approached the trial court by contending that they have ½ share in the suit property, the properties being ancesstral. The present appellants by filing written statement contended that though the propeties were joint family properties earlier, there was a partition between the plaintiffs and the defendants about 50 years back and thus the

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suit properties which are in possession of the defendants are owned by them. The plaintiffs led oral evidence that there had never been any partition and the properties are joint family properties. Per contra the present appellants/defendants in the first place chose not to cross examine the witnesses examined by the plaintiff and in the second place further chose not to lead any evidence whatsoever and did not step into the witness box. Relying on the uncontroverted evidence led by the plaintiffs the trial court passed the decree which is confirmed by the first appellate court. It is obvious that the burden to establish and pove that there was partition, is on the defendants as the presumption of jointness was in favour of the plaintiff. No evidence has been led to rebut the said presumption. No substantial question of law emerges in the present appeal. Hence second appeal is dismissed.

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At this stage, the learned counsel for the appellant prays for continuation of ad-interim relief. As I have declined to admit the second appeal, continuation of ad-interim relief would be unfair and unjust to the respondent. Hence the prayer is rejected.

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3. In view of the dismisal of second appeal, the civil application does not survive and the same is also dismissed.

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(A. P. DESHPANDE, J.)

Bhau Ramchandra Agarkar and Ors. v. Shantaram Pandurang Agarkar and Ors.

Case brief

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What did the court decide?

Bhau Ramchandra Agarkar and Ors. v. Shantaram Pandurang Agarkar and Ors.

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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Coram

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