Dismissed

Bhiku Bodkya Madhave ( Since Deced. Thro. His L. H.) Ganpat Bhiku Madhave and Ors. v. Suman Janaradan Kadu and Ors.

Bombay HC24 Jun 2011SA/246/2011

Case brief

AI extract

What is this about?

The second appeal was dismissed. The court held that the appellate courts correctly found as facts that the appellant failed to prove a partition of land between him and the deceased despite mutation entries, and paid the purchase price. Thus, no substantial question of law arose.

What did the court decide?

Second Appeal dismissed. Concurrence with findings of lower courts regarding lack of evidence of partition.

Bhiku Bodkya Madhave ( Since Deced. Thro. His L. H.) Ganpat Bhiku… — Partition | Bombay HC (2011)

SA. 246-11

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL No. 246 OF 2011

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Bhiku Bodkya Madhave (since deceased, represented through the Legal Heirs) ...Appellant Vs. Smt. Suman Janardan Kadu & Ors. ...Respondents

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Mr. P. M. Arjunwadkar, for the Appellant.

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CORAM: V. M. KANADE J. DATE : JUNE 24, 2011

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P.C.

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. Heard the learned counsel for the appellant. Appellant is the

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original defendant No.2. A suit was filed by respondent No.1/ original plaintiff for a declaration that she was legally wedded wife of Janardan Kadu and owner of the property described in paragraph 2 of the plaint. Appellant/ original defendant No.2 claimed to be a tenant in respect of property described in paragraph 2(c) of the plaint. According to the defendant No.2, he was the maternal uncle of Janardan and he and Janardan were jointly cultivating the said land. It is his case that lateron

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SA. 246-11

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there was a partition between Janardan and the appellant and the said land was given to him by Janardan as his share. It is contended that Mutation Entry was also effected accordingly, and his name was entered in the record of rights. It is contended that the said Mutation Entry was lateron certified by the competent authority. It is submitted that both the courts had erred in not relying on the Mutation Entry and had erred in holding that since the appellant was maternal uncle of the husband of the plaintiff, he was not a member of the joint family and as such there was no question of partition of land between them or the appellant could not claim a share in the lands owned by Janardan. The learned counsel has invited my attention to the findings recorded by the trial court as well as appellate court. Secondly, it was submitted that the land being a tenanted land, this issue could not have been decided by the Civil Court.

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It is not possible to accept both the submissions made by the learned counsel for the appellant. Defendant No.2/appellant in his written-statement has specifically pleaded that the purchase price was paid by him and under the provisions of the Tenancy Law, the land was sold in favour of Janardan Kadu and that, thereafter they were jointly cultivating the said land. The appellant, however, has not led any evidence to prove that there was partition between Janardan and the

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SA. 246-11

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appellant and that he was cultivating the land thereafter. Both the courts have considered this aspect and have recorded cogent reasons and have not accepted this submission. The appellant has not produced any other evidence to prove that in fact there was a partition between Janardan and the appellant/ defendant No.2. Mere entry in the record of rights does not confer title on any person. The said entry was made in the year 1997. So far as the second submission is concerned, that is also without any substance. In the written statement there is a specific averment that purchase price was paid by the Defendant No.2 though land was purchased in the name of Janardan, therefore, the question of referring the matter to the tenancy court, does not arise in this case. Suit was filed immediately thereafter. Though initially defendant No.2 was not made a party to the suit, lateron he was added as defendant. It is not possible, therefore, to interfere with concurrent finding of facts recorded by both the Courts below. No substantial question of law is raised in this Second Appeal. Second Appeal is, therefore, dismissed.

Bhiku Bodkya Madhave ( Since Deced. Thro. His L. H.) Ganpat Bhiku Madhave and Ors. v. Suman Janaradan Kadu and Ors.

Case brief

What is this about?

What did the court decide?

Bhiku Bodkya Madhave ( Since Deced. Thro. His L. H.) Ganpat Bhiku Madhave and Ors. v. Suman Janaradan Kadu and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Coram

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