Dismissed

Dattopant Gangadhar Deshpande and Ors. v. Vijaykumar Gopalrao Deshpande Deceased through Lrs Chitra Vijaykumar Deshpande

Bombay HC1 Feb 2011SA/951/2009

Case brief

AI extract

What is this about?

On Second Appeal, the High Court rejected the appellants' challenge to a decree dismissing a suit for partition of Joint Hindu Family property. The Court upheld the lower courts' finding based on an earlier sale deed and the negative answer to a limitation issue, holding no substantial question of law arose.

What did the court decide?

Appeal dismissed for lack of merits; record sent back.

Dattopant Gangadhar Deshpande and Ors. Vs Vijaykumar Gopalrao… — Partition | Bombay HC (2011)

¶1

1 S.A.951.09

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

¶3

SECOND APPEAL NO. 951 OF 2009 WITH

¶4

 CIVIL APPLICATION NO. 13468 OF 2009

¶5

1.Dattopant S/o Gangadhar Deshpande,
Age 74 Years,Occup. Business,
R/o Georai, Taluka : Georai,
District Beed.
And others ...APPELLANTS

¶6

 VERSUS

¶7

1. Vijaykumar S/o Gopalrao Deshpande,
Since deceased through his L.Rs.
And others. ...RESPONDENTS.

¶8

...

¶9

Shri.Rajendra S. Deshmukh Advocate for Appellants
Shri.S.V.Natu,Advocate for Respondent No.2

¶10

 ...
CORAM: SHRIHARI P.DAVARE, J.

¶11

 DATE : 1st FEBRUARY, 2011.

¶12

PER COURT :

¶13

1. Heard Mr.Rajendra S. Deshmukh,learned counsel
for appellants, and Mr.S.V.Natu, learned counsel
for respondent No.2.

¶14

2. Unsuccessful plaintiffs, who lost before

¶15

trial Court, as well as First Appellate Court,
have preferred present Second Appeal challenging

¶16

2 S.A.951.09

¶17

the Judgment and order dated 17th August, 2009,

¶18

rendered by District Judge-2 Beed, in Regular
Civil Appeal No.109 of 2004 and also challenged
the Judgment and decree dated 14th July, 2004, in
Regular Civil Suit No. 225 of 1992, passed by
learned Civil Judge Junior Division, Georai.

¶19

3. The parties are referred to hereinafter as
per their original status as plaintiffs and

¶20

defendants.

¶21

4.Plaintiffs filed Regular Civil Suit
No. 225 of 1992 for partition and separate
possession under the provisions of Hindu Law.

¶22

5. It is case of the plaintiffs that, the

¶23

commonancestor Vitthalrao had four sons namely
Gangadhar, Ramrao, Hanumatnrao and Gopalrao. The
plaintiffs are sons/daughters of Gangdhar, Ramrao
and Hanumantrao, whereas defendants are heirs of

¶24

Gopalrao. According to the plaintiffs, suit
property is Joint Hindu Family property of

¶25

3 S.A.951.09

¶26

plaintiffs and defendants, which is governed by

¶27

Mitakashara school of Hindu law. The suit
properties are Joint Family properties and are
still joint today and no partition was effected
between the plaintiffs and defendants, by metes
and bounds. No partition was effected in between

¶28

the father of plaintiff Nos. 1 and 2 and
defendants till the death of father of plaintiff
Nos.1 and 2. It is case of the plaintiffs that
plaintiffs and defendants are having separate
electric meters and separate water connection in
the suit property.

¶29

6. It is case of the plaintiffs that one

¶30

Anantrao Deshpande had filed Regular Civil Suit
No.376/1/55 before Munsif Magistrate, Georai and
said suit was decreed. In the said suit, father
of the plaintiffs No.1 and 2, plaintiffs No. 3 and

¶31

4, father of defendants No.1 to 3 and husband of
defendant No.4 were defendants. The said suit was

¶32

decreed and decree was executed by Anantrao
Deshpande. It was held that plaintiffs and

¶33

4 S.A.951.09

¶34

defendants are share holders in the said suit

¶35

property, and hence, they had requested the
father of defendant Nos. 1 to 3 and husband of
defendant No.4, to effect partition of suit
property, even after death of defendant Nos. 1 to
3 and husband of defendant No.4, but the
defendants flatly refused to do so. Hence,
plaintiff made an application before Municipal
council, Georai on 14.05.1992 for recording their
names to the suit property, but the Municipal
Authorities did not take any step, and hence,
plaintiff filed suit bearing Regular Civil Suit
NO. 225 of 1992 and prayed for partition of the
suit property by metes and bounds and claimed 1/4th
share for plaintiff Nos. 1 to 4 and also direction
for separate possession to the plaintiffs of their
share.

¶36

7. Defendants filed their written statement and
resisted the suit claim. It is contended by the
defendants that the suit property is owned by the
plaintiffs and they are not in possession thereof.

¶37

5 S.A.951.09

¶38

It is also the case of the defendants that suit

¶39

property was ancestral property of the plaintiffs
and same was independently given in partition to
the father of plaintiffs No.1 and 2. Therefore,
said suit property was the property of father of
plaintiffs No.1 and 2. As per partition between
father of plaintiffs No.1 and 2, plaintiffs No. 3
and 4 and father of defendant No.1 have no share

¶40

in the suit property. It is also contention of the
defendants that plaintiffs have no concern with
the suit property. They have no undivided share in
suit property. According to defendants, partition
of the ancestral property between father of
plaintiffs No.1 and 2, namely, Gangadhar,
Plaintiffs No.3 and 4 and father of defendant No.1
has been effected in between year 1950 to 1952.
According to defendants, partition of landed as
well as household properties, between Gangadhar,
plaintiffs No.3 and 4 and father of defendant No.
1, had been effected before 1950-1952.

¶41

8. Defendants admitted that Gangadhar had

¶42

6 S.A.951.09

¶43

executed sale deed of his share in House property
No.358 on 09.08.1956. It is contention of the
defendants that sale deed was not of 03 khans out
of 46 khans, but of the entire share of Gangadhar
in house No. 358. By such sale deed, Gangadhar
sold his share in house No. 358. Plaintiffs have
not challenged the sale deed in the present suit,
and therefore, same is binding upon them.

¶44

9.As regards, Regular Civil Suit No.
376/1/1955, it is contended that father of the
plaintiffs No.1 and 2, plaintiffs No.3 and 4 and
father of defendant No.1, were the parties to
that suit and said suit was decreed. Accordingly,
defendants contended that there is no substance in
the present suit and same be dismissed.

¶45

10. After considering the pleadings and evidence
adduced and produced before the trial Court and
after considering rival submissions, trial Court
dismissed the suit, on 14.07.2004. Being aggrieved
and dissatisfied by the said Judgment and Decree

¶46

7 S.A.951.09

¶47

plaintiffs preferred Regular Civil Appeal No.194
of 2004, but same also came to be dismissed by
District Judge-2, Beed, on 17.08.2009. Hence,
plaintiffs challenged both the said Judgments in
present appeal.

¶48

11. It appears that after considering the
pleadings, trial Court framed issues and specific

¶49

issue was framed “whether plaintiffs and
defendants are members of Hindu Joint family?, but
the same was answered in the negative, as well as

¶50

specific issue was framed “Whether the suit is
within limitation?, but same was also answered in

¶51

the negative and consequently next issue in
respect of separate possession of plaintiffs was
also answered in the negative. So also, no
specific issue was framed in respect of sale deed
at Exh.180, but the issue “Whether Gangadhar sold

¶52

only 03 khans out of 46 Khans of house No. 358 of
Georai in favour of defendant No.1?, was framed
and was also answered in the negative, which
consequently, resulted into dismissal of the suit

¶53

8 S.A.951.09

¶54

filed by the plaintiffs. Moreover, the Appellate
Court also confirmed the findings of the trial
Court and dismissed the Appeal filed by the
plaintiffs herein.

¶55

12. After considering reasoning recorded by
trial Court, as well as First Appellate Court, I
do not find any error in respect of factual
aspects and legal position. Therefore, no
interference is called for in the said concurrent
findings, in the present Second Appeal. Much
emphasis is given by the learned counsel for the
appellants in respect of sale deed Exh.180 and its
translation at Exh.179, dated 09.08.1956 and he
contended that 03 khans out of 46 khans were sold
by Gangadhar to Gopalrao by the said sale deed.
However, plain reading of Marathi version of the
contents of sale deed clarifies that the entire

¶56

house property No. 358 was sold by Gangadhar to
Gopalrao, by way of said sale deed. Therefore,

¶57

there is no question of formulation of the
substantial question of law in that respect, as

¶58

9 S.A.951.09

¶59

canvassed by the learned counsel for appellants.

¶60

13. Moreover, learned counsel for appellants
advanced argument on the aspect of limitation, but
considering reasons given by the learned trial
Court, as well as by First Appellate Court in that
respect, I am of the view that there is no
substance in the submission made by the learned
counsel for appellants in that respect.

¶61

14. In the circumstances, no substantial
question of law could be formulated, and

¶62

therefore, present Appeal lacks merits, and hence
same stands dismissed. Record and Proceeding be
sent back to the concerned court.

¶63

15. In the light of dismissal of Appeal,

¶64

nothing survives for consideration in the Civil
Application and same is also disposed of
accordingly.

¶65

 Sd/-

¶66

 [SHRIHARI P.DAVARE, J.]

¶67

MTK

¶68

10 S.A.951.09

Dattopant Gangadhar Deshpande and Ors. v. Vijaykumar Gopalrao Deshpande Deceased through Lrs Chitra Vijaykumar Deshpande

Case brief

What is this about?

What did the court decide?

Dattopant Gangadhar Deshpande and Ors. v. Vijaykumar Gopalrao Deshpande Deceased through Lrs Chitra Vijaykumar Deshpande

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Zamsingh Keharsingh Jamdar Vs the State of Mah and Anr.

Pravara Rural Education Society Vs Namdeo Pandharinath Parkhe

Laxumibai Laxman Sanap Vs Tushar Prabhakar Palkhe

Rambhau Kashinath Gore and Ors. Vs Kondabai Bhagoji Waghmare

Charushila@ Sonu Benjamin Joel Vs Benjamin@ Bobby Lamuel Joel

Kesharbai Ghanshyam Mule Vs Wanchalabai Vitthalrao Jadhav