Dismissed

Bhanudas Tukaram Kolpe and Anr. v. Satish Mahipati Kolpe U/G Ratnamala Mahipati Kolpe and Ors.

Bombay HC18 Jun 2012SA/378/2012

Case brief

AI extract

What is this about?

A second appeal in a civil suit for declaration and injunction regarding ownership and possession of a partitioned land. The court dismissed the appeal as the lower courts' concurrent findings of fact were supported by the evidence, specifically an admission by a defendant's witness.

What did the court decide?

Second Appeal dismissed; no costs.

Bhanudas Tukaram Kolpe and Anr. Vs Satish Mahipati Kolpe U/G… — Partition | Bombay HC (2012)

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S.A.No.378/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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SECOND APPEAL NO.378 OF 2012,

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Bhaudas S/o Tukaram Kolpe and another Vs. Satish S/o
Mahipati Kolpe and others.

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.S.S.Choudhari, advocate for the appellants.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 18.06.2012.

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PER COURT :

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Heard.

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The appellants/defendants assail concurrent findings of facts arrived at by both the Court.

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The plaintiffs filed suit for declaration that the suit field which is part of Gat No.136 at village Chinchala Tq. Dharur now Tq. Wadwani, Dist.Beed, are owned and possessed by them and sought injunction restraining the defendants from obstructing their possession. Both the Courts have decreed the suit.

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Mr.Choudhari, learned counsel for the appellant submits that the plaintiffs have not proved their case. The map submitted by the plaintiffs and map submitted by the defendants do not tally.

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S.A.No.378/12

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Even the area in respective possession has not been stated. According to the learned counsel, even document of partition is not produced on record. The plaintiffs can not be said to have proved their case. Both the Courts have not properly appreciated the evidence on record. The judgment suffers from perverse appreciation of evidence.

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The Courts below have observed that it is not in dispute that Gat No.136 was partitioned and was divided in six parts, out of which three portions having total area of 4 hectares 2 Ares was allotted to share of Mahipati - the deceased father of plaintiff No.1. 3 Hectares 19 Ares land in two portions is allotted to share of defendant No.2 and one part of l Hectare 56 Ares is allotted to the share of defendant No.1. The only dispute is with regard to the western south-north portion of 1 Hectare 56 Ares from Gat No.136. Both the parties are claiming said share being allotted to them. The lower appellate Court has observed about the evidence of defendant No.4 as under :

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" The defendants have relied on the evidence of defendant No. 4 and he deposed on behalf of defendant Nos.1 and 3 also. The said witness in cross-examination has admitted the case of the plaintiffs. If the cross-examination of defendant No.4 is perused then it reveals that he admitted that the middle part in eastern portion is allotted to the share of plaintiff is of eastern side and

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S.A.No.378/12

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western side whereas the middle portion in western half part and northern portion of eastern half part is belongs to the defendant No.2 and southern portion from the eastern half part belongs to the defendant No.1. So this evidence on record made it clear that the defendant No.1 is having 01 H. 56 R. land which is the part No.3 in Gut No.136 and not the part No.6. His evidence is made it clear that the part No.6 is belongs to the plaintiff and this admission of defendant No.4 who deposed on behalf of defendant Nos.1 and 3 also sufficient to prove the ownership and possession of the plaintiffs over the part No.6 which is the subject matter of the suit. Therefore, I have no any hesitation to say that the evidence on record sufficiently established that western south north portion of 01 H. 56 R. land out of land Gut No.136 (Part No.6) is owned and possessed by the plaintiffs."

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In view of the aforesaid concurrent findings of facts, no substantial question of law arises. As such the Second Appeal is dismissed. No costs.

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(S.V.GANGAPURWALA,J.)

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Dt.18.06.2012. asp/office/Sa378.12

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S.A.No.378/12

Bhanudas Tukaram Kolpe and Anr. v. Satish Mahipati Kolpe U/G Ratnamala Mahipati Kolpe and Ors.

Case brief

What is this about?

What did the court decide?

Bhanudas Tukaram Kolpe and Anr. v. Satish Mahipati Kolpe U/G Ratnamala Mahipati Kolpe and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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