Dismissed

Prakash Sayaji Jagtap v. Sharada Alias Jijabai Sayaji Jagtap

Bombay HC20 Jun 2013SA/483/2012

Case brief

AI extract

What is this about?

This second appeal challenged a decree for partition of family property. The court found that the lower courts correctly rejected the appellants' claim of prior partition due to lack of evidence and the appellants were minors at the time. The appeal failed as no substantial question of law arose.

What did the court decide?

The appeal was dismissed, and the connected Civil Application was also dismissed.

Prakash Sayaji Jagtap Vs Sharada Alias Jijabai Sayaji Jagtap — Partition | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.483 OF 2012

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WITH

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CIVIL APPLICATION NO.963 OF 2012

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Prakash Sayaji Jagtap and another … Appellants Vs. Sharada alias Jijabai Sayaji Jagtap and another … Respondents

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Mr. P. G. Lad for Appellants.

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CORAM : R. G. KETKAR, J. DATE : 20^TH JUNE, 2013

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P.C.:

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Heard Mr. Lad, learned Counsel for the appellants at length.

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By this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original defendants have challenged the judgment and decree dated 14.08.2007 passed by the learned 5^th Joint Civil Judge, Junior Division, Karad in Regular Civil Suit No.414 of 2000 as also the judgment and decree dated 17.12.2011 passed by the learned District Judge-2, Karad in Regular Civil Appeal No.111 of 2007. By these orders, the Courts below decreed the Suit instituted by the respondents for partition and separate possession of their share.

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In support of this Appeal, Mr. Lad submitted that defendants' mother died on 03.02.1980. After the death of their mother, their father Sayaji remarried on 17.08.1980. As Sayaji was intending to remarry, their grandmother Babutai had held meeting with Sayaji and the maternal uncle of the defendants and effected partition of the properties among Sayaji, his mother and two sons. In the partition, land bearing Gat Nos.856, 887 and 254 as also the suit houses were allotted to the share of the defendants. Likewise, land bearing Gat Nos.918, 932 and 934 were given to the share of Sayaji. After the marriage of the plaintiff No.1 with Sayaji, plaintiffs'

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names were mutated in the revenue record. In short, the case of the defendants is that there was previous partition, and therefore, the Suit for partition and separate possession is not maintainable.

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I have considered the submissions advanced by Mr. Lad. I have also perused the material on record. In paragraph 11, the learned District Judge has discussed the evidence of D.W.1-Prakash Sayaji Jagtap at exhibit-102 as also D.W.2 Papurao Mahadeo Chavan at exhibit-103. D.W.2 is the maternal uncle of the defendants. After discussing their evidence, in paragraph 13, the learned District Judge observed that except the oral evidence of D.W.2, there is no other evidence of partition. Admittedly, defendants were minor and they were 1 and 2 years old at the time of alleged partition. The evidence of D.W.1 was disbelieved. D.W.2 being the interested person as also having regard to the meager area mutated in the name of the plaintiffs, the learned District Judge came to the conclusion that the defendants have failed to establish the previous partition. The defendants have not shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the basis of evidence on record, no reasonable person could have come to that conclusion. Merely because another view is possible on the basis of evidence, this Court will not be justified in exercising jurisdiction under Section 100 of the C.P.C.

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No question of law much less any substantial question of law arises in this Appeal. In the result, Appeal fails and the same is dismissed.

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In view of the dismissal of the Appeal, nothing survives in Civil Application No.963 of 2012 and the same is dismissed .

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(R. G. KETKAR, J.)

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Minal Parab

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Prakash Sayaji Jagtap v. Sharada Alias Jijabai Sayaji Jagtap

Case brief

What is this about?

What did the court decide?

Prakash Sayaji Jagtap v. Sharada Alias Jijabai Sayaji Jagtap

Case brief

What is this about?

What did the court decide?

What the court decided

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