Second appeal filed against the dismissal of an appeal in a property partition suit. The High Court held that no question of law arises as the lower courts correctly upheld the purchaser's right to enforce partition.
The second appeal was dismissed; consequently, the civil application was disposed of with no order preserved.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
11.sa.520.2016.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 520 OF 2016 WITH CIVIL APPLICATION NO. 1054 OF 2016 IN
SECOND APPEAL NO.520 OF 2016
Nagesh Vishnu Sawant & Ors.
...Appellants.
vs
Babaji Soma Sawant ...Respondent.
Ms Archana K. Shirsekar for the Appellants None for the Respondent
CORAM : N.M.JAMDAR, J. APRIL 25, 2017
P.C. :
Regular Civil Suit No.44 of 2000 was filed by Respondent No.1 for declaration, perpetual injunction and partition of 1/3rd share in the suit property. The suit property is situated at village Tamboli, Taluka Sindhudurg which is an agricultural land. Respondent No.1 filed a suit on the basis of sale-deed dated 12th February, 1981. According to Respondent No.1 he had purchased 1/3rd share in the suit property from original owner Shivram Sawant.
2 The Appellants/ Defendants filed their Written Statement contending that there was no partition and the shares were not demarcated.
Pg 1 of 3
11.sa.520.2016.doc
3 Learned Civil Judge, Sawantwadi, by the Judgment and Order dated 2nd March 2012, partly decreed the suit. The learned Civil Judge, refused the prayer of Respondent No.1 for injunction, however the declaration that Respondent No.1 had 1/3rd share in the suit property was granted, the preliminary decree for execution was sent to the District Collector for partition of 1/3rd share. Regular Civil Appeal No. 47 of 2012, filed by the Appellants in the District Court, Sindhudurg was dismissed by the learned District Judge, Sindhudurg by its Judgment and Order dated 11th December, 2015.
4 Learned Counsel for the Appellants reiterated the contentions raised in the Courts below i.e. that unless there being partition and demarcation of shares, the sale-deed could not have been executed in favour of Respondent No.1.
5 That there is a sale-deed in favour of Respondent No.1 by Shivram Sawant, is not disputed and cannot be disputed. It is also an admitted position that Shivram Sawant had 1/3rd share in the suit property. Both the Courts had negatived the case of Respondent No.1 regarding injunction, however has only recognized the right of the respondent purchaser to enforce partition. The sale-deed as on date is not set aside and all that both the Courts have done is uphold the right of the Respondent No.1. Both the Courts have, therefore, only declared that Respondent No.1 has stepped into the shoes of Shivram Sawant and as thereafter directed that division be made by metes and bounds. There is no error in the view taken by both the Courts. No
11.sa.520.2016.doc
question of law arises. The Second Appeal is accordingly dismissed. In view of dismissal of Appeal, nothing survives in the Civil Application and the same is disposed of accordingly.
Pg 3 of 3
2 issues framed by the court
Whether the lower courts were correct in declaring the purchaser's right to partition rather than granting an injunction or setting aside the sale-deed.
Whether a question of law arises on the admitted position that the original owner held a one-third share.
Nagesh Vishnu Sawant & Ors.
Babaji Soma Sawant
N.M. Jamdar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
