Dismissed

Raghunath Sitaram Suryawanshi v. Subhash Sitaram Suryawanshi and Ors.

Bombay HC28 Oct 2021SA/406/2021

Case brief

AI extract

What is this about?

In a second appeal challenging the dismissal of civil suits regarding property declaration and injunction, the court found no substantial question of law. It held the appellant failed to discharge his burden of proof given his knowledge of relevant mutation entries. The appeal was dismissed at the threshold.

What did the court decide?

The Second Appeal and the Civil Application for stay stand dismissed.

Raghunath Sitaram Suryawanshi Vs Subhash Sitaram Suryawanshi and Ors. — Partition | Bombay HC (2021)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.406 OF 2021 with

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CIVIL APPLICATION NO.10732 of 2021

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Shri Raghunath s/o Sitaram Suryawanshi

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= APPELLANT (Orig.Plaintiff)

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VERSUS

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Shri Subhash s/o Sitaram Suryawanshi & Ors. = RESPONDENTS (Orig.Defendants)

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Mr. Anirudha A Nimbalkar, Advocate for Appellant.

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 -----

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CORAM : SMT.VIBHA KANKANWADI,J. DATE : 28th October, 2021.

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PER COURT :-

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1.Present appeal has been filed by the

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original plaintiff, challenging concurrent findings
and decisions. He filed Regular Civil Suit

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No.135/2005 for declaration of ownership and

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permanent injunction before the 2nd Joint Civil
Judge, JD., Kaij, District Beed. The said suit was
dismissed on 14.12.2013. An appeal, bearing

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Regular Civil Appeal No.7/2014, preferred by the
plaintiff, has been dismissed by learned District
Judge-1, Ambejogai, on 5.9.2020. Hence, this
Second Appeal.

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(2)

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2.Heard learned Advocate appearing for the

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appellant.

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3.In view of decision in the case ofAshok
Rangnath Magar Vs. Shrikant Govindrao Sangvikar –
(2015) 16 SCC 763, it is not necessary to hear the
respondents at the time of admission of the Second
Appeal, if the appellant satisfies that there are
substantial questions of law involved in the case
and, therefore, it is now required to be seen as to
whether such substantial questions of law are
involved in this matter.

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4.It has been vehemently submitted on

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behalf of the appellant-plaintiff that both the
Courts below have failed to appreciate the material

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facts, evidence that was led by the parties. The
material admissions given by the defendants in
their written statements have not been considered.

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Both the Courts below have taken up the view that
family properties are partitioned twice. They
failed to consider that when the partition had

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already taken place in the year 1987, what was the
necessity ofsecond partition in the year 1996.

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(3)

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Mutation entries have been relied, however, that
piece of revenue record appears to be confusing and
it cannot be taken as true when the Civil Court is
deciding the rights of the parties. The first
partition-deed, which reflects in Mutation Entry
No.581, would reveal that the plaintiff and his
brother late Bharat, were given 1/4th share, i.e.
64 Ares from the area, admeasuring 2 hectares and
58 Ares in Survey No.53. The said mutation entry
does not mention any land in the name of defendant
No.1 and 5 of the said land. Conversely, it will
have to be presumed that no land from said survey
number was allotted to deft.Nos.1 and 5 in the year
1987. The remaining land, admeasuring 1 hectare
and 30 Ares stood in the name of father of the
plaintiff and the defendants and, therefore, the
plaintiff can definitely claim the said land. One
more factor, which would support the above ground
is that the subsequent partition was allegedly
effected in the year 1996 after death of their
father and late Bharat. Certain land was allotted
to defendant No.1 and another portion was allotted

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to late Bharat. So, the portion of land
admeasuring 1 hectare and 39 Ares in Survey No.53,

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(4)

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which stood in the name of father of the plaintiff;
deft.Nos.1, 5 and late Bharat, was distributed in
the second partition. In the way the plaintiff is
contending. Still when question was raised in
respect of title of the plaintiff, he filed the
suit. Substantial questions of law are arising in
this case, in view of the fact that whether the
Civil Courts could have so much relied on the
revenue record when they were supposed to decide
title on the basis of contentions raised and
evidence that is led.

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5.It is to be noted from the pleadings that
the plaintiff was claiming to be owner of 33
gunthas land from Survey No.53 and to be owner of
the cattle-shed, which was near the road going on
towards Janegaon. He claimed that he received the

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title in the partition. In his plaint, he has not
given the date of partition between himself and the
defendants. This contention of the plaintiff was
denied by defendant No.1, 3 and 4. The plaintiff
relied on Mutation Entries and 8-A Extract.
However, if we consider Exhibit-66 – Mutation Entry
No.581, then as regards Survey No.53 is concerned,

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(5)

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part of its is shown to be given to Bharat;
defendant No.1 and the present plaintiff. But, then
there is also another Mutation Entry No.878, which
appears to have been taken on 18.1.1996 under the
nomenclature “Watani” (Partition). It shows that
Survey No.53 has been given to Bharat. That
portion, which was earlier shown in the name of the
plaintiff is then missing. Important point to be
noted is that the plaintiff is not saying that he
is not relying on the mutation entries. He is not
coming with a case also that he had no knowledge
about the mutation entries and still he is owner of
the property. If he had the knowledge about both
the mutation entries, especially the second one, he
has not put forward that he had ever challenged
that mutation entry. In fact, that would have been
the best possible time to challenge that entry
without waiting for any further action. He is
relying for several extent on the second mutation
entry, i.e. 18.1.1996. Therefore, he cannot just
take benefit of that mutation entry No. 878. He
cannot then deviate himself or challenge the said
partition. If we consider cross-examination of the
plaintiff, then it can be seen that he admitted the

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(6)

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fact that since life time of their father, all the
three brothers had started residing separately.
Mutation entries were also taken in respect of the
respective properties in the name of the brothers.
His father had left 6 acres and 13 gunthas land in
Survey No.53. He also admitted the mistake of the
Revenue Officer, when earlier, the area admeasuring
8 Acres and 13 gunthas, stated in his examination-
in-chief. He admits that no portion of land of his
ownership remained in 33 Ares land and he came to
know about it in the year 1995. Still whey he
waited till 2005, is a question for institution of
the suit. Some portion of the land has been sold
by him from Survey no. 53 and after death of their
father, partition document has been prepared and he
had knowledge about the said mutation entry and the
application given. If still he has kept quite then
the Court cannot help to such negligent person.

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6.Here the present appellant-plaintiff had
come before the Court and, therefore, burden was on
the plaintiff to prove everything. Onus had not
shifted on the shoulders of the defendants to prove
or disprove anything. In order to prove the

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(7)

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partition, that too in absence of any document,
circumstantial facts are the only factors those are
required to be considered to come to the
conclusion. Both the Courts below on the

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preponderance of probabilities and evidence
adduced, have come have arrived at right conclusion
and, therefore, no substantial question of law is
arising in this case, requiring admission of the
Second Appeal. It deserves to be dismissed at the

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threshold. Accordingly, it is dismissed.
Consequently, the Civil Application for stay stands
rejected.

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(SMT. VIBHA KANKANWADI) JUDGE

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BDV

Raghunath Sitaram Suryawanshi v. Subhash Sitaram Suryawanshi and Ors.

Case brief

What is this about?

What did the court decide?

Raghunath Sitaram Suryawanshi v. Subhash Sitaram Suryawanshi and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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