1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.65 OF 1990 1) Umaji Vithoba Kalyandar Age: 34 Yrs., occu:Agril. R/o Pimpalgaon Mahadeo Tq. And Dist. Nanded. 2) Madhavrao Rukhmaji Pawde Age: 35 Yrs., occu. Agril. r/o Wadi-Bk., Tq. And District Nanded. ..APPELLANTS VERSUS 1) Kausalyabai w/o Shamrao Deshmukh Age: 47 Yrs., occu. Household, R/o Chikala, Tq. And District Nanded. 2) Indubai w/o Namdeorao Deshmukh Age: 45 Yrs., occu. Household, R/o Sugaon, Tq. And Dist. Nanded. 3) Shalinibai w/o Uttamrao Deshmukh Age: 35 Yrs., occu:Household, R/o Hivra, Tq. Pusad, District Yavatmal. 4) Sundrabai w/o Bhimrao Tayade Age: 37 Yrs., occu. Household, R/o Amboda Satwi, Tq. Pusad District Yavatmal. 5) Shantabai w/o Bhagwanrao Deshmukh Age: 32 Yrs., occu. Household, r/o Dongarkada, Tq. Kalamnuri, District Parbhani. 2 6) Digambar Rangrao Age: 35 Yrs., occu. Agril. r/o Dongaon, Tq. Pusad, District Yavatmal. ..RESPONDENTS ***** Mr.DR Bhadekar, Advocate for Appellants; Mr.SR Palnitkar, Advocate for Respondent nos.1,2 & 4. ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th July, 2009. ORAL JUDGMENT : 1) Heard Counsel. 2) The dissatisfied defendant nos. 7 and 6, against concurrent findings recorded in RCS No. 20/1979 and RCA No. 234/1982 by the 3rd Additional District Judge, Nanded, are in second appeal. 3) The appeal was admitted on 6.2.1990 on ground nos.II to VII to be raising substantial questions of law. “ GROUNDS (II) That, both the courts below have failed to draw legal presumption from the evidence on record; (III) That, it is wrong to confirm the Decree when entire ancestral house and Surve No.87/3 are not brought into hotchpotch in claiming partition; (IV) That, it is wrong to exclude house and S.No.87/3 from suit property. Suit should have held untenable; (V) That, findings of both the 3 courts below are vitiated when purchaser Govindrao admits his possession of Survey No.87/3 on the basis of Agreement of sale in as much as no sale-deed is executed in respect of Survey No.87/C and Title is not passed, under registered sale-deed. And that Govindrao has not become owner of S.No.in question. (VI) That, finding of both the courts below are vitiated as Govindrao purchaser of S.No.87/C and Devidasrao and others purchaser of 5 acres of S.No.90/A on 14.5.1980 are not added as necessary parties. (VII)That, both the courts below have misunderstood and misconstrued the cumulative, legal effect of transfer of S.No.110 full of portion of S.No.90A in favour of appellant and in favour of Devidasrao respectively in passing the decree for partition.” 4) Mohanrao was the owner and in possession of agricultural fields. He had seven daughters and a widow – Deobai. One of the daughter Sumitrabai pre-deceased Mohanrao. Son of Sumitrabai is defendant no.8 in the proceedings, who did not participate. 5) The plaintiff no.1 – Kausalyabai and plaintiff no.2 – Indubai are admittedly daughters of Mohanrao. Defendant no.1 – Deubai, defendant no.3 – Sundrabai; defendant no.5 – Kamlabai sold 4 acres of land from Survey No. 110/A to defendant no. 7 – Umaji by indenture by 2nd January, 1970 (Exhibit-68). Defendant no.1, 4 defendant no.4, defendant no.3 and defendant no.8 sold 8 acres 22 gunthas from the land Survey No. 90/A in favour of defendant no. 5 – Kamlabai. Madhavrao, husband of Kamlabai, sold said 8 acres and 22 gunthas with consent of Kamlabai, vide Sale-deeds, Exhibits 69, 72 dated 12.1.1970 and 12.5.1977. 6) It is in this situation, Kausalyabai and Indubai, sought a decree of partition and separate possession of their 1/6th share from each of the land referred above. Indeed, their share are rightly assessed to be 1/8th. 7) The purchaser Umaji or Madhavrao were consciously aware about the existing rights of plaintiff – Kausalyabai and Indubai when the respective indentures of transfer of agricultural fields were effected. Though lame excuse was put forward about acquaintance of plaintiffs to the transaction so far as their shares are concerned, however, it remained to be proved. The fact remains, in spite of consciously aware of share of Kaushalyabai and Indubai in the suit fields, there was a conveyance excluding their rights, which was impermissible. 8) During the course of submissions, it was canvassed that in a suit of such nature, plaintiffs should have included all the properties as they have excluded one land being Survey No.87/3, which Mohanrao during his life time, has agreed to sell to one Govindrao, who 5 was in possession of the property. It was the choice of the plaintiffs to abandon their claim and stake their rights in relation to specific piece of lands, hence there should not be discomfort to plaintiffs. 9) Much was argued and discussed about possession of Govindrao on land Survey No.87/3, whether it could be in terms of a shield, as envisaged under Section 53-A of the Transfer of Property Act. However, this aspect need not be further discrammed. It was the sweet choice of the plaintiffs to exclude the property. The purchaser – Govindrao was apparently in possession of the property from Mohanrao since more than 12 years prior to the suit. 10) It was contended by the appellant that defendant no.7 purchased the land Survey No.90/A from defendant no. 6 – Madhavrao treating him to be lawful owner and possessor for a consideration of Rs.25,000/- by sale-deed,Exh.72 dated 12.5.1977. This transaction was consented by defendant no.5. This transaction either Madhavrao or defendant no.5 by itself will not obliterate the rights which persisted and flowed in the plaintiffs being daughters of Mohanrao. Consequently, the sale-deed by deft.no.6 or deft.no.5 in favour of the appellant will not be defusing the claims of the original plaintiff. 11) The appellant in the cross-examination did not contend having obtained consent of both 6 the plaintiffs while executing the registered sale deed. However, he admits the fact that Deobai and her daughter were successors of the suit property, still he did not obtain signatures of both the plaintiffs or their other sisters on sale deed, Exh.68. The sale deed in respect of land survey No.110, as stated earlier, by exclusion of the plaintiff, could not have been legally done. 12) The next contention raised, there was no prayer challenging the sale-deeds of 1970 or sale deed of 1977. There was no legal infirmity in the plaintiffs’ seeking simplicitor partition and separate possession, as the sale of the agricultural fields belonging to their father, the ancestral property, could not be effected in their absence and such sale naturally would not be binding on the rights already existed in plaintiff no.1 – Kausalyabai and plaintiff no.2 – Indubai. 13) It was canvassed that the suit was barred by limitation as the partition was sought after twenty years as Mohanrao expired in the year 1959 or that the sale-deeds are of 1970. The contentions are ill-formed as the remedies seeking partition are based on accrual of cause of action. There was denial of parting of shares by the defendant, which caused such accrual and the sale transaction of 1970 or death of Mohanrao in 1959 by itself will not be a decisive factor 7 to create impediment of law of limitation. 14) Taking survey of these facts, it is difficult to digest that both the Courts have failed to draw legal presumption from evidence on record or that there was infirmity in confirming the decree when house and Survey No.87/3 are not brought into common hotchpotch, for which no partition was sought. The findings of both the courts cannot be said to be vitiated, since Govindrao accepted his possession on Survey No. 87/3, based on agreement of sale, and there is no title flowing in favour of Govindrao. It is wrong to contend that both the courts have misunderstood and misconstrued the cumulative legal effect of transfer of Survey No. 110 or portion of 90/A in favour of the appellant or in favour of Devidasrao respectively. The substantial questions of law formulated referred herein above are answered in the negative. Second Appeal with respective Civil Applications dismissed. No costs. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/sa65.90 Authentic copy (BD VADNERE,PS)