2302sa451.09.odt 1/7 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO. 451 OF 2009 Ganesh Rangrao Pachpor :: APPELLANT -: Versus :- Rangrao Kisanrao Pachpor & 8 others :: RESPONDENTS ------------------------------------------------------------------------------------------------------------------ Mr. P. S. Patil, Advocate for the appellant. Mrs. S. W. Deshpande, Advocate for the respondents. ---------------------------------------------------------------------------------------------------------------------------- C ORAM : F. M. REIS, J. DATED : 23rd February, 2010. ORAL ORDER : 1. Heard the learned Counsel for the appellant and the respondents. 2. This is a second appeal filed by the appellant No.1 challenging the judgment dated 30th July, 2009 passed by the learned Ad hoc District Judge, Amravati in regular civil appeal No. 52 of 2009 whereby the appeal preferred by the appellant challenging the judgment and decree passed in regular civil suit No. 54 of 2008 dated 19/01/2009 came to be dismissed. 3. The respondent No. 1 filed a suit for declaration and recovery of possession of the suit property which is described as land bearing survey No. 12 ad measuring 12.12 acres having mango trees in it situated at mouza Asara, Tq. Bhatkuli, Distt. Amravati. The appellant is the son of respondents No. 1 and respondents No. 2 to 9 are the daughters of the respondent No. 1. The said suit property is in possession of the appellant herein. The mutation entries in respect of the suit property stand in the name of respondents No. 2302sa451.09.odt 2/7 2 to 9. The suit has been filed by the respondent No. 1 on the ground that on 08/12/1969 a partition of the ancestral property was effected between respondent No. 1 and his two sons. The said partition deed was duly registered and the respondent No. 1 was allotted the suit property bearing survey No. 12 ad measuring 12.12 acres while the appellant was allotted the property survey No. 13 ad measuring 11.00 acres and the property survey No. 15/2 ad measuring 6.17 acres and possession thereof was delivered to the appellant on attaining majority. It is further the contention of the respondent No. 1 that on account of his old age, the property was being given for cultivation to one Sadashiv Thorat and accordingly the lease deed was executed in his favour and the possession was handed over on 31/3/2004. It is further his contention that during his old age, his daughter namely Sangita is looking after him. A will was executed by the respondent No. 1 in favour of his daughter but thereafter on account of advise given to the respondent No.1, a partition deed was executed which was unregistered. In view of the said unregistered partition deed, the said subsequent mutation entries came to be effected in favour of respondents No. 2 to 9 in respect of the suit property. The appellant forcibly obtained the possession of the suit land from the said Sadashiv Thorat. It is further his case that the respondent No. 1 continued to be the owner of the suit land as the said partition deed has not been registered and that the appellant is not entitled to forcibly dispossess the respondent No. 1 from the suit property. Consequently, a suit was filed for declaration on the basis of the partition deed dated 8/12/1969. 2302sa451.09.odt 3/7 4. The appellant disputed the claim of the respondent No.1 and has denied that the respondent No. 1 is the owner of the suit field and further claimed that actual possession was not handed over to the appellant as per the deed of partition and that the partition deed was nominal and void. It was further his contention that the suit field is an ancestral property of the appellant and Santosh, the brother of the appellant and consequently prayed that the suit deserves to be dismissed. The remaining respondents No. 2 to 9 filed the written statement admitting the claim of the appellant. 5. The learned trial Judge, after framing the issues and recording the evidence, decreed the suit filed by the respondent No. 1 and directed that the appellant should deliver the possession of the suit property to the respondent No. 1 as well as declared that the respondent No.1 is the owner of the suit property. An enquiry was ordered to be held with regard to the mesne profit in accordance with the provisions of Order XX Rule 12 of the Code of Civil Procedure. While deciding the said suit, the learned trial Judge, on the basis of the material on record, came to the conclusion that the respondent No. 1 is the owner of the suit property and that it is his separate property. While deciding the said aspect, the learned trial Judge has minutely examined the evidence of the witnesses examined by the parties and on appreciating the evidence thereof, came to the conclusion that the suit property is separate property of the respondent No. 1, and therefore, he is the owner of the said property. The learned trial Judge discarded the subsequent deed of partition as the same was not registered and as such no rights could have been accrued to the parties. The learned 2302sa451.09.odt 4/7 Judge, in view of the finding that the respondent No.1 had established that he was the owner of the suit property, came to the conclusion that the appellant had no right to possess the suit property and as such directed that the possession of the suit property is to be delivered to the respondent No.1. 6. The appellant preferred an appeal before the learned District Judge being regular civil appeal No. 52 of 2009 and by judgment and order dated 30/7/2009, the said appeal came to be dismissed. Whilst disposing the said appeal, the learned District Judge came to the conclusion that the respondent No. 1 was the owner of the suit property, the said findings were arrived at on the basis of the partition deed dated 08/12/1969 which came to be executed between the appellant and the respondent No.1. The learned Judge has also considered that the appellant himself has admitted that as per the said partition deed which was at Exh. 58, the property survey Nos. 13 and 15/2 ad-measuring 11.00 acres and 6.17 acres respectively were allotted to the appellant. The learned Judge, on the basis of the evidence on record, came to the conclusion that the said partition deed was duly acted upon and was given effect to. The learned Judge has also considered that the appellant has never challenged the said partition deed and as such came to the conclusion that the suit property belonged to the respondent No.1. The learned Judge whilst considering the aspect with regard to the subsequent partition in favour of respondents No. 2 to 9, came to the conclusion that the suit property being a separate property of the respondent No.1, it cannot be subsequently partitioned. Considering that the said partition document is not registered document, the alienation of the 2302sa451.09.odt 5/7 immovable property is not legal. The learned Judge held that the suit property was given by the respondent No. 1 to Sadashiv Thorat for cultivation on 31/3/2004. The learned Judge further held that mere mutation entries in the revenue record does not give right of possession to the respondents No. 2 to 9 in respect of the suit property as admittedly the document was unregistered and consequently held that the said deed of partition had no legal value. Consequently, the appeal preferred by the appellant came to be dismissed. 7. The learned Counsel for the appellant submitted that the findings of the Courts below cannot be sustained as according to him, the deed of partition executed between the appellant and the respondent No. 1 was not given effect to. He further submitted that considering that a fresh deed of partition was executed in favour of the respondents No. 2 to 9, who are daughters of the respondent No.1, the question of granting reliefs in favour of the respondent No. 1 does not arise at all. The learned Counsel further submitted that there are perverse findings of fact arrived at by the Courts below which are required to be considered by this Court in the present second appeal. 8. Having heard the learned Counsel and on perusal of the record, I find that there is no substantial question of law which arises in the present appeal which can be considered by this Court under the provisions of Section 100 of the Code of Civil Procedure. The Courts below, on the basis of deed of partition executed in the year 1969 between the appellant and the respondent No.1, came to the conclusion that the suit property came to 2302sa451.09.odt 6/7 be allotted to the respondent No.1. The Courts below have also considered the fact that the partition was acted upon as the appellant himself had admitted that there are specific property which have been allotted to the appellant under the said deed of partition. This admission itself discloses that the deed of partition was given effect to. As such, the contention of the learned Counsel for the appellant that the deed of partition was not given effect to has to be rejected. The said findings of the Courts below which are on the basis of material on record cannot be re appreciated in the present second appeal. 9. With regard to the next contention of the learned Counsel, it is an admitted fact that the subsequent partition was not registered under the provisions of Section 17 of the Indian Registration Act. As such, no right or interest thereof can be created in favour of any person on the basis of such unregistered document. The learned Counsel for the appellant fairly conceded that the unregistered deed of partition has no legal effect as the respondent No.1 was entitled to execute such deed of partition. Apart from that, the respondents No. 2 to 9, who are otherwise beneficiaries, on the basis of such unregistered partition deed, have admitted the claim of the respondent No. 1 in their written statement. As such, I find that there is no infirmity committed by the Courts below whilst decreeing the suit filed by the respondent No.1. 10. Both the Court below, on the basis of the material on record, have arrived at concurrent findings of fact with regard to the ownership of the respondent No.1 and that the appellant is not entitled to continue in 2302sa451.09.odt 7/7 possession of the suit property. Once the appellant has failed to establish that he is entitled to continue in possession of the suit property, naturally such possession is unlawful and as such the respondent No. 1 is entitled for restoration of the possession of the suit property. There is no perversity in the findings arrived at by the Courts below with regard to the ownership as well as the right to possess the suit property by the respondent. The learned Counsel for the appellant was not able to point out any perversity in the said findings. 11. In view of the above, no substantial question of law arises in the present second appeal and as such the same stands summarily dismissed. JUDGE wwl