1 sa305.90 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 305 OF 1990 Madhukar Narsu Sutar ...Appellant (original plaintiff) VERSUS Jairam Santram Sutar ...Respondent (original defendant) ..... Shri S.S.Bora, advocate for the appellant Smt. M.A.Kulkarni, advocate for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATE OF RESERVING THE JUDGMENT : 07.1.2011 DATE OF PRONOUNCING THE JUDGMENT : 13.1.2011 J U D G M E N T : - 1 Unsuccessful plaintiff/appellant has filed the present appeal, being aggrieved by the judgment and decree dated 9 th 2 sa305.90 February, 1983, passed by the learned Civil Judge, Junior Division, Paranda in Regular Civil Suit No. 137 of 1981 and also being aggrieved by the dismissal of Regular Civil Appeal No. 52 of 1983, which was preferred by the appellant/plaintiff challenging the afore said judgment and decree rendered by the Trial Court, by the learned Additional District Judge, Osmanabad on 29 th January, 1990, and prayed to set aside the concurrent findings of the Trial Court as well as the First Appellate Court. 2 Brief facts and events leading to the present appeal are as follows :- The parties are referred hereafter by their original status as ‘the plaintiff’ and ‘the defendant’. The appellant/plaintiff had filed Regular Civil Suit No. 137 of 1981 before the Civil Judge, Junior Division, Paranda for declaration of ownership and perpetual injunction in respect of Gat No. 29, admeasuring 8 Hectares 10 Ares of village Savadarwadi, Taluka Paranda. It is the pleading of the plaintiff Madhukar that the said suit land i.e. Gat No. 29 is the ancestral property of his father, 3 sa305.90 namely Narsi @ Narsu. Narsu had two more brothers, namely Santram and Shivdas, whose father’s name was Sadhu. Defendant, namely Jairam is the son of uncle of the plaintiff, namely Santram. It is not in dispute that on the date of suit, except plaintiff and defendant, no one was alive in the families of the plaintiff and the defendant. It is also the case of the plaintiff that all the three brothers, namely Santram (defendant’s father), Narsu (plaintiff’s father) and Shivdas had each 1/3 rd share in the said ancestral property. According to the plaintiff, his father was in possession of the suit land as owner and after his death he became owner of the suit land in view of the record vide Exh. 41 pertaining to the suit land. 3 It is also the case of the plaintiff that the father of the defendant, during his life time, had orally mortgaged his 1/3 rd share in the suit land to one Haribhau Shankarrao Patil for the consideration of Rs. 2,000/-, which was redeemed by the father of the plaintiff on 31.1.1957 by paying the mortgage money of Rs. 2,000/- and thereby said Haribhau Patil restored the possession in favour of the plaintiff. It is further the case of the plaintiff that the uncle of the plaintiff, namely Shivdas gave his 1/3 rd share to Narsu 4 sa305.90 Sutar i.e. the father of the plaintiff in the suit land under the consent decree filed at Exh. 41 in Regular Civil Suit No. 12/1/1957 of Civil Court on 4.5.1957. It is also the case of the plaintiff that the name of his father was recorded in the revenue record as owner and possessor of the suit land and after his death, the name of the plaintiff came to be recorded in the revenue record as owner and possessor of the suit land. 4 According to the plaintiff, the defendant has no right or concern with the suit land. In the alternative, it is the contention of the plaintiff that he acquired the title of the suit land by adverse possession and his name is recorded at the time of consolidation as owner in possession of the suit land and on the basis of exclusive possession over the same, and the defendant without having any right or concern has caused obstruction in his possession on 30.1.1981. Hence, the plaintiff filed Regular Civil Suit No. 137 of 1981 and prayed for declaration of ownership and perpetual injunction. 5 The defendant appeared in the said suit and filed written statement Exh. 20 and denied the suit claim of the plaintiff in to to, as 5 sa305.90 well as he denied the exclusive title of the plaintiff over the suit land. He also denied any alleged oral mortgage by his father to Haribhau Patil and the father of plaintiff redeeming his 1/3 rd portion of the suit land by payment of Rs.2,000/- to Haribhau Patil. He further denied the plaintiff perfecting his title on the basis of adverse possession. The sum and substance of his defence is that the suit land is the ancestral property and partition is not yet effected between him and the plaintiff and the father of the plaintiff being eldest in the family, his name was recorded in the revenue record and after his death the name of the plaintiff came to be recorded as owner and possessor of the suit land. His father expired as a Member of the Hindu Joint Family. He being sharer to the extent of 1/3 rd share in the suit land, he cannot be restrained by decree of declaration and perpetual injunction, and accordingly, the defendant prayed for dismissal of the suit with costs. 6 After considering the evidence adduced by the parties, the learned Trial Judge dismissed the suit of the plaintiff and the parties were directed to bear their own costs by the judgment and decree dated 9.2.1983. Being aggrieved and dissatisfied by the said judgment and decree of dismissal of the suit, the plaintiff preferred 6 sa305.90 Regular Civil Appeal No. 52 of 1983 before the Additional District Judge, Osmanabad assailing dismissal of his suit. However, said Regular Civil Appeal No. 53 of 1983 also came to be dismissed by the learned Additional District Judge, Osmanabad by the judgment and order dated 29.1.1990. 7 Feeling aggrieved and dissatisfied by the said dismissal of the appeal, the plaintiff/appellant has filed the present Second Appeal in this court, allegedly raising substantial questions of law. While admitting the present appeal, it was observed that Ground Nos. 3 and 8-A involve the substantial questions of law and the said grounds read as under :- “ (3) That the substantial question of law in the present case is as to whether both the Courts below have correctly understood the effect of consent decree in Regular Civil Suit No. 12/1/1957 between the father of the Appellant-Plaintiff and his uncle Shivdas. (8-A) That the Courts below ought to have considered that the Plaintiff is entitled for at least 1/3 rd share which is not disputed by Defendant and ought to have decreed suit to that extent when suit is for entire property. Court below erred in not granting decree to that extent raising substantial question of law. “ 7 sa305.90 8 Admittedly, it is not in dispute that the suit land Gat No. 29, admeasuring 8 Hectares 10 Ares of village Savdarwadi was owned and possessed by one Sadhu Sutar i.e. grand father of the plaintiff. Moreover, said Sadhu Sutar left behind three sons, namely Narsu (plaintiff’s father), Santram (defendant’s father) and Shivdas. Plaintiff Madhukar is the son of Narsu and defendant Jairam is the son of Santram. Admittedly, the parties belong to Hindu Family, and therefore, there is presumption in respect of jointness, and as such burden is on the party who claims that Hindu Family is partitioned. 9 However, pertinently, in the instant case, considering the contents of the plaint Exh.1, there is no specific pleading as to in which year the father of the plaintiff had partitioned from his two other brothers. Even there is no specific pleading as to what properties were the subject of partition amongst the three brothers and which portion was allotted to whom. Accordingly, the plaint is silent regarding the year of partition and allotment of share in the partition. Moreover, the plaintiff has not produced any documentary evidence to show that after partition the names of three sharers were recorded separately in the revenue record. 8 sa305.90 10 Apart from that, even when the defendant has taken a specific stand in the written statement that the suit property is still joint and partition was not at all effected, still the plaintiff failed to carry out any amendment in the plaint and no specific pleading regarding partition was raised. Besides, in the absence of specific pleading of partition, the plaintiff could not have been permitted to lead evidence on the point of partition. Moreover, even though the plaintiff adduced the evidence on the point of partition, it was required to be ignored for want of pleading. Even no separate mutation entries have been effected in the revenue record in respect of the alleged partition. 11 Moreover, it is significant to note that the plaintiff has not filed the copy of the plaint of Regular Civil Suit No. 12/1/1957 to show that in the earlier suit he has taken the stand about the partition amongst the three brothers. The copy of the decree in Regular Civil Suit No. 12/1/1957 does not show that there was such pleading of partition, and therefore, same cannot be of any aid and assistance to the case of the plaintiff to prove the factum of partition. Moreover, the original partition memo Exh.57 also cannot be taken into 9 sa305.90 consideration in the absence of pleading to that effect. Besides, the said document Exh. 57 has not been registered and same was not filed along with the plaint and the First Appellate Court has rightly observed that Exh. 57 appears to be doubtful document. 12 As regards the portion of Shivdas, the First Appellate Court observed that it is not clear from Exh. 49 whether Shivdas has sold his 1/3 rd share to the father of plaintiff or he has gifted the above said property to the father of plaintiff in love and affection, but the only fact that Shivdas has filed consent written statement to the suit of declaration and injunction filed by the plaintiff’s father will not be sufficient to prove the fact of partition. However, it is not clear from Exh. 49 as to what was the pleading in Regular Civil Suit No. 12/1/1957. Hence, the First Appellate Court has rightly observed that the evidence adduced by the plaintiff in respect of partition is weak and doubtful and the Trial Court as well as the First Appellate Court have rightly appreciated the evidence on the point of partition and no interference therein is warranted in the Second Appeal. 13 As regards the contention of the plaintiff that the father of defendant had orally mortgaged his 1/3 rd share to one Haribhau 10 sa305.90 Shankarrao Patil for Rs.2,000/- and the said share of father of the defendant was redeemed by the plaintiff’s father by making payment of Rs.2,000/- to said Haribhau Shankarrao Patil, it is to be noted that admittedly 1/3 rd share of the father of the defendant in respect of the landed property is worth more than Rs.100/-, and hence, the alleged oral mortgage in that respect is not admissible as per the provisions of law, as well as the alleged oral mortgage is not recognized by the provisions of law of Transfer of Property Act. Besides that, as canvassed by learned counsel for the defendant, right to redeem the mortgage lies with the person who mortgages the property, and therefore, the alleged right of redemption of mortgage was with the defendant’s father and not with the plaintiff’s father, and hence, there is no substance in the contention raised by the plaintiff in that respect. 14 Apart from that, as mentioned herein above, presumption of jointness is in favour of the defendant, and therefore, it is abundantly clear that the defendant was jointly cultivating his 1/3 rd share along with the plaintiff, and the plaintiff was not absolute owner of the suit land on the date of suit, and hence, relief of declaration of ownership and perpetual injunction was rightly refused by the Trial 11 sa305.90 Court, which was rightly confirmed by the First Appellate Court. 15 Having the comprehensive view of the matter, the substantial questions of law raised in Ground Nos. 3 and 8-A are answered in above terms and the present appeal bears no substance, and hence, deserves to be dismissed. 16 In the result, present appeal, which is sans merits, stands dismissed. No costs. (SHRIHARI P. DAVARE, J.) dbm/sa305.90