sa690.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.690 OF 2011 With CA/15008/2011 In SA/690/2011 KHANDAPPA @ KHANDU KASHINATH PAWALE AND ANR. ... APPELLANTS. VERSUS SOMNATH MARUTI PAWALE AND ORS ... RESPONDENTS. ... Advocate for appellants : Mr. A M Hajare Advocate for Respondent NO.1. :Mr. V.R. Mundada. ... CORAM : S.S. SHINDE, J. Dated: December 13, 2011 PER COURT: 1. This second appeal takes exception to the judgment and order dated 3rd August, 2011 passed by the Principal District Judge, Osmanabad in RCA No.251 of 2007 thereby confirming the judgment and order dated 26.9.2007 passed by the C.J.J.D., Tuljapur in RCS No.123/1998. 2. The learned Counsel for the appellants, relying upon sa690.11 2 Exh.75, would submit that the said document was placed on record and as many as three witnesses were examined. All the three witnesses have stated in their statement that Maruti did sign that document. It is further argued that the appellants are in possession of the suit property since last 30 years. As a family arrangement, since Maruti was in financial difficulty, `1,31,000/- consideration was paid. By way of family arrangement, Exh.75 was titled as partition deed. The learned Counsel for the appellants, relying upon the reported judgment of this Court in case of Roshan Singh and others v. Zile Singh and others [AIR 1988 SC 881], would contend that since Exh.75 was partition deed and since it was by way of family arrangement, registration of the same was not necessary. He would further submit that both the Courts below have not properly appreciated the evidence brought on record. It is further argued that the appellants who are in possession of the suit property since last 30 years, have paid the amount of `1,31,000/-, they have no intention to cheat the respondents and by way of family arrangement, Exh.75 came into existence. Therefore, this Court may sa690.11 3 consider this second appeal. He invited my attention to the grounds taken in the second appeal and particularly, ground Nos.VIII & IX and submitted that the second appeal deserves consideration. 3. On the other hand, the learned Counsel for respondent No.1 invited my attention to the concluding para from the District Court's judgment and submitted that Exh.75 was neither registered nor proved by the appellants and, therefore, the said document has been rightly disbelieved by the Courts below. He also invited my attention to some undisputed facts, which are stated by the trial Court in para 19 of its judgment. He further submitted that the plaintiffs, in their cross-examination, have refused to accept any signature by Maruti on Exh. 75. According to the learned Counsel for respondent no.1 i.e. original plaintiff No.1, there was no any such family arrangement as contended by the appellants. The appellants have taken different stand at different times. Earlier, the case by the appellants was that there was lease deed in the year, 1988. However, they could not sa690.11 4 produce any evidence to that effect. Therefore, said assertion of the appellants was negated by both the Courts below. He also invited my attention to other findings recorded by the Courts below and submitted that second appeal does not raise any substantial question of law for consideration and therefore, the same may be rejected. 4. I have given due consideration to the rival submissions and carefully perused the grounds taken in the second appeal. It is not in dispute that there was family partition in the year, 1986. In the said partition, the land which was given to the share of Maruti was supposed to be from Survey No.360. However, by mistake, Survey No.362 was written in the partition deed. This fact has been admitted by the appellants in their cross- examination. In short, there is no dispute that the survey No.360 was to be given to Maruti in partition. However, by mistake survey no.362 was written. Therefore, both the Courts below concluded that so far survey no.360 is concerned, the same was given in partition to Maruti in sa690.11 5 1986. 5. From perusal of the impugned judgment, it appears that the appellants have approached the Court with two fold story. Even, the appellants asserted that there was some lease deed in 1988 by which the said property was given to the appellants. However, they did not bring any evidence on record and therefore, court has negated the said contention. The main reliance is placed by the Counsel for the appellants on Exh.75 i.e. partition deed. According to the learned Counsel for the appellants, the said partition deed is not required to be registered since the said document is by way of family arrangement. The trial Court has categorically discussed about the said aspect and concluded that once there was partition in 1986 by metes and bounds and it was admitted by the defendants, then there was absolutely no reason for again re-partition of the joint family properties. In para 24 of the judgment of the trial Court, the trial Court has discussed the provisions of sa690.11 6 section 335 to 339(a) of the Hindu Law and has taken a view that there was no explanation on behalf of the defendants as to what prompted them to again partition their joint family properties by executing the second deed dated 9.1.1995. It is difficult to digest that the appellants paid consideration amount of `1,31,000/- to Maruti and Maruti executed partition deed in favour of the appellants. If there is partition in the family, there is no question of passing of consideration amount by the family member. That apart, out of three witnesses who were examined by the appellants, DW-3 Bharat Patil has stated in his statement that he had not seen that consideration amount of `1,31,000/- was passed over to Maruti by the appellants. In absence of convincing evidence brought on record, both the Courts have taken a view that the appellants have utterly failed to prove that Maruti had signed Exh.75. It is not in dispute that Maruti died somewhere in the month of February, 1995 and according to the appellants, said Exh.75 was executed on 9th January, 1995. Both the Courts below, on appreciation of the evidence brought on record and after appreciating the sa690.11 7 facts of the case, have taken a view that the appellants did not prove the partition deed at Exh.75. At this juncture, it would be relevant to reproduce herein below the concluding paragraph from the judgment of the appellate Court, which reads thus: "13. Once defendant admit title of plaintiffs predecessor over suit land and claim their title by virtue of relinquishment or alienation from him, the burden lies on defendant 1 and 2 to establish the fact. The defendants rely on the unregistered partition-deed (Exhibit 75) of 1991. This document is unregistered therefore, is inadmissible in evidence. Secondly, there was partition during life time of father. There is no case of reopening of the partition. Thirdly, there is no concrete evidence as to payment of consideration amount from defendant nor they counter claimed for that." 6. Therefore, in the aforesaid background and after going through the judgments of the Courts below, it appears that both the Courts below have taken a view that it is very difficult to accept that Maruti was present at the time of execution of partition deed at Exh.75 and it bears his signature and he has consented for execution of second partition. Secondly, DW-3 admitted in his cross- examination at Exh.No.76 that the consideration amount sa690.11 8 of suit property `1,31,000 were not given in his presence. Therefore, the trial Court held that this falsifies the fact that defendants had paid an amount of `1,31,000 to Maruti Pawale against the consideration amount of the suit property. The said finding has been confirmed by the lower appellate Court. Both the Courts have concluded that the partition took place in the year, 1986 i.e. on 21.9.1986 as admitted by the appellants and in such situation, no explanation has been offered by the appellants as to what prompted them to again partition their joint family properties by executing the second deed dt. 9th January, 1995. 7. Therefore, in the aforesaid background, the contention of the appellants that Exh.75 is a genuine document, cannot be accepted. As stated earlier, the arrangement by way of 'partition deed' and payment of consideration amount of `1,31,000 for said arrangement by the appellants to deceased Maruti, cannot go hand in hand. The appellants herein did not approach the Court with clean hands. The appellants first asserted that there sa690.11 9 was lease deed in favour of the appellants in the year, 1988. However, subsequently, when they failed to bring anything on record to show that such lease deed was executed, they tried to place reliance on Exh.75. Therefore, in the aforesaid background, if the grounds taken in the second appeal are perused, none of the ground appeals to this Court, that there is any substantial question of law for consideration in this second appeal. 8. For the aforesaid reasons and in view of the concurrent findings recorded by the Courts below this second appeal deserves to be dismissed. Accordingly, second appeal is dismissed summarily. Consequently, civil application does not survive and stands rejected. [ S.S. SHINDE ] JUDGE. ... PLK/*