1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO.670 OF 2004 Balasaheb s/o. Bhagwanrao Rajurkar, age 54 years, occ. Priest, R/o. Zurale Gopinath Galli, Parli Vaijinath, taluka Parli Vaijanath, district Beed. - - - - Appellant [ Orig. defendant ] versus Shriram s/o. Bhagwanrao Rajurkar - died through L.R.s 1A) Mina Shriram Rajurkar, age 42 years, occ. household, 1B) Jitendra Shriram Rajurkar, age 17 years, occ. household, 1C) Narendra Shriram Rajurkar, age 15 years, occ. household, 1D) Surendra Shriram Rajurkar, age 13 years, respondents Nos.1B to 1D minors u/g. of mother respondent no.1A - Mina Rajurkar. All residents of Chandulal Lahoti's House, Ganesh Paar, Near Ram Mandir, Parli Vaijanath, dist. Beed. - - - Respondents Shri S. S. Chaudhary, Advocate for the appellant. CORAM: N. D. DESHPANDE, J. Dated : 30th November 2009 2 PER COURT: 1. Heard Shri S. S. Choudhary, learned Counsel for the appellant. 2. The suit is between the two brothers. Plaintiff Shriram filed a suit against defendant Balasaheb, his elder brother, who is present appellant for declaration and injunction of half share in the suit house and open space which was purchased jointly by a sale deed in the name of both, from one Shri Narayan Joshi who received full consideration paid by both and executed sale deed in favour of both brothers. 3. The dispute arose in the year 1992 when plaintiff (respondent) intended to do some construction on the open space and it was objected by the defendant. His proposal was pending before the municipal council for required permission. Appellant issued legal notice to the respondent plaintiff asking him to stop the construction, denying his half share in the suit house and also his joint possession. So plaintiff (respondent) filed a suit for declaration and injunction. The trial Court in Regular Civil Suit No. 196 of 1993 by a judgment dated 21-1-1995 dismissed the plaintiff's suit. 3 However, in First Appeal, plaintiff succeeded in his appeal. First appeal came to be allowed by Ad hoc Additional District Judge, Ambejogai by judgment and order dated 12-7-2002 and respondent / plaintiff's suit claim was decreed to the extent of half share and further for injunction as sought. It is the impugned judgment in this appeal by the appellant defendant. 4. Heard Shri S. S. Choudhari, learned Counsel for the appellant. There is no difficulty to understand the dispute which is very common dispute between two brothers especially when there is a joint sale deed. There is presumption in the Transfer of Property Act that joint sale deed should be presumed for equal share unless it is otherwise stated. In such matters when parties are real brothers there is difficulty to believe in the oral evidence as to who contributed and what is the proportion of contribution. It is also presumed to be the same extent of share mentioned in the sale deed. The legal presumptions are provided in law and whenever there are legal presumptions provided in law, little is left to a Judge to rebut the presumption unless good amount of evidence is adduced is rebuttal. This is the settled position. 5. With the help of Shri Choudhary, I have gone through the 4 pleadings. Ultimately in every suit or in appeal what is decided between the parties is original claim and contention raised against each other and it is decided as formal expression, what is called "decree", i.e. the adjudication of right between the parties. Therefore, even at the stage of admission, this Court is not merely interested to know what the substantial question of law but the question whether both the Courts have dealt with or adequately tackled real issue between the parties. In the background of above stated facts and nature of dispute not only pleadings are material but relations of parties are equally important in order to find out the truth and to appreciate respective rival claims of parties. The appellant before this Court is aggrieved because of the impugned order passed by 1st appellate Court decreeing his brother's claim of half share for possession and the injunction. It is admitted fact that sale deed is in the joint name. Elder brother took lead for entering into an agreement. So agreement is in his name. But any agreement which is executory, loses importance when the same is already executed in the form sale deed. Now what is required to be appreciated is the sale transaction. I have already discussed presumptions and they are no doubt in favour of plaintiff brother. With this little scope, Shri S. S. Choudhari, learned Counsel for the appellant finds it difficult to convince on the point as to substantial 5 dispute or question of law to be tried hereinafter. Written statement on record filed by the appellant's brother defendant is in clear terms that a sale deed was obtained by him jointly in the name of younger brother (plaintiff) because he was marriageable and it should help him in getting proposal in marriage. This is the consideration and his honest desire. Parties are bound by their pleadings. If this is the case, then there is no question whether consideration was paid by the plaintiff brother or not. By this time, plaintiff brother had married and it might be because house stands in his joint name. As such, parties are also estopped to deny now the title and the interest of other brother to whom he already favoured and obliged by having sale deed in his name. Present stand taken by the appellant in an appeal does not sustain in law. 6. The judgment and order passed by the 1st appellate Court is maintained. Appeal stands dismissed at the stage of admission summarily and disposed of. ( N.D.DESHPANDE, J. ) pnk/sa67004