1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.219 OF 1993. Gopinath s/o Budhaji Panchal (Sutar), AGe: 28 Yrs., occu. Agril. r/o Thorva, Tq.Basmat, Dist.Parbhani. - APPELLANT (orig.Plaintiff) VERSUS Mohd. Naim s/o Khaja Miya Age: 38 Yrs. occ.Agril. R/o Thorva, Tq. Basmat, District Parbhani - RESPONDENT (orig.Defendant) ***** Mr.VR Sonwalkar,Advocate for Appellant; Respondent served. ----- CORAM : K.U.CHANDIWAL, J. DATE : 13th April, 2010. ORAL JUDGMENT : 1) Heard learned Counsel for the appellants extensively. 2) The Second Appeal questions the findings recorded in Regular Civil Appeal No.242/1983 dated 2nd September, 1992. The appeal was admitted 2 on 7.9.1993 on grounds nos. V, VI, IX, X and XVI, which are reproduced as under : “V. Whether the lower appellate court is right in allowing the appeal of respondent, in spite of the admitted fact that, the partition is not effected by metes and bounds, and excess land has been sold by Prayagbai in favour of respondent and as she has no right to alienate the share of plaintiff as per provisions of Hindu Law under Article 261, 262, 269 and 270. VI. Whether the Lower appellate court is right in giving findings while allowing the appeal that the quality of land in possession of appellant/plaintiff is fertile and good. Therefore, there is no necessity to file suit for partition and appellant is not entitled to get the possession of his share sold by Prayagbai in favour of respondent/defendant. IX. Whether the lower appellate court has rightly given findings in paragraphs Nos. 18 and 19 of impugned judgment and whether it is contrary to the provisions of evidence Act and Hindu Law. X. Whether the lower appellate court has correctly allowed the appeal without any direction to r respondent/defendant to file a suit for general partition and without direction to hand over the possession of land to plaintiff as per the settled law and ratio laid down by the various judgments of Bombay High Court. 3 XVI. Whether the lower appellate court has failed to exercise his jurisdiction by not directing the defendants to file a suit for general partition and to hand over the possession of suit land to the plaintiff as provided under Article 269, 270 of Chapter XII of Clause IV of Hindu Law." 3) The plaintiff sought declaration, the sale-deed dated 3.11.1977 executed by Prayagbai in favour of Mohammad Naim was illegal and not binding on the rights of the plaintiff in the immovable property. 4) The plaintiff is son of Budhaji from his earlier wife, while Prayagbai is the widow. Budhaji died in the year 1974. Prayagbai died in 1978. 5) Budhaji owned ancestral land survey No. 24-B to the extent of 2 Annas and 8 Paise. Prayagbai subsequently purchased 2 acres and 29 gunthas land from Survey No.24, dated 7.6.1974 from one Manik. It was the case of the plaintiff, the purchase of Prayagbai from Manika was based on agreement of sale in favour of Budhaji, where Budhaji had paid Rs.1,000/- to said Manika and even during his life time subsequently Budhaji paid Rs.500/-. The sale-deed remained to be executed, and the sale-deed was 4 executed in the name of Prayagbai on 7.6.1974. The plaintiff, a minor, canvassed through his guardian all throughout, that the purchase in the name of Prayagbai was not as her exclusive property and it was from the outcome/ from the nucleus of the joint family held by Budhaji. Before further adverting to the facts, it appears that Mohammed Naim, the purchaser from Prayagbai, by sale-deed dated 3.11.1977 has in turn sold the property to Shivajirao Ganpatrao Gunjkar on 11.1.1991 (Exhibit-19 of the Court of first instance). When the discrepancy about non- disclosure of name of Shivajirao Gunjkar is pointed to Mr.Sonwalkar, he browsed his record to accept that there was indeed an application moved to implead said subsequent purchaser Shivajirao Gunjkar, however, it is not so amended/effected. The fact remains, in record of the court, the respondent is shown only to Mohammed Naim, s/o of Khaja. 6) Now, reverting back to the facts, before the learned Judge there were 7/12 extracts of land Survey No.24/B(Exhibit-77) showing that Budhaji had right, title to the extent of 5 acres and 26 gunthas. The 7/12 extract of the suit land at Exhibit-8 showed that the plaintiff had a right to the extent of 3 acres and 26 gunthas of the land. The 7/12 extract of land Gut No. 5 100(Exhibit-24) established that Prayagbai had right, title and interest for 1 hectare and 92 R. The learned Judge found, form No. 9(3) and (4) of the Consolidation Act at Exhibit-25, showed that the land Survey No.24/A/K, admeasuring 68 R. was given Consolidation number in the land Gut No. 100 and it is so established in Exhibit-26 that the land Survey No. 24/2/2 admeasuring 1 hectare and 2 R. was merged in land Gut No.96. 7) The ultimate analysis is, Prayagbai became owner of the land Gut No.100, which was formed out of land Gut No.24/A/K, admeasuring 68 R. and 24/5/35, admeasuring 1 hectare 24 R. while deceased Budhaji, her husband being owner of the land Survey No.24/2/2 admeasuring 1 hectare and 2 R. during the consolidation scheme. Thus, at the time of consolidation scheme, even if there was a joint family, it had 2 hectares 94 R. of landed property. The first Appellate Court found on analysis, that the land Gut No.100 was assessed at Rs.2.59 while the land Gut No.96 was assessed at Rs.2.98. Consequently, the learned Judge observed, that from the assessment, it can be said that the land Gut No.96 is superior in quality to the land Gut No.100. The learned Judge accepted, even if the land in the name of Prayagbai was more in acreage than the land held by Budhaji, however, in the light of the inferior 6 quality of land held by Prayagbai,the acreage in her possession/occupation was increased by virtue of the consolidation and also by virtue of the sale-deed referred herein before. 8) The Court found, the defendant Prayagbai or for that purposes, the subsequent purchaser, could not establish independent source of Prayagbai to purchase the property referred above from Manika. The Courts consequently held that the property in the name of Budhaji and that of Prayagbai was having the genesis/nucleus of joint-family status. 9) The Court, as stated above, has found the nature of the land in possession of Prayagbai being land Gut No.100 admeasuring 1 hectare and 92 R. and the land in the possession of Budhaji (followed to the plaintiff) from land Gut No.96, admeasuring 1 Hectare and 24 R., had different potentials and consequently holding of Prayagbai for land Gut No.100 was to the extent of her share in the property left over by her husband Budhaji. This observation of the learned first Appellate Court was based on the evidence adduced and the revenue assessment. It being finding of fact, it does not indicate to be swayed with any perversity or any illegality. It does not demonstrate any surmises of the Court. The Court 7 only analyzed the revenue record and the sale instances. Ultimately, the Court found and rightly, that the sale-deed executed by Prayagbai in favour of Naim could not be said to be invalid or ineffective. The first Appellate court rightly interfered in the decree of the court of first instance and held that the sale deed of land Gut No.100 dated 3.11.1977 executed by Prayagbai in favour of defendant was legal and valid. 10) In the above set of facts, the substantial question of law formulated by this Court would not indeed project any such eventuality to interfere in the orders of the first Appellate court. The order does not illustrate any illegality to be branded to interfere. Second Appeal lacks merit, it is dismissed. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/sa219.93 Authentic copy (BD VADNERE,PS)