1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1507 OF 2004 with SECOND APPEAL NO.780 OF 2008. ___ Dhakalya Somanya Kokani - APPELLANT VERSUS Bandu Somanya Kokani and Ors. - RESPONDENTS ***** Mr.PS Patil Advocate for Appellant; Mr.CR Deshpande,Advocate for Respondent No.2 to 4 ----- CORAM : K.U.CHANDIWAL, J. DATE : 19th April, 2010. PER COURT : 1) Heard both the counsel extensively. 2) These two appeals question the findings recorded by the first Appellate Court in Regular Civil Appeal No.50/1999 and 51/1999, arising out of Regular Civil Suit No.57/1994 to the learned Civil Judge, Junior Division, Sakri. The learned CJJD, Sakri had decreed the suit, which as stated above, is reversed by the learned first Appellate 2 court. 3) Extensive submissions are made by both the sides. The learned Counsel for the appellant submits - a) the First Appellate court erroneously framed the issues and the findings are wrong and perverse; b) Sonibai, against whom the suit was filed, is not from the branch of the plaintiff or his father, she is not a family member; c) Chaitram, one of the person in possession of the property, is not a family member, his possession based on mutation entry will not disturb the share of the plaintiff in the agricultural fields; d) both the courts did not consider the pleadings and were confused treating Sonibai to be a daughter of Aananda, uncle of Dhakalya and hence mist is created; and e) better to remand the matter to the learned Judge to frame proper issues. 4) The plaintiff asserted that there was no equal partition of the different fields between himself, his brothers Bandu and Pandu and consequently, since unequal partition or mutation entries have taken place, the plaintiff is entitled for 1/3rd share in the respective fields and possession thereof. The plaintiff claimed that defendant nos. 2, 3 and 4 took dis-advantage of illiteracy of the plaintiff and defendant no.1 3 Bandu and defendant No.5 - Pandu and consequently, got erroneous mutation entries dated 21.12.1975. Such entries are not binding on the plaintiff's right. 5) The learned first Appellate court framed points for determination and answered the same. It is a prerogative of the learned First Appellate court how to formulate the points and answer them. It need not be a copy of issues. Additional points divorced from issues, need not be criticised. I do not see any error on the part of the learned Judge on this aspect. 6) Second part, that is important between the parties is, by the conduct, the parties allowed the mutation entries to take effect; enjoyed separate possession and after slumber of more than 12 years, the plaintiff seeks partition in the agricultural properties, calling it to be unequal. It is a matter of record, the plaintiff, after such partition, having taken place long back, and the mutation entries having taken place, effected interse partition of his share to his son Gaju. The plaintiff did not explain as to how he could do so, had there been no partition. 7) In the deposition of Onkar son of 4 Sonibai, unequivocally he has illustrated that the plaintiff Dhakalya or Bandu or Pandu are his maternal uncle and there was partition between his mother Sonibai, Bandu and Pandu. This has not been specifically denied as to the status of said Sonibai to be daughter of Ananda. Even plaintiff did confirm, Sonibai to be his cousin. The only point, that is repeatedly harped by Mr. Patil is, when the plaintiff in his suit asserts Sonibai to be a daughter of Aananda Sahadu, she having not denied the same specifically, she could not be treated to be daughter of Aananda Yadav. This part of submission is certainly illusory, such admission by Sonibai by itself will not divest her from rights in the properties. There is no evidence from plaintiff to disprove Sonibai to be daughter of Ananda. The mist of Ananda Yadav or Ananda Shahadu to be two persons remain unfold from plaintiff. There was no confusion to both Courts. The theory of partition having taken place way back in 1975 and thereafter mutation in 1986 is coherently explained and established by the respective parties based on the revenue entries. This has not been answered by the plaintiff, who stakes claim in the property. The revenue entries have presumptive value. They are never challenged in any forum by plaintiff consciously. 5 8) The purchase by Chaitram, defendant no. 3, certainly is by a person outside the branch. This has rightly been held to be a legal transaction as said Chaitram (defendant no.3) stepped in the shoes of Bandu (Defendant No.1), brother of Dhakalya and Pandu. Anything wrong, that has been done, has been done against Bandu, it was for and from his share, plaintiff could not resort to the same against Chaitram. Bandu has not filed any proceedings against such alienation and possession in favour of Chaitram. Long drawn mutation entries, having been allowed by the parties, the conduct of the parties refrain the plaintiff from staking a claim that there was no valid or legal partition between the parties. It is a matter of record, the properties appear to be allotted on new tenure land scheme of the Government and in order to obliterate its effect, at some level transactions contrary to the law have taken place by mutation entries and allowing the parties to cultivate. Now after lapse of such a considerable period and the plaintiff having allowed the partition between his father Somanya Aananda and Bhavdya, having taken place, he cannot now try to re-open the same alleging unequal partition. The findings of the first Appellate Court, negativing the contention of the plaintiff seeking partition, do not flow with any erroneous 6 analysis of the record. 9) The First Appellate court, while answering the Point No.3, relating to adverse possession, formulated the following point/question - "(3) Whether the original defendant nos.2 to 4 proved that they have perfected the title to the portions of the suit property by adverse possession for more than 12 years prior to the suit", and the finding to this question/point is - does not survive so far as original deft. nos.2 and 4 are concerned in view of the findings to Point No.2. This finding is certainly in tune to the extent of Defendant no.2 Sonibai and defendant no.4 - Onkar is concerned and consequently, the finding ultimately recorded by the learned first Appellate court revolves to the possession of Chaitram and it will not have any contrary impact in the analysis by the learned first Appellate court in formulation of point no. 3. 9) In the result, both the Appeals lack merit, they are dismissed as they do not project to formulate any substantial question of law between the parties. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa1507.04