1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 397 OF 2009 1. Saheb S/o Gangaram Gaikwad Age : 55 years, Occ : Service, R/o Hudco, Parbhani, Dist. Parbhani. 2. Girjabai W/o Gangaram Gaikwad Age : 72 years, Occ : Nil, R/o As above. 3. Rama S/o Gyanu @ Dnyanoba Gaikwad Age : 79 years, Occ : Agri., R/o Math Karahala, Tq. Parbhani, Dist.Parbhani. 4. Gangadhar S/o Santosh Wawale Age : 43 years, Occ : Agriculture, R/o Durdi, Tq. & Dist. Parbhani. 5. Bapurao S/o Sonaji Alshe Age : 48 years, Occ : Agri., R/o Durdi, Tq. & Dist.Parbhani. Appellants V/s 1. Bhiwaji S/o Gyanu @ Dnyanoba Gaikwad Age : 60 years, Occ : Agri., R/o Math Karhala, Po.Sadegaon, Tq. & Dist. Parbhani. 2. Arjun S/o Gyanu @ Dnyanoba Gaikwad Age : 52 years, Occ : Agri., R/o Math Karhala, Po.Sadegaon, Tq. & Dist.Parbhani. 3. Champati Gyanu @ Dnyanoba Gaikwad Age : 50 years, Occ : Agri., R/o Math Karhala, Tq. & Dist. Parbhani. 2 4. Kondiba S/o Sakharam Gaikwad Age : 32 years, Occ : Agri., R/o Math Karhala, Tq. & Dist. Parbhani. 5. Bhagwan S/o Sakharam Gaikwad Age : 34 years, Occ : Agri., R/o Math Karhala, Tq. & Dist. Parbhani. 6. Dnyanu W/o Sakharam Gaikwad Age : 30 years, Occ : Agri., R/o Math Karhala, Tq. & Dist. Parbhani. 7. Bainabai Sakharam Gaikwad Age : 58 years, Occ : Agri., R/o Math Karhala, Tq. & Dist. Parbhani. 8. Santosh S/o Khiraji Alshe Age : 54 years, Occ : Agri., R/o Durdi, Tq. & Dist. Parbhani. 9. Kautikrao S/o Govindrao Alshe Age : 45 years, Occ : Agri., R/o Durdi, Tq. & Dist. Parbhani. Respondents ------------------------------------------------------ Mr. Swapnil S. Rathi, Advocate for appellants. Mr. P.R. Katneshwarkar, Advocate for Respondent Nos.1 to 3. ------------------------------------------------------ (CORAM : V.R. KINGAONKAR,J.) DATE : 26th November, 2009. ORAL JUDGMENT : 1. Heard learned Counsel for the parties. 2. The appellants are the original defendants. 3 The respondents filed suit for partition, declaration and injunction vide R.C.S. No.335/1999. The suit came to be dismissed. The First Appellate Court, however reversed the decree and held that the respondents (plaintiffs) were entitled to their respective shares in the suit land. The First Appellate Court further held that the sale deed executed by the defendant no.1 was not binding on the rights of the plaintiffs. 3. According to the plaintiffs, the suit land is their ancestral property. They asserted that originally the suit land was owned by Rakhmabai W/o Nagya, who was real sister of father of plaintiff nos. 1 to 3 i.e. Gyanu @ Dnyanoba. She died prior to about 30 years. She was widow and had no issue. She was residing with her brother i.e. Gyanu @ Dnyanoba. Said Gyanu @ Dnyanoba died, leaving behind him six sons and one daughter. The parties are sons and legal representatives of some of the deceased sons of Gyanu. The Trial Court dismissed the suit holding that by virtue of mutation entry no.244 dated 05.01.1966, the suit land was received by defendant no.3 Rama. It was held that the suit land was not joint Hindu family 4 property. Consequently, the suit for partition and separate possession was dismissed. The First Appellate Court however held that even though the property was received by the family members from deceased Rakhmabai, yet it did not acquire the character different from that of the joint Hindu family property. The First Appellate Court also held that there is no basis to assume exclusive ownership of defendant no.3-Rama on the basis of mere mutation entry as claimed by him. It is held that the mutation entries do not make or unmake the title and therefore the contention of the defendants was repelled. 4. Mr.Rathi would submits that the First Appellate Court has committed patent error while reversing the order of dismissal and that the First Appellate Court did not properly framed the proper points as required under Order 41 Rule 31 of the Civil Procedure Code. He contended that the issue regarding limitation for challenging the sale deed was also not addressed by the First Appellate Court and as such, the second appeal deserves consideration. He invited my attention to the observations made in “Khatunbi Mohammad Sayeed 5 and ors V/s Aminabai Mohammad Sabir and others” {2007(2) Bom.C.R. 900}. A Division bench of this Court held, in the given case, that the First Appellate Court was required to formulate the points for determination and to analyse the material on record and thereupon arrive at conclusion to be delivered as its decision. The requirement to follow the provision under Order 41 Rule 31 of the Civil Procedure Code can not be undermined. Still, however, merely because such requirement was not fulfilled, it can not be said that the decision of the First Appellate Court is unsustainable when there is ample material which indicate that the First Appellate Court applied its mind to the relevant issues involved in the matter. The Apex Court in “G. Amalorpavam V/s R.C. Diocese of Madurai” 2006 (4) Mah.L.J.(SC) 187 clarified such legal position. So also this Court in “Sahadu Modak (D) through L.Rs. V/s Suryakant Vithal Modak” 2006 (3) Mh.L.J. 295 held that if body of the judgment shows material compliance of Order XLI Rule 31 of the Civil Procedure Code, then the fact that the points for determination were not formulated, would not vitiate the proceedings. 6 5. The suit land was held by deceased-Rakhmabai. The contesting defendant no.3-Rama got transferred it merely on the basis of the mutation entry no.244/1967. Mr.Rathi would submits that the mutation entry was recorded in the life time of said Rakhmabai and therefore the rights of the defendant no.2-Rama could be considered. I do not agree. Unless there is a valid document to infer transfer of exclusive right in favour of defendant no.3-Rama, he could not have been allowed to raise plea of exclusive ownership on the basis of mere mutation entry no.244. The First Appellate Court considered the admitted relationship and the other circumstances. Obliviously, the partition decree can not be faulted with. The question whether the suit land was handed by Gyanu @ Dnyanoba and his predecessor or it was owned by Rakhmabai is also no much importance. For, after death of Rakhmabai, the succession opened and by virtue of section 15 of the Hindu Succession Act, 1956, the nephews were entitled to get equal shares. 7 6. Considering these aspects, I find no substantial question of law involved in the present Second appeal and therefore, same is dismissed. (V.R.KINGAONKAR) JUDGE GAS/sa397.09