1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.250 OF 1987 Shivaji s/o Shankar Hake (since deceased, through his L.Rs): 1 Smt.Gangabai w/o Shivaji Hake, age: 47 years, Occ: Agri., 2 Sow.Anita w/o Anil Bandgar, age: 27 years, Occ: Household, 3 Shailaji d/o Shivaji Hake, age: 25 years, Occ: Agri., 4 Bhagyashri w/o Balaji Bandgar, age: 23 years, Occ: Household; 5 Nilkanth s/o Shivaji Hake, age: 22 years, Occ: Agri., 6 Sunita d/o Shivaji Hake, age: 18 years, Occ: Household, 7 Smt.Putlabai Bhagwanrao Hake, age: 55 year, Occ: Agri., 8 Mohan s/o Bhagwanrao Hake, age: 37 years, Occ: Agri., 9 Ashok s/o BhagwanraoHake, age: 33 years, Occ: Agri., All R/o Bhokarambha, Tq.Renapur, District Latur. Appellants Versus 1 Prabhakar s/o Limbaji Hake, age: 48 years, Occ: Agri., R/o Bhokarambha, Tq.Renapur, District Latur. 2 2 Shamrao s/o Limbaji Hake, age: 38 years, Occ: Agri., R/o as above. 3 Sitabai w/o Shankar Hake, Appeal is dismissed as (since deceased) against R.No.3 vide Registrar’s order dated 30.11.1988. 4 Baburao s/o Limbaji Hake, since deceased, through his L.Rs.: 4-1) Kalabai w/o Baburao Hake, age: 65 years, Occ: Household, 4-2) Sojrabai w/o Baburao Hake, age: 62 years, Occ: Household, 4-3) Sumanbai d/o Baburao Hake, age: 42 years, Occ: Household, 4-4) Mangalbai d/o Baburao Hake, age: 40 years, Occ: Household, 4-5) Rajesaheb s/o Baburao Hake, age: 36 years, Occ: Agri., 4-6) Dajisaheb s/o Baburao Hake, age: 34 years, Occ: Agri., 4-7) Sunandabai d/o Baburao Hake, age: 37 years, Occ: Household, 4-8) Mahanandabai d/o Baburao Hake, age: 35 years, Occ: Household, All R/o Bhokramba, Tq.Renapur, District Latur. Respondents Mr.S.S.Chaudhari, advocate for appellants. Mr.H.K.Munde, advocate for Respondents No.1 & 2. 3 CORAM: R.M.BORDE, J. DATE : 23 rd February, 2010. ORAL JUDGMENT: 1 This is an appeal by original defendant no.2 raising exception to the concurrent judgments delivered by the Courts below. 2 Respondents No.1 & 2 – original plaintiffs instituted Regular Civil Suit No.80/1976 claiming decree of declaration of ownership and perpetual injunction in respect of agricultural properties bearing S.No.101-A to the extent of 4 acres and land S.No.121-E to the extent of 5 acres 5 gunthas, situate at village Bhokramba, Tq.Renapur, District Beed. Plaintiffs claim that their original ancestor Khanderao, who had two sons by name Limbaji and Shankar, died somewhere in 1969, whereas Limbaji died in 1957 and Shankar died in 1973. Shankar is survived by two sons and his wife Sitabai. Defendants no.1 and 2 are sons of Shankar, whereas, plaintiffs no.1 and 2 are sons of Limbaji, whereas, another son of Limbaji, by name Baburao, is impleaded as defendant no.4. According to plaintiffs, partition of family lands took place during life time of Khanderao between himself and his two sons in the year 1954. During partition, land S.No.101-A admeasuring 12 acres 18 gunthas. S.No.121-E admeasuring 5 acres 5 gunthas; and S.No.4-A admeasuring 13 acres 21 gunthas of village Bhokramba were allotted to the share of Khanderao. In the year 1965, Khanderao alienated 8 acres of land out of S.No. 101-A . On demise of Khanderao, suit lands are allotted during partition effected between plaintiffs and deceased Shankar. Deceased Shankar was allotted land S.No.4-A admeasuring 13 acres 21 gunthas. Defendants, however, are creating hindrances in the possession of plaintiffs over suit land and denying their ownership, as such, they are constrained to approach the Court. 3 Defendant no.1 resisted suit by filing written statement at Exhibit-20. He contended that suit lands were exclusively owned by his father Shankar and he was in possession until death i.e. till 1973 and after demise of Khanderao, the 4 property has fallen in the hands of defendants, as deceased Shankar was the only heir surviving at the time of death of Khanderao. It is contended that entries in the revenue record are effected accordingly, which proves contention of defendants. Defendants, as such, prayed for dismissal of suit. Other defendants did not appear, as such, suit was proceeded ex parte against them. Defendant no.1 died during pendency of suit and pursis was presented by plaintiffs stating that other defendants represent deceased defendant no.1 and as such, they may be considered as L.Rs. of deceased defendant no.1. 4 After consideration of evidence led by plaintiffs, trial Court came to the conclusion that that plaintiffs have established their case and as such granted decree as prayed for by judgment and decree dated 29.12.1980. The judgment and decree passed by the trial Court was subjected to challenge at the instance of original defendant no.2 in Regular Civil Appeal No.56 of 1981, which came to be heard and disposed of by District Judge, Latur, who was pleased to dismiss same by judgment and decree dated 24.08.1987. 5 At the time of admission of appeal, this Court found that grounds stated in paragraphs no.III, IV and VI, involve substantial questions of law. Those are quoted below: III It ought to have been held that the date and year on which partition of the property belonging to deceased Khanderao took place has not been given by the plaintiff in their suit. IV The Courts below did not record the finding in regard to the date and year of partition of the property held by deceased Khanderao. Conclusions drawn by both the Courts below in regard to allotment of land 5 bearing Sy.No.101/A to the allotment of land bearing Sy.No. 101/A to the extent of 5 acres and 5 gunthas situate at village Bhokaramba went to the shares of plaintiff, are perverse as there is no discussion in regard to the evidence alleged to have been adduced by examining Prabhakar Limbaji Hake and Baburao Bhise. VI The findings of the Courts below are merely based on illegal presumptions, surmises, conjectures and assumptions. 6 I have heard arguments advanced by Shri Choudhary, learned Counsel for appellants and Shri Munde, learned Counsel for Respondents No.1 & 2 – original plaintiffs. 7 Shri Choudhary, learned Counsel for appellants, has vehemently contended that plaintiffs have failed to establish alleged partition, which is said to have taken place during life time of Khanderao in 1954 and allotment of shares in accordance with such partition. It is also contended that plaintiffs have failed to establish allotment of shares and partition between plaintiffs and deceased Shankar. The case put up by plaintiffs in respect of allotment of suit land to deceased Limbaji has not been substantiated. It is stated that on demise of deceased Khanderao in the year 1973, the properties had fallen in the hands of Shankar and it remained with him. As such, plaintiffs are not entitled to seek claim in respect of disputed property. 8 I have considered contentions raised by appellant – original defendant no.2 and Respondents No.1 & 2 herein - original plaintiffs. It is to be noted at this stage that case put up by plaintiffs and oral evidence led by them has not at all been controverted by defendants. Except presentation of written statement by defendant no.1, nothing has been done by defendants to controvert contentions raised by plaintiffs. The witnesses for plaintiffs examined 6 during trial of the suit have not even been cross examined by defendants. The case pleaded by plaintiffs, thus, has remained unchallenged. The trial Court was, therefore, justified in accepting case put up by plaintiffs and in granting decree. 9 It is to be noted at this stage itself that appellant herein – original defendant no.2 chose to remain absent during conduct of trial and even did not bother to file written statement controverting contentions raised by plaintiffs. In the absence of there being any defence raised by defendants controverting contentions of plaintiffs, defendant no.2 – appellant herein cannot be permitted to state that plaintiffs have failed to establish their case. The trial Court as well as first appellate Court were justified in considering evidence led by plaintiffs and granting decree in their favour. Even otherwise, findings of facts recorded by Courts below need not be interfered with while dealing with Second Appeal under Section 100 of the Code of Civil Procedure. There is no substance in the appeal presented by appellants and same deserves to be dismissed. 10 In the result, Appeal stands dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa25087 7 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.3985 OF 2009 WITH CIVIL APPLICATION ST.NO.7821 OF 2009 IN SECOND APPEAL NO.250 OF 1987 Shivaji s/o Shankar Hake (deceased) through L.Rs. Applicants Versus Prabhakar s/o Limbaji Hake & others Respondents Mr.S.S.Choudhary, advocate for appellants. Mr.H.K.Munde, advocate for Respondents No.1 & 2. CORAM: R.M.BORDE, J. DATE : 23 rd February, 2010. P.C.: 1 These are applications seeking condonation of delay of 13 years and three months occurred in presenting application for bringing on record legal representatives of deceased appellant – Shivaji as well as for setting aside order of abatement of appeal. 2 Heard learned Counsel for respective parties. For the reasons stated in the applications, application deserves to be allowed and same are accordingly allowed. Delay of 13 years and 3 months occurred in presenting application for bringing on record legal representatives of deceased appellant – Shivaji on record stands condoned. Order in respect of abatement of appeal, if any, stands set aside. Legal representatives of deceased appellant – Shivaji are permitted to be brought on record. Record Be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sa25087 8 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.8792 OF 2009 WITH CIVIL APPLICATION ST.NO.18844 OF 2009 IN SECOND APPEAL NO.250 OF 1987 Shivaji s/o Shankar Hake (deceased) through L.Rs. Applicants Versus Prabhakar s/o Limbaji Hake & others Respondents Mr.S.S.Choudhary, advocate for applicants. Mr.H.K.Munde, advocate for Respondents No.1 & 2. CORAM: R.M.BORDE, J. DATE : 23 rd February, 2010. P.C.: 1 These are applications seeking condonation of delay of 231 days occurred in presenting application for bringing on record legal representatives of deceased Respondent No.4 - Baburao as well as for setting aside order of abatement of appeal. 2 Heard learned Counsel for respective parties. For the reasons stated in the applications, applications deserve to be allowed and same are accordingly allowed. Delay of 231 days occurred in presenting application for bringing on record legal representatives of deceased Respondent No.4-Baburao on record stands condoned. Order in respect of abatement of appeal, if any, stands set aside. Legal representatives of deceased Respondent No4- Baburao are permitted to be brought on record. Record Be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sa25087