1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. SECOND APPEAL NO. 164 OF 2010 1. SHRIKRISHNA MOTIRAMJEE DIKE & ORS. THRU LRS. KOKARDA, ANJANGAON SURJI 2. SMT INDUBAI PRAKASH DIKE KOKARDA, ANJANGAON SURJI 3. ARCHANA MAROTI BHADKE KOKARDA, ANJANGAON SURJI 4. HIMMAT @ SATISH PRAKASH DIKE KOKARDA, ANJANGAON SURJI 5. AMOL PRAKASH DIKE KOKARDA, ANJANGAON SURJI 6. MOTILAL PUNAMCHAND ZAMWAR NIMBHARI, ANJANGAON SURJI .. APPELLANTS VERSUS 1. SMT TARABAI SUKHDEO DIKE & 6 ORS. GANEDIWAL LAYOUT, CAMP 2. ALKA SUKHDEORAO DIKE CAMP 2 3. STATE OF MAH THRU COLLECTOR, AMRAVATI 4. BHIMRAO GULABRAO DHANBEHADUR NIMBHARI, ANJANGAON SURJI 5. LAXMAN RAJARAMJI WADATKAR NIMBHARI, ANJANGAON SURJI 6. DIGAMBAR MOTIRAMJEE DESHBHRATAR NIMBHARI, ANJANGAON SURJI 7. PRAKASH MOTIRAM GAJBE NIMBHARI, ANJANGAON SURJI .. RESPONDENTS Shri. N. R. Saboo, Counsel for the appellants. Shri. C. V. Kale, Counsel for the respondents. CORAM: C. L. PANGARKAR J. Date: 28th APRIL 2010. ORAL ORDER: . This Second Appeal is preferred by the original plaintiffs. Plaintiffs filed a suit for declaration and injunction claiming that the suit properties Sur. Nos. 18, 19/2 and 2/3 were the joint family properties. It may be mentioned that one Motiramji Dike had two wives namely Manjiribai and Gayabai. Namdeorao and 3 Sukhdeorao were sons from Manjiribai and Narayan, Shrikrishna, Purushottam and Prakash were sons born from Gayabai. They all formed a joint family. Motiramji had brother by name Ambadas. His daughter was married to one Panduji. It is alleged that Panduji had an extreme love and affection for Sukhdeo the son of Motiram. It is also alleged that out of this love and affection this Panduji gifted the above said fields to Sukhdeo in the year 1943 by a registered gift deed. It is the case of the appellant/plaintiff that this property which was gifted to Sukhdeo by registered gift deed was infact thrown into common hotch potch by Sukhdeo and the suit property has not been partitioned. It is the contention of the plaintiffs that there was partition of property in 1976 and all were given their respective shares. The plaintiffs had a right to dispose of the suit property. They sought declaration that the order passed by the S. D. O. dated 06.08.1994 is void and in effective. Plaintiff also contended that the suit property fell to the share of plaintiff no.1 and 2 who subsequently sold the suit property to defendants 3 to 6. 4 2. The said suit was resisted by the defendants. Defendants admitted the relationship between the parties. They also admitted that suit property was given to Sukhdeo by Panduji under gift deed dated 09.06.1943. It is their contention that this property was never thrown in common hotch potch and it was exclusive property of Sukhdeo. He had never abandoned his title over the suit property. It is contended that Sukhdeo had applied for recording his name on the basis of the gift deed and made a request to remove the names of the other brothers of Sukhdeo. Sukhdeo died in 1990 and the application was considered by the S. D. O. vide order dated 06.08.1994 and he corrected the mutation entry. 3. The learned Judge of the trial Court framed issues and recorded the evidence. It was found by the trial Court that there was already a partition in the year 1958 and the property in question was never thrown into common hotch potch nor did Sukhdeo voluntarily blend his self acquired property in joint family property. Learned Judge also found that no suit could lie for correction of mutation entry and holding so the suit was dismissed. 5 4. Appeal was preferred before the District Judge. Additional District Judge who decided the appeal concurred with the finding of the trial Court and dismissed the appeal. 5. Plaintiffs feeling aggrieved prefer this Second Appeal. 6. Learned counsel for the appellants submits that the Courts below have taken into consideration the evidence which was not pleaded. He also contended that Courts below have not taken into consideration the other evidence in the form of Return filed by Sukhdeo under the Ceiling Act. He submits that had the Courts taken into consideration the evidence in the form of Return filed by Sukhdeo they would not have come to such a conclusion. He also submits that the Courts below have wrongly relied upon the evidence which is not pleaded. 7. After going through the Written Statement one will find that defendants have not specifically pleaded about the registered partition deed of 1958. It was contended that in the absence of pleading such a document could not have been considered. In this regard learned counsel for the respondents took me through the 6 judgment of the trial Court. Trial Court has observed that gift deed was shown to the witness during the course of the cross examination. A party is certainly entitled to show a particular document to a witness in the cross examination. It is the document which bears the signature of Shrikrishna plaintiff no.1 and if it so bears his signature, the party has had every right to bring the said document to the notice of Shrikrishna and confront him with the same, though it was not relied in Written Statement. In fact, it could be said that if Shrikrishna had signed that registered partition deed, he should not have suppressed the same. It is because of the suppression of that registered deed of instrument that the plaintiff was required to be shown the said document in the cross examination. The said document bears the signature of all parties and is a registered instrument. The fact that this property which is the subject matter of the suit was not included in the partition of 1958 clearly suggests that Sukhdeo never intended to throw said property in the common hotch potch right from 1943 to 1958. Has he had such an intention, he could have very well thrown the property in common hotch potch and this property could have 7 been the subject matter of that partition itself. Courts below have rightly appreciated this fact and have rightly accepted that part of the evidence. 8. As far as the Return filed before the Ceiling Authority is concerned Sukhdeo may not have shown this property in his holding. That does not necessarily go to show that said property was a joint family property. At the most it can be said that Sukhdeo had mislead the Ceiling Authority or had suppressed certain information from the Ceiling Authority, but no inference can be drawn that since this was not so shown it was a joint family property. Non consideration of the ceiling return is of no consequence. No substantial question of law in fact was urged before the Court. What was urged was a question of fact. There is therefore no substance in the appeal. The same is dismissed. JUDGE svk