1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 565 OF 2009 Sandu S/o Mannue Bhaat (Daulat) deceased through his Legal Heirs. ...Appellants VERSUS Bhikabai W/o Dghondiram Dault and others ...Respondents ------------------------------------------ Mr. M.G. Mustafa Advocate for appellants. ----------------------------------------- (CORAM : R.M.BORDE, J ) DATE : 6th October,2009 PER COURT : 1. Heard. 2. This is an appeal by the original defendant raising exception to the concurrent judgments recorded by the Courts below. 3. The plaintiffs instituted suit, claiming partition and separate possession of their one half share in the property. The plaintiff No.1 is mother of plaintiff Nos 2 to 4 and daughter-in-law of defendant No.1. The defendant No.2 is the son of defendant No.1 and defendant No.4 is 2 wife of defendant No.2. The defendant No.6 is son of defendant No.2. According to plaintiffs, husband of plaintiff No.1, namely Dhondiram was Karta of joint Hindu family. He entered into agreement of sale in 1958 for purchasing the suit land, for consideration of Rs.1250/- from its original owner Daulat Jaising. Accordingly, agreement to sell was executed and Dhondiram was put into possession of the suit land. His name has been entered in revenue record. The land was purchased by Dhondiram for joint Hindu family, of which defendant No.1 was member and coparcener. It is contended that the deceased Dhondiram cultivated the land till the year 1970-71. Before execution of agreement to sell the deceased was cultivating the land as tenant on crop share basis, and mutation entry No.61 to that effect was recorded in respect of the disputed land. After demise of Dhondiram, in the year 1971-72, the sale deed of the land was got executed in the name of defendant No.1. The said land was jointly cultivated by the plaintiffs and defendant No.1 till 1985. After 1985, the defendants refused to give their share. As such, the plaintiff were constrained to approach the Civil Court,seeking decree of partition and separate possession. 4. The defendants resisted the suit by filing the written statement. According to defendants, they denied the case 3 put up by the plaintiffs that plaintiffs and defendant N0.1 constituted a Joint Hindu Family and Dhondiram was Karta of the Family. It is contended that Dhondiram and defendant No.1 were not having any ancestral immovable property. It is contended that the defendant No.1 purchased the land of his own and plaintiffs have no share and title over the suit property. The defendants, as such prayed for dismissal of the suit. 5. The trial Court, after considering the evidence led by the parties came to the conclusion that plaintiffs have established that husband of plaintiff No.1, namely Dhondiram contributed for purchasing the landed property. It has been also recorded by the trial Court that initially agreement to sell was executed in the name of Dhondiram and he was put in possession. It has been further observed that mutation entry to that effect also got recorded, showing his possession over the disputed land. The trial Court, thus, has drawn analogy position of husband of defendant No.1, on the strength of agreement to sell in capacity of Karta of the family. On his demise, the sale deed in respect of the disputed land, came to be executed in the name of defendant No.1. The trial Court, thus considering the evidence led by the parties came to the conclusion that the plaintiffs are entitled to one half 4 share in the disputed land. The defendants being aggrieved by the judgment and decree, preferred Regular Civil Appeal No. 173 of 1993, before the District and Sessions Judge, Jalna, and after hearing the parties same came to be dismissed by the 3rd Additional District Judge Jalna, on 06.07.2002. 6. I perused the judgments and findings recorded by the Courts below. I also perused the record and proceedings, received in this court. In the sale deed executed infavour of the defendant, there is reference that the consideration amount has already been received by the Vendor and infact, the possession was also parted. Thus, at the time of execution of the sale deed no consideration was required to be paid, as transaction was already complete and possession was also delivered. Only thing that remained was execution of the sale deed and the same was executed infavour of defendant No.1. The recitals contained in the sale deed itself supports the case put by the plaintiffs. The revenue record also supports the case of plaintiff that the deceased Dhondiram was put in possession of the disputed land and mutation entry No.61 to that effect was recorded. The mutation entry No.61 also shows that the name of husband of plaintiff No.1 as tenant in the record and he was in possession of the same. Considering all these circumstances, I am of the opinion that the Court below 5 has properly recorded the findings that husband of the plaintiff No.1 was entitled to share in the property. The plaintiffs, who succeeded the deceased Dhondiram, brother of defendants are entitled to have one half share in the property. In the circumstances, the findings of fact recorded by the Courts below need not be interfered with while exercising powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in this appeal. Hence, the appeal is dismissed. 7. The learned counsel appearing for the appellants prays for stay to the execution and operation of the judgment and decree, the request stands rejected. Consequently, the Civil application No. 7050 of 2004 stands dismissed. ( R.M.BORDE, J. ) MTK/SA.565.09 6