( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 504 OF 1989 Madhukar Ganesh Jawale .. Appellant [Ori.Def. No.2] Versus 1) Manchak Limbaji Jawale .. Respondents 2) Ganesh Kishan Jawale [Ori. Plaintiff & Ori Def. No.1] Adv. Shri Amol Gandhi h/f. Sr. Adv. Shri P.V. Mandlik for the appellant. Adv. Shri B.N. Gadegaonkar h/f. Adv. Shri V.B. Ghatge for respondent No.1. CORAM : P.R. BORKAR,J. RESERVED ON : 19.06.2009 PRONOUNCED ON : 24.06.2009 J U D G M E N T :- 1. This is an appeal filed by original defendant No.2, who is aggrieved by the judgment and decree passed ( 2 ) by the Jt. Civil Judge, Junior Division, Parbhani, in Regular Civil Suit No.17 of 1983, decided on 22nd July, 1987, whereby the plaintiff/respondent No.1 was held entitled to recover possession of Survey No.41/2 (Block No. 191) to the extent of 1 H 21.41 R and mesne profit, which judgment and decree is further confirmed by the District Court, Parbhani, in Regular Civil Appeal No.163 of 1997, decided on 10th January, 1989. 2. It is now admitted position that Survey No. 41/2, Block No. 191 admeasuring 5 H 66 R land was originally belonging to respondent No.2-Ganesh. Respondent No.2-Ganesh sold 1 H 21.41 R land on the Eastern side portion of said land for Rs. 9000/- to respondent No.1 by sale-deed dated 3rd January, 1980. It is say of respondent No.1 that he was put into possession of the property, but subsequently he was dispossessed by respondent No.2 in or about 1982 and therefore the suit is filed for possession and mesne profit. Originally, respondent No.2, who was original defendant No.1 was the only defendant, present appellant is son of respondent No.2 and he was added as defendant ( 3 ) No.2 subsequently, pending the suit. 3. It is case of respondent No.2 that he was not owner and possessor of the suit land on the date of execution of sale-deed. He was in need of money at the time of sale-deed, but he denied that he executed the sale-deed. He also denied that possession was handed over to respondent No.1/plaintiff and there was subsequent dispossession. It is further stated that respondent No.2 was habituated to drink and other bad habits and he started disposing of property. Therefore, his mother demanded partition and in the partition which was effected four years before filing the written statement, between respondent No.2, his wife and son, who is present appellant and Eastern portion of Survey No.41 was allotted to the share of the appellant and Western ½ portion was allotted to respondent No.2 and Survey No.46 was allotted to his wife Rukminibai. According to him, respondent No.2 executed a gift deed in favour of his mother. In the circumstances, he had no saleable title, therefore the suit be dismissed. It is also stated in the written statement as alternate ( 4 ) plea that respondent No.2 had executed the sale-deed in favour of respondent No.1 under influence of alcohol showing excess area. 4. Present appellant who was added as defendant No.2 submitted his written statement and denied ownership and possession of respondent No.1. According to him respondent No.2 was not owner and possessor of the suit-land. He was not aware if respondent No.2 was in need of money. It is said that since respondent No.2 had no title, he could not transfer title and plaintiff/respondent No.1 was never put into possession of the property. 5. The Trial Court and the First Appellate Court framed various issues and points respectively and came to the conclusion that both the appellant and respondent No.2 have come with false defence. There was sale-deed. Respondent No.1 was dispossessed and he was entitled to get possession and accordingly decree for possession and mesne profit was passed. Same is confirmed by the District Court. It is this order, which is challenged ( 5 ) in this Second Appeal. 6. It may be noted that at the time of evidence, respondent No.2 (who was original defendant No.1 and father of appellant) did not enter into witness box. At the time of alleged sale-deed in 1980, the plaintiff was seven years of age. When the suit was filed, he was 10 years of age and his mother Rukminibai was shown as his guardian. When the appeal was filed in the District Court, the appellant was 13 years of age and he filed appeal through his mother Rukminibai. It is worth noting that respondent No.2 did not enter into witness box nor led any evidence. It is the mother of appellant and wife of respondent No.2 who entered into witness box and spoke about the partition that took place between herself, her husband, appellant – who is her son and her mother-in-law. Two witnesses were examined on the point of said partition. There is also mutation Exh.65 produced to prove the fact of partition and allotment of suit-land to the share of the appellant, but said evidence was disbelieved and it is held that there was no partition. Respondent No.2 did execute sale-deed in ( 6 ) favour of respondent No.1. There was no evidence regarding plea that respondent No.2 was under influence of liquor or sold excess area or that no sale-deed was executed by him. 7. The Second Appeal is admitted by order dated 15th December, 1989 on ground No.2 of the appeal memo and in view of observations made in para 18 of the Trial Court judgment. Ground No.2 is as follows:- “(2) The Court below totally erred in holding that the Defendant No.2 cannot approach the Hon’ble Court through his mother as Appellant and the sale-deed executed by Defendant No.1 in favour of Plaintiff is binding on Defendant Nos. 1 and 2.” . In para 18 the Appellate Court has observed as under :- “18. The learned Counsel Mr. Inamdar submitted at the Bar that father of minor has no legal right to sell the property of his minor son when there is a partition. However, the learned Counsel could not prove his proposition by showing law on the point. If at all minor Madhukar is aggrieved by the transaction done by his father, he can definitely approach the Court within three ( 7 ) years after attaining the majority but they cannot approach the Court when he is a minor. Under such circumstances I hold that there is no substance in the appeal. I further hold that the learned Judge rightly decreed the suit of the Plaintiff. Hence, I proceed to pass the following order:-” 8. There is no dispute that if really there was genuine partition and the suit property was allotted to the share of minor son, then father of minor would not be in a position to effect transfer without necessary permission of the District Court under the Guardian and Wards Act. After partition it would be property of minor. It is not necessary for this Court to enter into question whether appellant’s mother who is guardian could not have filed suit. In-fact, present appellant was added as defendant No.2 and his mother was shown as his guardian pending the suit and in that capacity the suit was resisted by the mother of the appellant for him. It is not that the minor has come to Court for setting aside the sale-deed. 9. So, main question that remains for our consideration is whether evidence regarding partition ( 8 ) led by present appellant was wrongly disbelieved by the Trial Court and the First Appellate Court and whether the conclusion drawn are perverse. It may be noted that this is Second Appeal and there are limitations on this Court while re-appreciating evidence in view of Section 100 of the C.P.C. 10. In order to prove the sale-deed respondent No.1 Manchak is examined at Exh.50. He examined witness Balasaheb at Exh.51 to prove sale-deed. Balasaheb was present when the transaction was settled. According to him one day prior to execution of the sale-deed witness Balasaheb, P.W.3 - Vishwambhar, respondent No.2-Ganesh, respondent No.1 – Manchak and Govindrao had come together. It was agreed that Eastern portion of the land to the extent of 3 acres was to be sold for Rs. 9000/- and a sale-deed was executed on next day. On that day respondent No.1 paid Rs. 4000/- to respondent No.2 Ganesh. No writing was made. At the time of execution of the sale-deed, this witness Balasaheb, respondent No1 Manchak, respondent No.2 – Ganesh, Govind and P.W.3 Vishwambhar were present. Remaining ( 9 ) consideration of Rs.5000/- was paid to respondent No.2. Respondent No.2 told contents of draft of sale-deed. Ganesh signed the document. Balasaheb and Govind attested the sale-deed. This witness proved signatures and thus sale-deed Exh. 52 was duly proved. It is registered document, which is at Exh.52. P.W.3 Vishwambhar who was present at the time of settlement of transaction and sale-deed is examined at Exh.53 and he also spoke about execution of the documents and payment of consideration. 11. The appellant’s mother Rukminibai is examined at Exh.57. According to her, her husband was addicted to liquor and other vices. So mother of respondent No.2 and her mother-in-law told respondent No.2 to effect partition of the properties. Respondent No.2 was transferring land for his bad vices and so partition was necessary. According to Rukminibai, the partition had taken place at Asola 9-10 years before her statement on 02.07.1987. According to her, partition of only landed properties had taken place. Partition of house and other movable properties had not taken place. ( 10 ) Witness of appellant D.W.2 Baban Bapurao and D.W.3- Kishanrao examined at Exh.58 and 59 have stated that even at the time of their deposition, respondent and members of his family were residing jointly. Witness Rukminibai also admitted that respondent No.2 used to visit her house and she used to serve him meals. It is also noted that respondent No.2 has not entered into witness box, though he was daily present in the Court premises. This observation in para 9 of the Trial Court judgment together with fact that the appellant, respondent No.2 and appellant’s mother were residing jointly even at the time of deposition raise questions whether is there any collusion between respondent No.2, his son – appellant and wife Rukminibai and whether really they are telling the truth. 12. At Exh.65 there is mutation No.1192 which states that on the basis of a partition deed that was produced by the applicant Ganesh (respondent No.2), entry regarding partition of Survey No. 41/2 and 46/3 was recorded. It is mentioned that mutation was sanctioned on 15.03.1979. It is stated that out of ( 11 ) Survey No.41/2 at Asola one half portion was given by respondent No.2 Ganesh to his son Madhukar, who is appellant. Entire Survey No.46/3 was allotted to the share of witness Rukminibai – mother of appellant. It is worth noting that as per this mutation entry, partition deed was produced and on the basis of same, the entry was taken. Entry is disbelieved by the Trial Court so also the First Appellate Court. Oral evidence is contrary to what is mentioned in the mutation and it is perhaps a fabricated document. Here we may also note other two mutations produced on record. At Exh.63 there is mutation entry No.1324, which shows that respondent No.2-Ganesh executed a sale-deed in favour of Wamanrao Jawale. He sold Survey No.41/1A, which is block No. 191, admeasuring 2 H 93 R to the extent 1 H 93 R. The sale-deed was executed on 10.12.1979. Notices of mutation were served. There was no objection and therefore the mutation entry was confirmed. At Exh.66 there is mutation No.1248 and by said mutation respondent No.2 Ganesh gifted 1/2 Western portion out of Survey No.41/2, (block No. 191) to his mother Sheshabai @ Sarubai by a gift deed. The gift deed was dated ( 12 ) 07.12.1979. The mutation was sanctioned on 08.01.1980. It may be noted that so far as mutation entry No.65 is concerned, it is of doubtful nature in as much as it does not bear designation of the officer who has sanctioned the entry. We find designations of Officers sanctioning mutations at Exh.63 and 66. There is no date of application on the basis of which mutation Exh. 65 was recorded. As per mutation Exh.65, partition had taken place prior to 15.03.1979. Exact date of deed of partition is not mentioned. 13. Mutation of Exh.63 shows that after said partition respondent No.1 Ganesh sold 1 H 93 R land out of Survey No. 41/1, which was block No.191 to Wamanrao Jawale for Rs. 4000/- on 10.12.1979 and nobody has taken objection to this. Even mother of the appellant in her deposition admitted the sale of property to Wamanrao. If there was partition and property of the share of respondent No.2 Ganesh was gifted by him to his mother on 07.12.1979, as can be seen from mutation Exh.66, where was the property with respondent No.2 Ganesh to sell it to Wamanrao Jawale on 10.12.1979. ( 13 ) 14. There is difference as to how allotment of properties in the partition has taken place. As per oral evidence led by the appellant, partition was oral and no document was prepared. As per Rukminibai, she herself, her husband (respondent No.2), son – Madhukar (appellant), her brother Vithal, Baban Kasar and Trimbakrao Jawale were present at the time of partition. According to her entire land “Bhangyache” was allotted to her share. One half portion from other land called “Patti” was alloted to appellant Madhukar and remaining Western portion out of said land “Patti” was allotted to her husband. In other words, as per evidence of Rukminibai, no share whatsoever was allotted to mother of respondent No.2-Ganesh. She could not tell why no share was given to mother of respondent No.2 in the partition. It was also not explained why excess land was alloted to Rukminibai. On the other hand D.W.2 Baban stated that in the partition, the land known as “Bhangyache” was allotted to the share of D.W.1 Rukminibai, Eastern portition of land known as “Patti” was allotted to appellant Madhukar and Western portion ( 14 ) of part was alloted to Sheshabai, who is mother of respondent No.2. Thus, according to D.W.2, no share was allotted to respondent No.2 Ganesh in the partition. So, this theory of partition is essentially different from partition described by D.W.1-Rukminibai. D.W.2 Baban could not tell the day, date, month, year of the partition. Further, he said that 6 Acres land allotted to share of mother of respondent No.2 and one acre and some gunthas was allotted to Ganesh from Northern side of land “Patti”. Thus, in cross-examination he changed his earlier statement. In-fact, it is case of D.W.1- Rukminibai that her husband (respondent No.2) gifted his share from land “Patti” to his mother by executing a gift deed. So, evidence of D.W.2 Baban falsifies even the gift deed, as respondent No.2 was owner of only 1 acre and some gunthas of land “Patti” and remaining was already allotted to share of his mother. 15. As stated earlier mutation entry at Exh.65 clearly indicated that there was deed of partition, but according to the witnesses examined by the appellant partition was oral. So, that falsifies and raises ( 15 ) serious question about genuineness and truth of contents of mutation entry No.66. The mutation is also silent regarding date of submission of application, date of partition. No specific share was shown which was allotted to respondent No.2 Ganesh or his mother or to share of appellant Madhukar. 16. Considering totality of the circumstances both Trial Court and the First Appellate Court have disbelieved case of the appellant and it cannot be said that said view is unreasonable or perverse so as to warrant interference in the second appeal. The partition is necessarily a question of fact. The Trial Court in para 15 has observed that respondent No.2 Ganesh prepared documents in collusion of his relatives, friends and concerned Talathi and they cannot be relied upon. It is also noted that in the written statement the date and month of partition or name of the persons who were present at the time of partition are not stated. 17. Having given due consideration to all aspects ( 16 ) and the arguments advanced before this Court, in my considered opinion, this appeal has no merit. There is concurrent view taken by the Trial Court and the First Appellate Court, which is reasonable and based on evidence on record. Hence, this Second Appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa504.89