1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO: 315/2006 (Meerabai w/o Maroti Sawale vs. Sau.Prayagibai w/o Ramchandra Kasar and 6 others ) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. Shri V.K.Paliwal, Adv. for appellant CORAM: Smt. Vasanti A. Naik , J. DATED: 27th AUGUST, 2007. *** Heard counsel for the appellant. 2. The suit was filed by respondent no.1/ plaintiff for partition and separate possession of his share in the suit properties. The properties belonged to the father of the plaintiff and defendant by name, Ramchandra. Defendant no.6 denied the claim of the plaintiff It was the case of the defendant no.6 that her father Ramchandra had gifted some of the suit properties to her. She further pleaded that her father had bequeathed some of the suit properties in her favour by a will deed. It was also pleaded by defendant no.6 that property bearing Gut No.31 of Nimbalwadi admeasuring 6 H 20R was a tenanted property, of which Ramchandra was a tenant. It was pleaded by defendant no.6 that she inherited the tenancy rights in the property in view of the fact that she was cultivating the said property since 25 to 30 years. Defendant no.6, therefore, sought dismissal of the suit filed by the plaintiff. The Trial Court dismissed the suit of the plaintiff. The Court further held that the present appellant became 2 owner of the suit field bearing Gut No. 3 in view of the Gift deed executed by Ramchandra in favour of the present appellant. The Court held that the suit for partition was not maintainable as one the properties sold by the present appellant to a third party was not included in the suit property. 3. The Appellate Court, however, reversed the findings recorded by the trial Court so far as they related to the ownership of the appellant over the properties gifted by Ramchandra by Gift Deed. The first Appellate Court held that the Gift deed executed by Ramchandra was not admissible in evidence as it was not a registered document. The first Appellate Court held that the gift deed was compulsorily registrable under the provisions of the Registration Act and in the absence of registration the present appellant could not have claimed ownership of the certain properties on the basis of the gift deed. The first Appellate Court, however, maintained the findings so far as they related to the execution of the will by deceased Ramchandra and bequeathing of certain suit properties in favour of the present appellant. The Appellate Court, then, held that the present appellant could not have claimed to have inherited the tenancy rights in Gut No.31 as all the legal heirs of deceased Ramchandra would succeed to the the property Gut No.31. It is in this background that plea of tenancy raised on behalf of the present appellant was not referred to the Tenancy Court as the plea of tenancy was apparently an unsustainable plea and it is the settled position that each and every plea of tenancy need not be referred to the Tenancy Court for adjudication,. Also, the suit could not be dismissed solely on the ground that all the suit properties left behind by deceased Ramchandra were not the subject matter of the suit as it was the defendants no.6 /present appellant, who sold certain properties to the third party before the institution of the suit. In case those properties were not made 3 the subject matter of the suit, non-inclusion of those properties would not have prejudicially affected the case of the present appellant as the appellant has sold those properties and has received consideration in respect of the same. The aforesaid ground, therefore, cannot be made a ground for dismissal of the suit for non-inclusion of the properties in the partition suit. 4. None of the grounds raised in this Second Appeal give rise to substantial question of law. The Second Appeal is, therefore, dismissed with no order as to costs. JUDGE sahare