DADA Vs. BHAGAJI

JUDGEMENT

(1.) Present appeal has been filed by original plaintiff, challenging concurrent judgment and decree. He had filed Regular Civil Suit No. 145/2007 before Joint Civil Judge, Junior Division, Sillod, District Aurangabad for partition and separate possession. The said suit came to be dismissed on 26/8/2015. He had challenged the said decree in Regular Civil Appeal No.210/2015. The appeal was heard by learned District Judge-1, Aurangabad and it was dismissed on 4.12.2017. Hence, the present Second Appeal.

(2.) Heard learned Advocates appearing for the respective parties. In order to cut short it can be stated that both of them have made submissions in support of their respective contentions.

(3.) It has been vehemently submitted on behalf of the appellant that both the Courts below have not considered the evidence as well as law points properly. Both the Courts have mis-read the evidence by ignoring the provisions of The Hindu Succession Act, 1956. The family arrangement and the previous partition ought to have been properly considered in view of the principles laid down in the case of Anar Devi Vs. Parmeshwari Devi - 2006 AIR (SCW) 5063. Only one share-holder is not entitled to alienate the joint family property more than his share without there being partition by metes and bounds. Both the Courts below have wrongly considered that the 7/12 extracts show different entries and it is a proof for previous partition. In fact, the 7/12 extracts are prepared for physical purposes and it cannot take shape as proof for partition. Both the Courts below have also not considered the provisions of Ss. 8,9, and 31 of The Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter to be referred as the said Act). Both the Courts below committed an error in holding that the suit is barred by limitation to get declaration regarding the sale-deed as not binding on the share of the plaintiff.