ARUNABAI BHAUSAHEB MALI Vs. MANUBAI KASHINATH DHONGADE

JUDGEMENT

(1.) Present Appeal has been filed by original defendants challenging the concurrent judgment and decree passed in Regular Civil Suit No. 115/2004 by Second Joint Civil Judge, Junior Division, Kopargaon, Dist. Ahmednagar dated 16.12.2008 and the confirmation thereof by learned District Judge - 2, Kopargaon, Dist. Ahmednagar in Regular Civil Appeal No. 76/2011 dated 27.06.2016.

(2.) Present respondent No. 1 had filed the said suit for partition and separate possession. It will not be out of place to mention here that present respondent Nos. 2 and 3 had filed Regular Civil Suit No. 111/2004 before the same Court for permanent injunction against present appellant No. 1 and others. The said suit was decreed by the common judgment on the same day by the learned trial Court. However, it appears that nobody had challenged the said judgment and decree before the First Appellate Court, and therefore, Regular Civil Appeal No. 76/2011 was restricted to the challenge to judgment and decree passed in Regular Civil Suit No. 115/2004, and therefore, the subject matter of this Second Appeal is also limited to that extent.

(3.) The genology that has been given in the judgment of the trial Court was not disputed. Further, it was not in dispute that the suit properties mentioned in the said suit were owned initially by Barku Mali, who was the father of the plaintiff, defendant Nos. 8 and 9 and deceased husband of defendant No. 1. Barku expired on 16.11.1996. His wife Umabai had pre-deceased him on 15.11.1988. The present appellants/original defendants No. 1 to 5 had come with the case that there was a partition between Barku and his son Bhausaheb i.e. the predecessor of the present appellants. Half of the agricultural lands were taken by each of them and the said partition had taken place somewhere in 1981. The learned trial Court on the basis of the mutation entry exhibit - 37 had come to the conclusion that the said partition was certified by Tahsildar on 08.07.1981. None of them had ever taken any step to get the said mutation entry i.e. No. 773 cancelled, and therefore, these long standing entries prove the partition between Barku and his son Bhausaheb. Bhausaheb expired in 2002. As regards house property is concerned, it was held by the learned trial Court that it is still in the name of Barku and the defendants are residing in the same. There is no evidence of partition in respect of the house property, so also, there is no evidence in respect of the partition of then amount i.e. standing in the name of Barku with Ahmednagar District Central Co-operative Bank to the extent of Rs. 76770.16 ps. Under the same circumstance, the finding has been given that agricultural land admeasuring 3 hector 46 R from Survey No. 114/295/1, land admeasuring 0.05 from Survey No. 107 of 40, the amount in the Savings Account with Ahmednagar District Central Co-operative Bank is the Joint Hindu Family property of the plaintiffs and defendants No. 1 to 5. In fact, though there was evidence regarding partition, yet, the oral evidence especially the cross of defendant No. 1 showed that in spite of partition, Barku and Bhausaheb were residing jointly, that means, though mutation entry was taken, yet it was not actually implemented, and therefore, the said finding has been arrived at by the learned trial Court. This fact is based on the evidence, which has been appreciated by the learned trial Court as well as the learned First Appellate Court.