31-SA-787-2024+.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 787 OF 2024 Namdeo Ganpat Sonawane … Appellant vs. Dnyanoba Laxman Newaskar (Since deceased through legal heirs) Laxmibai Dnyanoba Newaskar and Ors. … Respondents WITH INTERIM APPLICATION NO.11216 OF 2024 IN SECOND APPEAL NO. 787 OF 2024 WITH SECOND APPEAL NO. 281 OF 2026 Namdeo Ganpat Sonawane … Appellant vs. Dnyanoba Laxman Newaskar (Since deceased through legal heirs) Laxmibai Dnyanoba Newaskar and Ors. … Respondents Mr. Anil Sakhare a/w. Mr. Atul Damle, Senior Advocates i/by Mr. Rohan Mirpury for Appellant. Mr. S. M. Gorwadkar, Senior Advocate a/w. Mr. Harshal N. Mule, Advocate i/by N. P. Mule for Respondents. CORAM : GAURI GODSE, J. DATED : 31st JULY 2026 ORDER: 1. These second appeals are arising out of two separate suits filed by both the parties for declaration of the extent of their Page no. 1 of 7 Harshada 31-SA-787-2024+.doc respective shares of ownership in the suit property. The appellant claims that he has a 90% share in the suit property, and the respondent claims that both parties have a 50% share each in the suit property. Second Appeal No.787 of 2024 arises from a suit filed by the respondent, and Second Appeal No. 281 of 2026 arises from a suit filed by the present appellant, who claims a 90% share. 2. The appellant filed suit for a declaration that the respondent is entitled to only 10% share in the suit property. The respondent filed the suit for partition and separate possession of his 50% share. The trial court, by separate judgments, dismissed the suit for a 50% share and directed that he would be entitled to separation of his 10% share. The appellant’s suit was decreed by giving a declaration that the appellant is the owner of 90% share and the respondent is the owner of 10% share. In the appellant’s suit, the trial court granted an injunction that the respondent should not obstruct the possession of the plaintiff’s share. The respondents’ separate appeals were decided by a common judgment. The First Appellate Court has dismissed the appellant's suit and decreed the respondents’ suit by directing partition for equal shares. Thus, the First Appellate Court held that both parties were entitled to a 50% share each in the suit property. Page no. 2 of 7 31-SA-787-2024+.doc 3. Learned senior counsel appearing for the appellant submits that though the sale deed did not refer to the extent of the shares owned by the parties, appellant had paid consideration to the extent of 90% and therefore he was entitled to a declaration of 90% share. He submits that the First Appellate Court has wrongly interpreted Section 45 of the Transfer of Property Act, 1882, and despite the evidence produced on record, has wrongly drawn an inference in view of the second part of Section 45 of the Transfer of Property Act, 1882. 4. He further submits that the appellant had produced substantial evidence, including documentary evidence in the form of an account notebook at Exhibit – 78, to show entries made in the notebook to support his contention that 90% of the consideration amount was paid by the appellant. He relies upon the findings recorded by the trial court accepting the entries in the notebook and the supporting oral evidence to record a finding that appellant had paid 90% of the share. He submits that oral evidence of appellant’s witness and the entries in the notebook produced at Exhibit - 78 were correctly interpreted by the trial court to record a finding of fact that the appellant had paid 90% of the consideration amount. 5. Learned senior counsel for the appellant submits that the First Page no. 3 of 7 31-SA-787-2024+.doc Appellate Court has erred in not appreciating the oral evidence which supports the entries in the notebook that the appellant had paid 90% of the consideration amount. He refers to the relevant findings recorded by both the courts to support his submissions that there is substantial evidence to prove payment of 90% share by the appellant. He therefore submits that the second appeal would raise substantial questions of law on misappreciation of the evidence on record and not correctly applying the provisions of Section 45 of the Transfer of Property Act, 1882 and Section 92 of the Evidence Act, 1872. He therefore submits that both the second appeals would require consideration on the aforesaid questions of law. 6. I have perused the judgments, the pleadings and the evidence. Execution of the sale deed in the joint name of the parties and the contents of the sale deed are not in dispute. Admittedly, the document records payment of consideration by the parties without any particulars regarding the extent of the parties’ shares. Though there is oral as well as documentary evidence produced on record by the appellant in support of the contention that he had paid 90% of the total consideration, a perusal of the plaint shows that there are no specific pleadings with reference to the manner in which 90% of the total consideration was paid by the appellant. Page no. 4 of 7 31-SA-787-2024+.doc 7. With reference to the appellant's pleadings and the documents on record, the First Appellate Court has referred to the relevant oral evidence. The First Appellate Court referred to the admissions given by the appellant and accepted that the recitals in the sale deed that the consideration amount was paid by both parties. The First Appellate Court has also referred to the oral as well as documentary evidence in detail and held that there was no documentary evidence to show how the amount of consideration was paid by the appellant to the extent of 90% of the consideration amount. The First Appellate Court, being the last fact-finding court, has reappreciated the evidence in detail. With reference to the findings recorded by the trial court, the oral as well as documentary evidence is dealt with by the First Appellate Court to conclude that the notebook at Exhibit - 78 referred to and relied upon by the trial court cannot be accepted as a reliable piece of evidence to conclude that the appellant had paid 90% of the total consideration amount. 8. In view of Section 45 of the Transfer of Property Act, 1882, the First Appellate Court has rightly held that, in the absence of any evidence as to the interest in the fund paid by the respective parties, it has to be presumed that both parties had equal interest in the property. In the absence of any particulars pleaded regarding Page no. 5 of 7 31-SA-787-2024+.doc payment of 90% of the consideration amount with supporting satisfactory evidence, the presumption under Section 45 of the Transfer of Property Act, 1882 is correctly applied by the First Appellate Court. In the absence of any particulars pleaded and proved, the findings recorded by the First Appellate Court on Section 45 of the Transfer of Property Act, 1882 would not warrant any interference in this second appeal. 9. The ground raised on the appreciation of the evidence with reference to the notebook at Exhibit - 78 is concerned, I do not find any illegality or perversity in the reasons recorded by the First Appellate Court. The entire documentary and oral evidence is reappreciated by the First Appellate Court to hold that the notebook at Exhibit 78 is not an account maintained in due course of business and its entries do not inspire any confidence. Nothing is shown in this second appeal as to how the entries would be relevant under Section 34 of the Evidence Act. The submissions made by relying upon Section 92 of the Evidence Act are irrelevant, as the sale deed in the joint name of the parties does not record the extent of the respective shares, and there is no valid documentary evidence produced to prove payment of 90% of the consideration by the appellant. The submissions regarding the oral evidence and the documentary evidence raised in this second appeal would warrant Page no. 6 of 7 31-SA-787-2024+.doc reappreciation of the evidence, which is not permissible under Section 100 of CPC. Hence, even the said ground would not warrant any interference as it does not raise any substantial question of law. 10. The second appeals do not raise any substantial question of law. Hence, the second appeals are dismissed. Interim applications are disposed of as infructuous. (GAURI GODSE, J.) Page no. 7 of 7 HARSHADA HANUMANT SAWANT Digitally signed by HARSHADA HANUMANT SAWANT Date: 2026.08.12 12:20:53 +0530