IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 463 OF 1994 Ganpat Rama Gund. VERSUS Dattu Rama Gund. WITH CIVIL APPLICATION NO. 8535 OF 2017 IN SA/463/1994 Ganpat Rama Gund Lrs Baban Ganpat Gund VERSUS Dattu Rama Gund Lrs Namdeo And Others CORAM : R. M. JOSHI, J. DATE : 13th February, 2025 PER COURT :- 1. Unsuccessful plaintiff in Regular Civil Suit No. 4/1977 has filed this appeal under Section 100 of the Code of Civil Procedure taking exception to the dismissal of the suit and confirmation thereof by the First Appellate Court in Regular Civil Appeal No. 581/1987. 2. Parties are referred to as “Plaintiff” and “Defendant” for the sake of convenience. 3. Suit is filed for partition claiming that there was no partition in respect of the suit property. Though, partition was effected between plaintiff and defendant in respect of the other ancestral properties. In the written statement, defendant has denied the said contention and claimed that the suit property is already partitioned and the same has come 902-SA-463-1994.odt 1 of 6 2025:BHC-AUG:6418 exclusively to his share. 4. Plaintiff, in his evidence, in no uncertain terms, admitted that the previous partition between plaintiff and defendant including partition of the suit property. He, specifically claimed that he received half share towards western side, whereas, half share towards eastern side was allotted to the defendant. Trial Court on the basis of this admission held that there was already a partition between the parties and dismissed the suit. 5. First Appellate Court passed the order of dismissal of suit however recorded findings in paragraph 10 and 11 referred as under:- 10. It is pleaded by the plaintiff that suit land was kept intact and both are brother were jointly cultivating it even after the said partition of their ancestral property. However, there is no satisfactory evidence on record corroborating the said version of the plaintiff. The plaintiff has placed on record the certified copy of the 7X12 extract of the suit land bearing Gat No. 364 of the year 1975-76, Exh 5 to show that the plaintiff and the defendant are having 8 Annas share in it. It appears that the name of the plaintiff came to be recorded in the 7X12 extract of the suit land at the instance of the Collector who was moved by the plaintiff as a Military personnal to record his name on the 7X12 extract of the suit land. The documents placed at record Exh 28 support the said contention of the plaintiff. However, there is nothing on record to show that the defendant was heard by the Collector or any Revenue Officer while effecting entry of the name of the plaintiff 902-SA-463-1994.odt 2 of 6 in the record of the 7X12 extract of the suit land or on the Record of Rights of the suit land. There is nothing on record to show that the defendant or any body on his behalf was heard. On the contrary, it appears that the said entry in the Record of Rights of the suit land was effected by the Collector exparte. It is needless to say that there is no abstract principle that whereever will appear in the Record of Rights will be presumed to be correct when it is shown by evidence that the entries are not correct. It is the evidence of the plaintiff himself that partition of their ancestral property took place in the year 1952-53 and at that time all the property including the suit land was partitioned in the said partition. He was allotted ½ western portion of the suit land and the defendant was allotted ½ eastern portion of the suit land. Under such circumstances, the suit land will be actually divided into two parts allotting it to two Pot Hissaj showing the name of allottee on it. In the instant case, nothing to that effect is shown on 7X12 extract of the suit land. Under such circumstances, the entries of the name of the plaintiff and defendant on he suit land as mentioned on its 712 extract exh.5 doesnot inspire confidence about its correctness. It is the settled law as observed by Their Lordships of the Supreme Court of India in Sita Ram Bhau patil V/s Ramchandra Nago Patil (dead) By L.Rs. And another reported in A.I.R. 1977 SUPREME COURT 1712: “With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumped to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it also appears that the record of rights have reference to the mutation entry that was made by 902-SA-463-1994.odt 3 of 6 the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons. First the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings. Therefore, the respondent is right in contending that no presumption can validly arise from the record of rights” 11. In view of the above mentioned authority placed at service by the learned counsel for the respondent, I hold that the entry of the name of the plaintiff showing him to be 8 Annas owner of the suit land in the certified copy of the 7X12 extract Exh.5 does not appears to be correct in view of the evidence of the plaintiff himself as mentioned above. I therefore, disbelieve and discard the version of the plaintiff on the said point, which leads me to record my finding as to points No.1 and 2 in the negative. 6. This Court by order dated 06.12.1994 admitted the appeal and substantial question of law was framed on grounds 3 to 7, 8, 13 and 15 of the appeal memo. 7. This Court framed additional substantial question of law as under :- “As to whether the Trial Court and the First Appellate Court committed error in practically setting aside review entries in respect of the suit property without there being any challenge thereto in the suit. 8. Learned counsel for both sides were heard on the point of 902-SA-463-1994.odt 4 of 6 substantial question of law framed at the stage of admission as well as additional question framed. 9. Learned counsel for the plaintiff submits that the First Appellate Court has exceeded its jurisdiction by entering upon the deciding issue with regard to the correctness of the revenue entries, which is never challenged and otherwise not permissible for the Civil Court to go into. It is her submission that even defendant has never raised any issue about the correctness of those entries, however, without any pleading or without any case being made out to that effect, First Appellate Court has entered upon the said issue and recorded finding that the entry in the 7X12 extract indicating share of plaintiff and defendant to the extent of half share each of plaintiff and defendant is doubtful. According to him, in the circumstances, the said findings are not tenable. 10. Learned counsel for the defendant attempted to convince this Court from the said findings on the ground that it was open for the Trial Court and First Appellate Court to appreciate the evidence and record the findings of fact afresh. 11. Perusal of the pleadings indicate that defendant has never raised any dispute with regard to the revenue entries in respect of the 902-SA-463-1994.odt 5 of 6 suit property. Section 157 of the Maharashtra Land Revenue Code, 1966 provides for presumption of the correctness of the said entries unless it is shown in the evidence that there are no any order to enter upon such controversy, there has to be a pleading and challenge to the entries at first instance. Since, admittedly, no pleading is taken in written statement and has not challenged to the said entry, the findings recorded by the Trial Court as well as the First Appellate Court in this regard cannot sustain. As a result of this discussion, substantial question of law needs to be answered in affirmative. 12. As far as dismissal of the suit as well as appeal on merit of plaintiff’s case for suit for partition is concerned, from the admissions of plaintiff about previous partition and allotment of separate share to both parties, no interference is called therein. Hence, second appeal stands partly allowed. Though the final judgment and decree passed by the Trial Court and confirmed by the First Appellate Court of dismissal of suit is maintained. However, findings recorded in respect of the entries in 7X12 extract of the suit property are hereby set aside. 13. Appeal stands partly allowed in above terms. Pending Civil Application, if any, stands disposed of. (R. M. JOSHI, J.) bsj 902-SA-463-1994.odt 6 of 6