Jaydev Pandhari Malik and Others vs Shri Datta Antu Porob Gaunkar and Others

F.M. Reis, J.—Heard Shri J.P. Mulgaonkar, learned Counsel appearing for the appellants and Shri A. Kansar, learned Counsel appearing for the respondents. The above appeal challenges the judgment and decree passed by the learned Additional District Judge, North Goa at Panaji in Regular Civil Appeal No. 45/1989 dated 28/11/2007 whereby the suit filed by the respondents was partly decreed and the property bearing old cadastral no.33 corresponding to new survey no.94/1 and 2 and 96/4 and 5 was allowed to be partitioned in equal shares among the respondent no.1 and the appellants herein.

Shri Mulgaonkar, learned Counsel appearing for the appellants has essentially assailed the impugned judgment on the ground that though it is not in dispute that the appellants are entitled to half share of the property and the remaining half share belongs to the respondents, nevertheless, the properties were being enjoyed separately by the respective parties since the time of their purchase. The learned Counsel further pointed out that as there was no Deed of partition nor any partition effected establishing the division of the property by metes and bounds, the question of directing that the suit property be partitioned as per the said shares would not arise. The learned Counsel further pointed out that the Courts below have erroneously appreciated the evidence on record and have come to an erroneous conclusion that the properties have not yet been partitioned.

On the other hand, Shri A. Kansar, learned Counsel appearing for the respondents has submitted that there is no dispute with regard to the shares of the parties as submitted by Shri Mulgaonkar, the learned Counsel appearing for the appellants, and further did not dispute the fact that part of the property is in his possession, but however, according to him there was no partition of the property by metes and bounds by executing any Deed or legal proceedings and, as such, the property is considered to be in co-ownership. The learned Counsel further submitted that such division of the property between the parties was only for the purpose of enjoyment of the properties in accordance with their respective claim and, as such, the learned Judge was justified to direct that the property be partitioned in accordance with their respective shares.

After considering the submissions of the learned Counsel and on perusal of the records, I find that the lower Appellate Court has rightly appreciated the evidence on record and has directed that the suit property is to be partitioned in accordance with the respective shares of the parties. Considering that there is no partition effected recognized by law, I find that there is no substantial question of law which arises in the present appeal to be adjudicated u/s 100 of the Civil Procedure Code. Admittedly, there was no Deed of partition executed between the parties and as the property is an immovable property any such division is to be effected either by registered Deed or by any judicial proceedings. As no such exercise has been carried out by the parties, the lower Appellate Court was justified to come to the conclusion that the suit property is to be divided by metes and bounds in accordance with their respective shares.

Taking note that there is no dispute that the parties were enjoying the property separately, I find that it would be appropriate that the Commissioner or any other Authority appointed to divide the property by metes and bounds in accordance with the shares shall take into account such enjoyment and consider whether such areas enjoyed by the respective parties can be allotted to them respectively on account of their respective shares at the time of such division. Both the learned Counsel in fact pointed out that such enjoyment by the parties should be considered while dividing the property by metes and bounds. Subject to the above, I find no merit in the above appeal and, hence, the Second Appeal stands dismissed.