Papaya Odelu Bongani vs Raju Odelu Bongani & Ors.

Being aggrieved by the judgment and decree dated 20.03.2023 passed by the learned Civil Judge, Junior Division, Sironcha, in Regular Civil Suit No. 8 of 2018, and the judgment and order dated 24.12.2025 passed by the learned District and Additional Sessions Judge, Aheri, in Regular Civil Appeal No. 34 of 2023, the appellant, original Defendant No. 1, has filed the present Second Appeal.

The following substantial questions of law are proposed for consideration:

Respondent No. 1 instituted Regular Civil Suit No. 8 of 2018 seeking partition and separate possession of agricultural land bearing Survey/Gat No. 92, admeasuring 1.21 H.R., and other properties of his deceased father, Bongani Odelu Malaya. The appellant contended that an oral partition had taken place in the year 2000 and that the agricultural land had been allotted to him. The Trial Court held that the alleged oral partition and relinquishment of rights by the daughters were not proved and declared that the plaintiff and Defendant Nos. 1 to 5 were each entitled to a 1/6th share in the suit agricultural land. The Trial Court directed the Collector, Gadchiroli, to effect partition under Section 54 of the Code of Civil Procedure, 1908, but rejected the claim for permanent injunction. The First Appellate Court confirmed the decree and dismissed the appeal with costs of ₹25,000.

Learned counsel for the appellant submitted that the Courts below failed to properly appreciate the Will dated 22.12.2005. According to the appellant, the Will records that he had been living separately from the family for about twelve years and was residing in a house constructed on the agricultural land. It is contended that this recital, read with the evidence of D.W.2 regarding the alleged arrangement made by the deceased father, supports the appellant’s claim that the agricultural land had already been allotted to him.

The counsel further submitted that the Courts below placed undue reliance on the revenue entries, which do not, by themselves, establish title, and failed to consider the appellant’s contention that his sisters had received money, gold or other articles at the time of their marriages.

Per contra, learned counsel for the respondents submitted that the appellant has failed to prove the alleged oral partition of the year 2000. The appellant admitted in cross-examination that the suit property had not been partitioned till date and that the names of all legal heirs appeared in the revenue records. Further, D.W.2 was not present at the alleged partition, and his knowledge was based on what the deceased father had allegedly told him. Therefore, the oral evidence does not establish that the agricultural land was exclusively allotted to the appellant.

Learned counsel further submitted that the appellant’s separate residence and cultivation of the agricultural land do not, by themselves, establish partition or exclusive ownership. The permission granted by the father to construct a house on a portion of the land cannot be treated as an allotment of the entire agricultural land. Moreover, the Will dated 22.12.2005, when read as a whole, does not support the appellant’s claim, as it refers to the agricultural land in the father’s name and specifically deals with house property bearing CTS No. 125 without allotting Gat No. 92 to the appellant.

It is further submitted that the revenue entries were rightly considered by the Courts below as a relevant circumstance, though they do not independently confer title. The appellant has also failed to establish that Respondent Nos. 2 to 5 relinquished their rights merely by receiving money, gold or other articles at the time of their marriages, as no registered relinquishment deed or other legally acceptable evidence was produced. The objection regarding limitation is also untenable, since the alleged partition of 2000 was not proved, and Respondent No. 1 issued a legal notice dated 15.06.2018 before instituting the suit.

The counsel submitted that the allegation that the suit was filed due to an increase in property value following the highway development is unsupported by any material and does not defeat a legal heir’s lawful share. In the absence of proof of a valid partition or relinquishment, the Trial Court rightly declared a 1/6th share each in favour of the plaintiff and Defendant Nos. 1 to 5 and directed the Collector, Gadchiroli, to effect partition under Section 54 of the Code of Civil Procedure, 1908.

This Court has considered the submissions made on behalf by the learned counsel for both the parties and perused the record.

At the outset, it is necessary to distinguish between the fact of separate residence and the fact of partition of immovable property. A person may reside separately from other family members and cultivate a particular piece of land without necessarily becoming its exclusive owner. The appellant’s case is not limited to the assertion that he was living separately. He specifically contends that an oral partition took place in the year 2000 and that the entire agricultural land bearing Gat No. 92 was allotted to him. Therefore, the burden was upon him to establish the alleged partition and the specific allotment claimed by him.

The Will dated 22.12.2005 has to be read as a whole to ascertain the intention of the testator. In Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703, the Supreme Court explained that a Will must be construed by considering the document as a whole and by giving effect, as far as possible, to the intention expressed through its language. The same principle is reflected in Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287, concerning the construction of a Will.

Applying the above principle, the recital that the appellant had been separated from the family for about twelve years and was residing in a house constructed on the agricultural land is certainly a relevant circumstance. However, the said recital cannot be read in isolation or treated as conclusive proof that the entire agricultural land had been partitioned and allotted to the appellant. A statement regarding separate residence does not, by itself, establish the division of a specific property or the transfer of its exclusive ownership.

While reading the recitals of the Will as described in the record, there is no express bequest of Gat No. 92 in favour of the appellant. The Will specifically refers to the house property bearing CTS No. 125 and bequeaths that property to the plaintiff, whereas it does not contain a corresponding disposition allotting Gat No. 92 to the appellant. The absence of such a bequest cannot, by itself, conclusively determine the ownership of the agricultural land; nevertheless, it is a relevant circumstance while examining the appellant’s claim that his father had already allotted the entire land to him. The Will does not provide sufficient support for that specific claim.

The appellant’s contention that the Courts below failed to properly consider the Will cannot be accepted merely because it mentions his separate residence. The important question is whether the Will, read as a whole along with the other evidence, proves that the land had already been partitioned. The appellant has failed to establish that Gat No. 92 was allotted exclusively to him in the year 2000. The Will cannot be read as giving the appellant a right to the land when no such bequest is expressly mentioned. Similarly, the fact that the appellant was living separately does not, by itself, prove that the land had already been partitioned.

In Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119, the Supreme Court recognised that a genuine family arrangement may be oral and that such an arrangement is not invalid merely because it was not reduced to writing. However, the existence of the particular family arrangement relied upon must still be established. Thus, the appellant’s plea cannot be rejected merely because the alleged partition was oral; it fails because the evidence does not satisfactorily establish that the partition actually took place or that Gat No. 92 was allotted exclusively to him.

The evidence of D.W.2 does not cure this deficiency. As recorded by the Courts below, the witness was not present when the alleged partition took place, and his knowledge regarding the alleged allotment was based on what the deceased father had reportedly told him. His testimony, therefore, does not provide sufficient independent support for the appellant’s claim. Similarly, the appellant’s separate residence and cultivation of the land may indicate separate enjoyment of the property, but they do not conclusively establish the alleged partition.

The appellant’s own admission in cross-examination that the suit property had not been partitioned till date is also material. The Courts below considered this admission along with the revenue entries, the evidence of D.W.2 and the absence of reliable proof of the alleged allotment. It is correct that revenue entries do not, by themselves, confer title. However, in the present case, the findings of the Courts below are not based solely on those entries but on the cumulative effect of the evidence on record.

The appellant has also failed to establish that Respondent Nos. 2 to 5 relinquished their rights in the agricultural land merely because they allegedly received money, gold or other articles at the time of their marriages. No, legally acceptable evidence sufficient to establish the alleged relinquishment has been shown. In the absence of proof of the alleged partition or relinquishment, the appellant cannot claim exclusive ownership of the suit land on these grounds.

The principles laid down in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722, make it clear that the High Court, while exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908, cannot interfere with concurrent findings of fact merely because another view of the evidence is possible. Interference may be warranted where the findings are perverse, based on no evidence, or affected by an error of law.

In the present case, the appellant has not demonstrated that the First Appellate Court ignored any material provision of law or arrived at a conclusion unsupported by the evidence. Consequently, even after considering the Will dated 22.12.2005 as a whole, this Court finds that the recital regarding the appellant’s separate residence does not establish the alleged prior partition or the exclusive allotment of Gat No. 92 in his favour. Prima facie, on consideration of the facts and evidence available on record, no substantial question of law arises for consideration, and even if the questions proposed by the appellant are considered, they are answered against the appellant and in favour of the respondents. The concurrent findings of the Courts below are supported by the evidence on record, and no ground for interference under Section 100 of the Code of Civil Procedure, 1908, has been made out. Hence, the following order:-