Bombay High Court
Kondabai Bapurao Deshmukh AND OTHERSversusMandodari Punjaram Deshmukh AND OTHERS
- Disposal
- APPLICATION ALLOWED
Holding
The review application is dismissed as no fresh ground for review is made out, though condonation of delay is allowed.
Summary
The applicant filed a civil application seeking condonation of a 36‑day delay in filing a review petition, and the court allowed the condonation despite the respondents not appearing. The review petition raised several issues: that the partition suit filed by the respondent was barred by limitation due to an alleged ouster arising from a 1989 consolidation scheme, that the defendant's title derived from inheritance rather than leasehold, and that adverse possession was not established. The court held that the mere entry of the defendant’s name in revenue records does not constitute ouster or adverse possession, and that no allegation of ouster or inheritance was pleaded in the original suit. It further observed that the applicant introduced new facts for the first time in the review, which is impermissible. Consequently, the review application was rejected, while the condonation of delay was granted.
Issues considered
- Whether a delay of 36 days in filing a review application can be condoned.
- Whether the partition suit is barred by limitation on the ground of ouster arising from the 1989 consolidation scheme.
- Whether the defendant's title is by inheritance or leasehold and how that affects the limitation period.
- Whether new grounds can be raised for the first time in a review petition.
Subjects
- partition suit
- limitation
- adverse possession
- consolidation scheme
- review petition
- condonation of delay
- inheritance
- leasehold
- civil procedure
Judgment
2026:BHC-AUG:43390
IN THE JUDICATURE OF HIGH COURT AT BOMBAY
BENCH AT AURANGABAD
910 CIVIL APPLICATION NO. 11756 OF 2025
IN RAST/15211/2025
WITH
REVIEW APPLICATION (CIVIL) (STAMP) NO. 15211 OF 2025
Kondabai Bapurao Deshmukh And Others
VERSUS
Mandodari Punjaram Deshmukh And Others
...
Advocate for Applicant : Mr. Milind Madhu Joshi
None Present for Respondent.
…
CORAM : ROHIT W. JOSHI, J.
Dated : September 23, 2026
ORAL ORDER :
CIVIL APPLICATION NO. 11756 OF 2025 :
1. There is a delay of 36 days in filing the application for review.
Learned Advocate for the applicant states that the respondents are
served by private notice as also through Speed Post. However, there is
no appearance on behalf of the respondents.
2. For the reasons mentioned in the application, the application for
condonation of delay is allowed.
REVIEW APPLICATION (CIVIL) (STAMP) NO. 15211 OF 2025 :
3. Learned Advocate for the applicant states that the execution
proceeding is posted on 24/09/2026 and makes a request that the
application for review be taken up for consideration.
Page 1 of 5
910 CA 11756-2025
4. Learned Advocate for the applicant submits that the suit for
partition filed by respondent No.1 was hopelessly barred by
limitation. In support of his contention, he draws attention to the
observations made by the learned Trial Court in paragraph 27 of the
judgment, which refer to implementation of the consolidation
scheme.
5. The learned Advocate submits that it is a matter of record that
the consolidation scheme was implemented in the year 1989 and
that the suit properties bearing Gut Nos.265 and 268 were recorded
in the name of defendant No.1 alone. According to the learned
Advocate for the applicant, this would amount to ouster of the
plaintiff and, as such, would be the starting point of limitation.
6. Perusal of the judgment dated 28/02/2025 passed by this Court
dismissing Second Appeal No.53 of 2024 indicates that the
contention with respect to the suit for partition being barred by
limitation was rejected on the ground that, in the written statement,
except for the statement that defendant No.1 had perfected his title
by adverse possession, there were no averments regarding the mode
and manner in which the possession of defendant No.1 had become
adverse or hostile to the original plaintiff.
Page 2 of 5
910 CA 11756-2025
7. The learned Advocate for the applicant has not pointed out any
averment from the written statement regarding ouster of the
plaintiff. As regards the contention with respect to the consolidation
proceedings, there is no material on record to infer knowledge of the
plaintiff with respect to the said proceedings. It is well settled that
the mere fact of the name of defendant being recorded in the
revenue records does not amount to ouster or possession of the
defendant becoming adverse to that of the plaintiff.
8. The other contention raised by the learned Advocate for the
applicant is that the suit properties were not inherited by defendant
No.1, as held by both the learned Courts. The contention is that the
suit property was held by the grandfather of defendant No.1,
namely, Jija, as a Government lessee and that the name of defendant
No.1 was recorded in the revenue records as a lessee since the
grandfather had transferred the leasehold rights in favour of
defendant No.1 during his lifetime and during the lifetime of
Sahebrao (father of the plaintiff and grandfather of defendant No.1).
9. In support of his contention, the learned Advocate draws
attention to the observations made by the learned Trial Court in
paragraph 29 of the judgment, which refers to Khasra Pahani extract
at Exhibit 72, according to which Survey No.66 was recorded in the
name of Trimbak, father of defendant No.1, as pattadar (lessee) by
Page 3 of 5
910 CA 11756-2025
way of partition. Reference is also made to Exhibit 73, which is
another Khasra Pahani extract, which reveals the name of Trimbak,
father of defendant No.1, as pattadar (lessee) and the name of Jija,
grandfather of the plaintiff, as pattadar of the lessee.
10. The learned Advocate contends that, in view of the above, the
learned Courts ought to have held that the properties were received
by defendant No.1 by way of inheritance, since Jija had transferred
the property to the father of defendant No.1 during his lifetime and
during the lifetime of Sahebrao, father of the plaintiff and
grandfather of defendant No.1.
11. The said contention cannot be accepted. The contention is
raised for the first time in review. Perusal of paragraph 6 of the
judgment of the learned First Appellate Court would reveal that it
was the case of defendant No.1 that the suit properties were
inherited by Trimbak from distant relatives and not from his father or
grandfather.
12. It also appears from a reading of the judgments of all three
Courts that such a contention was never raised. This is also not the
case set up by the review petitioners in their written statement. It is
well settled that evidence without pleadings of no avail.
Page 4 of 5
910 CA 11756-2025
13. A new case cannot be invented or made out for the first time in
an application for review, particularly when it is contrary to the
express case set up and pursued till the stage of second appeal.
14. In view of the above, no case for review of the judgment dated
28/02/2025 passed in Second Appeal No.53 of 2024 is made out.
The application for review is rejected.
( ROHIT W. JOSHI, J. )
vj gawade/-.
Page 5 of 5
Checking your session…