NAMDEO GANPAT SONAWANEversusDNYANOBA LAXMAN NEWASKAR DECEASED

                                                            31-SA-787-2024+.doc




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Harshada
                            CIVIL APPELLATE JURISDICTION
                           SECOND APPEAL NO. 787 OF 2024
           Namdeo Ganpat Sonawane                           … Appellant
                     vs.
           Dnyanoba   Laxman     Newaskar  (Since … Respondents
           deceased through legal heirs) Laxmibai
           Dnyanoba Newaskar and Ors.
                                     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 … Respondents
           deceased through legal heirs) Laxmibai
           Dnyanoba Newaskar and Ors.

           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

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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.


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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


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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.


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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
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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
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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.)

           Digitally signed
           by HARSHADA
HARSHADA   HANUMANT
HANUMANT   SAWANT
SAWANT     Date:
           2026.08.12
           12:20:53 +0530




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