BISMILLABE NASIBKHA PATHANversusSHAIKH BABAMIYA SHAIKH AHEMAD

2026:BHC-AUG:25346

                                                                      988-SA-103-2024.doc


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD
                              988 SECOND APPEAL NO. 103 OF 2024
                                     Bismillabe Nasibkha Pathan
                                              VERSUS
                                   Shaikh Babamiya Shaikh Ahemad
                                              ...
          Mr. Krushna Solanke for the Appellant.
          Mr. Sanjay D Hiwrekar for the Respondent.
                                              ...

                                             CORAM :     SIDDHESHWAR S. THOMBRE, J.
                                             DATE :      25 JUNE 2026
          P. C.:

          1.        Heard learned counsel for the parties.

          2.        By the present Appeal, the Appellant assails the order dated 16 th

          March 2022, passed by District Judge 1, Ambad in RCA No.144 of 2021 (old

          RCA No.166 of 2018) whereby the Appeal filed by Respondent came to be

          allowed and the order dated 7th August 2018, passed by Jt. CJJD,

          Ghansawangi in RCS No.6 of 2015 came to be quashed.

          3.        Mr. Solanke, learned counsel for the Appellant submits that the name

          of present Appellant-Original Defendant came to be recorded in the

          ownership column of 7/12 extract on the basis of a partition deed executed

          by the present Respondent. He submits that the Respondent-Original

          Plaintiff filed a suit for declaration and possession of land Gat No.49 to the

          extent of 40R out of 9 Hector 37R land situated at village Kandari Ambad,

          Tq. Ghansavangi, Dist. Jalna. In pursuance of suit summons the Appellant-

          Original Defendant appeared but failed to file written statement. Hence, the

          Shubham                                                               Page 1 of 4
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suit proceeded without written statement of the present Appellant. The suit

came to be dismissed but the learned Appellate Court allowed the Appeal

filed by the present Respondent-Original Plaintiff whereby suit was decreed

and the present Appellant was directed to handover the possession.

4.        The learned counsel for the Appellant further submits that the land in

question was allotted under sealing in favour of father of the Respondent-

Original Plaintiff. After the demise of father of Respondent-Original Plaintiff,

the property was partitioned amongst siblings and the land in question was

allotted to the present Appellant-Original Defendant. Pursuant to the said

partition deed, the present Appellant was put in possession of the suit

property and her name was also mutated in the 7/12 extract in the

ownership column. Based on the partition deed and mutation entry, the

learned Trial Court dismissed the Suit but the Appellate Court reversed the

order and decreed the Suit on the ground that the partition deed was an

unregistered document and the same was hit by Section 17 of the

Registration Act, 1908. the Appellate Court further recorded finding that

mutation entry is recorded only for fiscal purpose and it does not create any

title. Learned counsel further submits that the Appellant-Original Defendant

could not file written statement before the Trial Court hence to grant him an

opportunity to defend the matter on merits, the present matter needs to be

remanded to the Trial Court.

5.        Per contra, Mr. Hiwrekar, learned counsel for the Respondent submits

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that the present Appellant has no locus to challenge the impugned order

passed by the Appellate Court. The Appellant-Original Defendant is not in

any way related to the original land owner i.e. father of Respondent-Original

Plaintiff and the theory of partition deed putforth is completely bogus. He

further submits that the Appellate Court has rightly held that an

unregistered partition deed cannot be considered to mutate the name of

present Appellant in revenue record. Even if so considered for the sake of

argument, the revenue record does not create or take away title. Therefore,

he supports the order passed by learned first Appellate Court. In support of

his contention he relies upon the law laid down by this Court in Nalini Vs.

Girdhar Kashinath Patil & Ors. (MANU/MH/0669/2001) and the law laid

down by the Hon’ble Apex Court in Narayan Laxman Patil Vs. M/s. Gala

Construction Company Private Limited & Ors. (2015 AIR SCW 6333) by

contending that in the present Appeal no substantial questions of law are

involved.

6.        I have heard learned counsel for the parties and gone through the

substantial questions of law framed by the Appellant-Original Defendant. It

is clear that the case of Appellant-Original Defendant is based upon a

partition deed which was unregistered. The Appellant-Original Defendant

mutated her name in the 7/12 extract on the basis of said unregistered

partition deed. The first Appellate Court has rightly held that an

unregistered partition deed is hit by Section 17 of the Registration Act, 1908

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and the said deed cannot be utilized for mutation of her name in the

revenue record. Even the mutation entry does not confer or take away the

title of the Respondent-Original Plaintiff. Upon going through the record and

the submissions advanced, I am of the opinion that no substantial questions

of law is involved in the present Appeal and the Appellate Court has rightly

decided the matter. Therefore, I pass the following order:-

                                         ORDER

          i.     Second Appeal is dismissed.

          ii.    No order as to costs.

          iii.   Pending Civil Applications, if any, stand disposed of.



                                           [SIDDHESHWAR S. THOMBRE, J.]




Shubham                                                                   Page 4 of 4