SMT. TANHUBAI GANPAT UNDRE (SINCE DECEASED) SHRI. PANDIT GANPAT UNDRE AND OTHERSversusSHRI. EKNATH SADU UNDRE AND OTHERS

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              varsha          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                        SECOND APPEAL NO. 779 OF 2012

                       Smt. Tanhubai Ganpat Undre(since deceased) … Appellants
                       Shri Pandit Ganpat Undre and Others
                                  vs.
                       Shri Eknath Sadu Undre and Others                 … Respondents

                       Mr. Ashutosh Kulkarni i/b. Mr. Vaibhav Gaikwad for Appellants

                                                       CORAM : GAURI GODSE, J.
                                                       DATED : 6th FEBRUARY 2026
                       ORDER:

                       1.    This second appeal is filed by defendant nos. 2 to 17, 48 to

                       54, 62 to 65, 75, and 76 to challenge the concurrent judgments and
        Digitally
        signed by
        VARSHA
VARSHA VIJAY
VIJAY   RAJGURU
                       decrees granting partition and separate possession. Learned
RAJGURU Date:
        2026.02.24
        12:40:26
        +0530
                       counsel for the appellants submits that the joint family properties

                       were described in Schedule I and Schedule II of the plaint. However,

                       the plaintiff restricted his prayer for partition and separate

                       possession only in respect of the properties described in Schedule I.

                       Some of the defendants who supported the prayer for partition and

                       separate possession filed a counterclaim and prayed for partition,

                       also in respect of the properties described in serial nos. 1 to 9 of

                       Schedule II, which consisted of a total of 36 properties. So far as the

                       present appellants are concerned, they opposed the prayer for

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partition and separate possession on the ground that the partition

had already taken place in 1965. The trial court decreed the suit as

well as the counterclaim and directed partition in respect of all the

joint family properties described in Schedule I and Schedule II of the

plaint. In an appeal preferred by the present appellants, the trial

court’s decree is confirmed.

2.    Learned counsel for the appellants raises objections to the

decree on three grounds. Firstly, he submits that the prayer for

partial partition, as prayed for in the plaint and the counterclaim,

would not be maintainable. Secondly, the first appellate court

partially allowed the appeal and remanded the matter to the trial

court, permitting the parties to lead additional evidence based on

the additional documents produced before the appellate court;

however, the first appellate court allowed the review application filed

by the plaintiff and the supporting defendants and modified the order

by setting aside the remand order and only maintained the order

permitting production of additional documents in the form of certified

copies of the revenue record. Thirdly, it was not permissible in law

for the first appellate court to reverse the order of remand in a

review application.

3.    Learned counsel for the appellants submits that, though the

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appellants were permitted to produce the certified copies by way of

additional evidence, they were deprived of their right to lead

evidence to support the documents, which in turn would support

their contention that the suit properties were already partitioned in

1965. He therefore submits that the impugned judgments and

decrees would require consideration as it raises substantial

questions of law on the ground that the prayer for partial partition is

not permissible. The appellate court ought to have permitted the

appellants to lead additional evidence to support the documents

produced on record. He therefore submits that the second appeal

would require consideration as the aforesaid objections raise

substantial questions of law.

4.    I have carefully perused the papers of the second appeal. The

plaintiff has described all the joint family properties in Schedule I

and Schedule II. The parties consist of the respective branches of

the four sons of the original holder, Kushaba Undre. The genealogy

annexed to the plaint, and the description of the suit properties as

described in Schedules I and II pleaded as belonging to the

ancestral joint family property, is not disputed. All the parties have

accepted that the suit properties are joint family properties, and

none of them has raised any objections to the genealogy annexed


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to the plaint.

5.     The appellants raised an objection to the grant of partition on

the ground that the suit properties were partitioned in 1965. On

examination of the pleadings and evidence on record, both courts

have concurrently held that the appellants failed to prove that a

partition took place in 1965. The grounds raised regarding the

maintainability of the suit for partial partition do not require

consideration by this court, as the plaint describes all the joint family

properties. No objection is raised by any of the defendants that any

of the joint family property is not added to the suit. The plaintiff

restricted his prayer for partition on the ground that some properties

did not require partition, as the parties held them in separate

possession.

6.     Some of the defendants who supported the claim of partition

added the prayer in the counterclaim that some of the properties in

Schedule II needed to be partitioned. However, after examining the

evidence on record, the trial court recorded the findings on the fact

that the prior partition was not proved by the parties. Since there

was no dispute on the nature of the properties and the relationship

between the parties, the trial court rightly decreed the suit and the

counterclaim by directing partition in respect of all the suit

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properties.

7.    The trial court also discussed and examined the theory of

family arrangement amounting to prior partition, based on the

evidence produced on record. The first appellate court had initially

remanded the matter to the trial court, permitting appellants to

produce certified copies of Mutation Entry Nos. 2033 and 7/12

extracts and permitting defendants nos. 2 to 17 and other

defendants who had filed the counterclaim to lead evidence in

rebuttal or call the plaintiff for cross-examination. This Order of

remand was passed by the first appellate court while allowing the

present appellants’ application under Order XLI Rule 27 of the CPC.

It is pertinent to note that the present appellants were not permitted

to adduce any further evidence. The appellants accepted this order

passed on their application. Hence, there is no merit in the objection

raised in the second appeal that the first appellate court ought to

have permitted the appellants to lead any further evidence to

support the documents produced by them.

8.    The original plaintiff and defendants nos. 2 to 17 filed a review

application, stating that the appellants were permitted to produce

only certified copies of the revenue record as additional evidence;

hence, it was not necessary to remand the matter for them to

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adduce any oral evidence or cross-examine the plaintiff. Hence,

they prayed to review the remand order. The first appellate court

held that, as the plaintiff and defendant nos. 2 to 17 had no

objection to read the additional documents in evidence and they did

not want to adduce any evidence in rebuttal, there was no need to

remand. Hence, the first appellate court rightly reviewed the order,

recalled the remand order, and considered the documents produced

as additional evidence. The order to review was accepted by the

parties, and the parties proceeded with the hearing of the appeal on

the merits. The order passed in the review application was not

challenged by the appellants, and they participated in the appeal on

the merits in the district court by relying on documents they

produced as additional evidence.

9.    The first appellate court has considered the certified copies of

the mutation entry and the 7/12 extract produced on record by way

of additional evidence. After examining the additional documents

read in evidence, the first appellate court confirmed the trial court’s

findings that the prior partition in 1965 was not proved, and none of

the documents supported the theory of prior partition. Hence, the

first appellate court confirmed the decree for partition and separate

possession in respect of all the suit properties.


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10.   A perusal of the reasons recorded by the trial court and the

first appellate court would reveal that both courts considered all the

documentary and oral evidence on record, including the contentions

regarding the independent occupation of some of the properties.

The pleadings and evidence on record are correctly appreciated by

both the courts. So far as the objection of maintainability of the suit

on the ground of partial partition is concerned, since all the

properties were described in the suit, the trial court has rightly

considered the prayer for partition and separate possession as

prayed in the suit, as well as counterclaim and directed partition of

all the suit properties. In view of the findings recorded disbelieving

the theory of prior partition, the trial court rightly passed a decree for

partition and separate possession of all the suit properties.

11.   There is no dispute that all the suit properties are ancestral

joint family properties; thus, based on the admitted genealogy on

record, the trial court has directed the division of all the properties

by granting a ¼th share to each branch of the four sons of the

original holder, Kushaba Undre. Hence, the division of the property

by granting a 1/4th share to each branch is also in accordance with

the law. No prejudice is caused to any of the parties by the decree

passed for partition and separate possession, granting an equal


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share to each branch of the four sons of the original holder.

12.   In view of the concurrent findings of the facts recorded by

both the courts, the theory of prior partition is not proved. Thus, all

the suit properties, i.e. the ancestral joint family properties, were

required to be divided equally amongst the parties. Hence, the

concurrent findings would not require any interference by this court

in the second appeal. None of the grounds raised on behalf of the

appellants would require any consideration, as they do not raise a

substantial question of law.

13.   The second appeal is therefore dismissed.

14.   In view of the dismissal of the second appeal, all pending

interim applications and civil applications are disposed of as

infructuous.

15.   At this stage, learned counsel for the appellants seeks an

extension of the interim relief granted in the second appeal. Since

the decree is for partition and separate possession, the execution

proceedings shall proceed; however, till expiry of a period of eight

weeks from the date of uploading this order on the website, there

will be a stay on the actual handing over of physical possession.



                                                 (GAURI GODSE, J.)
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