GAJARA VISHNU GOSAVI versus PRAKASH NANASAHED KAMBLE & ORS.

Citation: [2009] 14 S.C.R. 569 · Decided: 16-09-2009 · Supreme Court of India · Bench: DALVEER BHANDARI, B.S. CHAUHAN · Disposal: Dismissed

Judgment (excerpt)

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[2009] 14 (ADDL.) S.C.R. 569 
GAJARA VISHNU GOSAVI 
A 
v. 
PRAKASH NANASAHED KAMBLE & ORS. 
(Civil Appeal No. 1292-1293 of 2002) 
SEPTEMBER 16, 2009 
B 
[DALVEER BHANDARI AND DR. B.S. CHAUHAN, JJ.] 
TRANSFER OF PROPERTY: 
Property in joint and common possession - Partition not C, 
effected - A part of the property sold by heir of one or the co-
parceners - Purchaser filing suit for possession - Suit 
dismissed - Held: In a given case an undivided share of a 
co-parcener can be a subject matter of sale/transfer, but 
possession cannot be handed over to the vendee unless the 
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property is partitioned by metes and bounds, either by the 
decree of a court in a partition suit, or by settlement among 
the co-sharers - In the instant case, all the three courts below 
have recorded the finding of fact that there had been no 
partition of the suit property - Such concurrent finding does 
Ei 
not require interference as there is nothing on record to show 
that it was perverse, being based on no evidence or contrary 
to the evidence on record. 
Kartar Singh vs. Harjinder Singh AIR 1990 SC 854; 
Ramdas vs. Sitabai & Ors. JT 2009 (8) SC 224; M. V. S. 
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Manikayala Rao vs. M. Narasimhaswami & Ors. AIR 1966 SC 
470 and Sidheshwar Mukherjee vs. Bhubneshwar Prasad 
Narain Singh & Ors. AIR 1953 SC 487, referred to 
Case Law Reference: 
AIR 1990 SC 854 
JT 2009 (8) SC 224 
referred to 
referred to 
569 
para 9 
para 9 
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B 
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570 
SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. 
AIR 1966 SC 470 
AIR 1953 SC 487 
referred to 
referred to 
para 9 
para 9 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 
1292-1293 of 2002. 
From the Judgment & Order dated 21.3.2000 of the High 
Court of Judicature at Bombay in Second Appeal No. 183 of 
2000. 
WITH 
C.A. No. 1293 of 2002. 
Vijay Kumar, Vishwajit Singh for the Appellant. 
The following Order of the Court was delivered 
ORDER 
1. These appeals have been filed against the judgment 
and order of the Bombay Hi~h Court dated 21.3.2000 by which 
Second Appeal No.183 of 2000 filed by the appellant has been 
dismissed and judgments and orders of the Trial Court as well 
as the First Appellate Court have been affirmed. 
2. The facts and circumstances giving rise to this case are 
that appellant filed Civil Suit No.6/87 seeking declaration that 
she was owner of the western half part of the suit property, i.e. 
city Survey no.83 and in actual physical possession thereof; and 
further for restraining the defendants/respondents to cause any 
obstruction to her possession over the said property and also 
for possession of the other part of the property. 
3. The said relief was claimed on the basis that the entire 
CTS no.83 was originally owned by Krishna Kamble and Maruti 
Kamble. Both brothers had been living separately and were 
using their respective half part in the suit premises. Krishna 
Kamble was in possession of eastern half part of the said 
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GAJARA VISHNU GOSAVI v. PRAKASH NANASAHED 
571 
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KAMBLE & ORS. 
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property. Krishna Kamble died leaving only one son Shripati 
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who died leaving only heir i.e. daughter Housabai. Maruti had 
two sons, namely, Genu and Dadu. Dadu died issueless. Genu 
had three sons, namely Ganapati, Nana and Shankar. Ganapati 
died issueless. Shri Prakash Nanasaheb Kamble, defendant 
no.1 is the son of Nana and defendant no.2 Manik Shankar 
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Kamble is the son of Shankar. AppellanVplaintiffpurchased the 
property of Krishna Kamble from legal heir Housabai Sitaram 
) 
Chavan as she became owner of the said property after the 
death of her father Shripati. In fact, said Housabai had sold her 
share to one Anjirabai Guruling Kamble by registered sale c 
deed dated 13.1.1976. After the death of the said purchaser 
Anjirabai, her husband Guruling Kamble became the owner of 
the said property and from him the plaintiff/appellant had 
purchased the same vide registered sale deed dated 4.7.1984. 
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Thus, she claimed the ownership of the property i.e. western 
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half part of the suit property. It is further claimed by the appellant/ 
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plaintiff that she had spent huge amount and raised construction 
of four rooms after taking the permission of the Nagar Parishad. 
In absence of the appellant/plaintiff, defendant/respondent nos.3 
and 4 occupied the suit property at the instigation of defendant/ E 
respondent nos.1 and 2 and in spite of several requests· the 
possession of the said

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