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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.36 OF 2016
APPELLANT: Wasudeo S/o Zilbaji Thakre, Aged about
59 years, Occ-Cultivator, R/o
Ori.
Mahalgaon, Tahsil-Kamptee, District-
Deft./Appellant
Nagpur.
on R.A.)
-VERSUS-
RESPONDENTS: 1. Baban S/o Zilbaji Thakre, Aged about
62 years, R/o Kadoli, Tahsil-Kamptee,
Ori. Plft.Respdt-
ig District- Nagpur.
1 on R.A.)
2. Smt. Kalabai W/o Hardeo Falke, Aged
about 54 years, Occ-Cultivator, R/o
Apatur, Tahsil-Umrer, District - Nagpur.
3. Smt. Shakun S/o murlidhar Zod, Aged
about 53 years, R/o Niri, Tahsil-Khapa,
District - Nagpur.
4. Smt. Muktabai W/o Ramesh Chauhan,
Aged about 52 years, R/o Saori, P.O.
Digori, Tahsil-Kamptee, District-Nagpur.
5. Smt. Mirabai W/o Deoraoji Raut, Aged
about 43 years, R/o Randa, Tahsil-
Kamptee, District-Nagpur.
6. Smt. Rukmabai Wd/o Zilbaji Thakre,
Aged about 75 years, R/o mahalgaon,
Tahsil-Kamptee, District-Nagpur.
Shri A. S. Jaiswal, Senior Advocate with Shri A. A. Naik, Advocate
for the appellant.
Shri S. V. Purohit, Advocate for the respondent No.1.
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CORAM: A.S. CHANDURKAR, J.
DATED: 2 nd MAY, 2016.
ORAL JUDGMENT :
1. The present appeal has been filed by the original defendant in Special Civil Suit No.822/1999. Said suit was filed by the respondent No.1 - original plaintiff seeking possession of agricultural field bearing Gat No.256/1-A admeasuring 2 Hectares 83R. This suit has been decreed and the appeal filed by the defendant has been dismissed.
2. The plaintiff and the defendant are sons of one Zilbaji Thakre. It is the case of the plaintiff that his father owned self acquired property being agricultural field No.256. During his life time, Zilbaji partitioned the said field in the year 1984. 2.83 HR land was given to the plaintiff, 2.83 HR land was given to the defendant No.1 and the remaining land was retained by Zilbaji. On 27-5-1991 said Zilbaji executed a Will after which he expired on 19-12-1991. According to the plaintiff, the defendant had taken forcible possession of land bearing Gat No.256/1A which was allotted to the plaintiff and hence, the suit for possession along with a prayer for permanent injunction was filed.
3. According to the defendant, field Gat No.256 was ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 3/9 ancestral joint family property. After the death of Zilbaji, there was a family settlement in which it was agreed that the defendant would take the entire field bearing Gat No.256 while the plaintiff would take the agricultural fields and house property situated at village Garla. The execution of the will came to be denied.
4. The parties led their evidence before the trial Court.
After considering the same, the trial Court held that field Gat No.256 was the self acquired property of Zilbaji. It rejected the case of the defendant that the suit property was ancestral joint family property. It further held that the Will dated 27-5-1991 was not proved. Even the family settlement at Exhibit-248 was held to be a fabricated document. By holding that Zilbaji had partitioned his property during his life time, it was held that the plaintiff was entitled for possession of the suit land. Accordingly by judgment dated 30-4-2008, the suit came to be decreed.
5. The appellate Court after reconsidering the evidence on record held that Zilbaji had acquired Gat No.256 from his own earning. It considered the revenue entries from the year 1984 onwards and held that Zilbaji had partitioned his property during his life time and that the plaintiff was the owner of Gat No.256/1-
A. The finding of the trial Court with regard to the family settlement at Exhibit-248 was also affirmed. By judgment dated 7-
::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 :::sa36.16.odt 4/9 11-2015, the appellate Court dismissed the appeal.
6. Shri A. S. Jaiswal, the learned Senior Counsel alongwith Shri A. A. Naik learned Counsel for the appellant raised twofold contentions. According to him, when both the Courts had held that Gat No.256 was the self acquired property of Zilbaji, there was no question of such self acquired property being partitioned. According to the learned Senior Counsel the stand with regard to self acquired property of the father and its partition cannot go hand in hand. It was submitted that the partition could be effected only amongst the parties who had a pre-existing right in the property. Reliance in this regard was placed on the judgment of the Hon'ble Supreme Court in Hiraji Tolaji Bagwan Vs. Shakuntala AIR 1990 Supreme Court 619 as well as the judgment of the learned Single judge in Gangadhar Pandhari Harde v Uttam S/o Pandhari Harde and another 2008(2) Mh.L.J. 334.
It was then submitted that in the suit filed by the plaintiff a prayer for declaration that the plaintiff was the owner of half share of the suit property along with the relief of possession was made. As per the schedule of property annexed to the plaint, field Survey Nos.256/1-A and 256/1-B had been mentioned. As it was the case of the plaintiff all along that he was the owner of field Gat no.256/1-A, at the highest, the suit could have been ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 5/9 decreed only in respect of said land. The decree, however, has been passed with regard to the suit land described in the plaint.
Such relief could not have been granted in favour of the plaintiff.
It was urged that the aforesaid gave rise to substantial questions of law.
7. Shri S. V. Purohit, the learned Counsel for the respondent no.1 - original plaintiff supported the impugned judgment. According to him, both the Courts after due consideration of the evidence on record had concluded that in the year 1984 Zilbaji had partitioned his properties. The question with regard to partition of self acquired property was being raised for the first time by the appellant in the present appeal. According to him, this plea was never raised either before the trial Court or before the appellate Court. By relying upon the judgment of the Division Bench in Kisansing Mohansing Balwar and othrs v. Vishnu Balkrishna Jogalekar AIR 1951 Bombay 4, it was submitted that it was permissible for a father to make a division of his self acquired property between his sons. It was, therefore, submitted that Zilbaji was justified in granting shares of his property to his sons during his life time.
As regards the submission that the decree passed by the trial Court and affirmed by the appellate Court was with ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 6/9 regard to Gat No.256/1-A and 256/1-B, it was submitted that the plaintiff was seeking possession only of Gat No.256/1-A which was his case throughout. He submitted that the decree passed by the trial Court would have to be read in that manner.
It was, therefore, submitted that no substantial question of law arose in the second appeal and the same was liable to be dismissed.
8. With the assistance of the learned Counsel for the parties, I have perused the records of the case and I have given due consideration to their respective submissions. The findings recorded by both the Courts that Gat No.256 was the self acquired property of Zilbaji has not been seriously challenged in the appeal.
In fact, the learned Senior Counsel for the appellant has proceeded on the basis that having recorded a finding that Gat No.256 was the self acquired property of Zilbaji, there would be no question of its partition. The trial Court after considering the 7/12 extracts and the revenue records especially at Exhibits 36 to 38 and 173 to 178 has recorded a finding that since the year 1986, separate areas with regard to cultivation and possession of the respective holders was shown. These revenue entries were never challenged by the defendant nor was any reason given by the defendant for not doing so. The document at Exhibit-35 which is a record of showing ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 7/9 accrual of rights indicates that the same was taken on 7-8-1985 specifically mentioning that on 25-4-1984 a partition had taken place between Zilbaji, the plaintiff and the defendant. It is further noted that this partition was acceptable to all the parties after which the entry was certified. The revenue records have thereafter been altered and mutated. As noted above, no objection was ever raised to the same by the defendant. Hence, the finding in this regard that pursuant to the partition in the year 1984, the respective lands were allotted to the brothers is a finding of fact based on material on record.
9. In the light of the aforesaid finding if the submission made on behalf of the appellant is considered, I find that it would not be permissible for the appellant to succeed on the basis of the same. Having accepted the ownership and possession of Gat No.256/1-B in the year 1984 and having not raised any objection whatsoever to such division, it would not be permissible for the appellant now to contend that as Gat No.256 was the self acquired property of Zilbaji, the same could not have been partitioned. The appellant cannot be permitted to approbate and reprobate in the same matter. Even otherwise, as observed by the Division Bench in Kisansing Mohansing (supra), there is nothing objectionable if a father while dealing with his self acquired property deals with it in ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 8/9 the same manner in which he deals with the joint family property or ancestral property. It has been observed that distributing such property between the sons by the father during his life time was permissible and it was also open for him to make an unequal distribution. In fact, in the present case, both the sons have been given an equal share of land admeasuring 2 hectares 83R each.
In the light of aforesaid decision, the reliance placed on the judgment of the learned Single Judge in Gangadhar Pandhari Harde (supra) is misplaced. Even otherwise, the division of self acquired properties by Zilbaji amongst his two sons was permissible during his life time. There cannot be any dispute with the proposition that a partition of property can only be among the parties who have pre-existing right to the property as observed in Hiraji Tolaji Bagwan (supra). However, in the facts of the present case considering the position that the division of Gat No.256 was accepted by the appellant, he is precluded from contending otherwise. Hence, said submission made on behalf of the appellant cannot be accepted.
10. In so far as the other submission with regard to the decree passed by the trial Court and affirmed by the appellate Court is concerned, the same would have to be read by considering the averments in the plaint as a whole. Though in the schedule of ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 ::: sa36.16.odt 9/9 property Gat Nos.256/1A and 256/1B have been referred to, the case of the plaintiff is clear that he was seeking possession of only Gat No.256/1-A. This aspect was also not disputed by the learned Counsel for the respondent No.1. Hence, the decree for possession as passed by the trial Court and maintained by the appellate Court will have to be read as a decree for possession in respect of the field Gat No.256/1-A admeasuring 2 hectares 83 R.
11. Subject to what has been observed herein above, the second appeal does not give rise to any substantial question of law.
The same is, therefore, dismissed with no order as to costs.
12. At this stage, the learned Counsel for the appellant seeks continuation of the protection of possession for a period of eight weeks from today. This request is opposed by the learned Counsel for the respondent no.1.
The possession of the appellant shall remain protected for a period of eight weeks from today.
JUDGE //MULEY// ::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 :::