Bombay High Court
Wasudeo S/O. Zilbaji Thakre vs Baban S/O. Zilbaji Thakre And ... on 2 May, 2016
Bench: A.S. Chandurkar
sa36.16.odt 1/9
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.
::: Uploaded on - 04/05/2016 ::: Downloaded on - 30/07/2016 00:37:57 :::
sa36.16.odt 2/9
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
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-
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
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
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
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
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
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//
