Mahadeo Namdeo Gaikwad ... vs Nivruti N.Gaikwad.& Others
2017 Latest Caselaw 6471 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                 SECOND APPEAL NO.314 OF 1993 
             [SECOND APPEAL NO.30 OF 1982 (BOMBAY)]

1.    Mahadev Namdeo Gaikwad
      since deceased by his heirs:

     1-A. Sahebrao Mahadeo Gaikwad,  
     son, age : 65 years, 

     1-B. Apparao Mahadeo Gaikwad,
     son., age : 50 years,

     1-C. Raghunath Mahadeo Gaikwad 
     (son), Age : 45 years,

     1-D. Smt. Sarubai Eknath More,
     Age - 75 years, daughter 

     1-E. Sou. Tolabai Nivrutti Bahir,
     daughter, age : 40 years,
     at Katadi, Tq. Jamkhed,
     Dist. Ahmednagar

     1-F.  Vijayanta Yuvraj Narke,
     daughter, Age 35 years,
     Pimpalgao, Alva, Tq. Jamkhed,
     Dist. Ahmednagar
  
     Nos.1 A to 1C residing at Rajuri,
     Tq. Jamkhed, Dist. Ahmednagar                 ..Appellants

                  Vs.

1-B.  Ramdas s/o. Nivruti Gaikwad,
      died through his Lrs.

1-B-1.Kusturbai w/o. Ramdas Gaikwad,




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      Age : 45 years, Occ. Household,
     r/o Rajuri (Kolhyachi),
      Tq. Jamkhed, Dist. Ahmednagar

1-B-2.Datta s/o. Ramdas Gaikwad,
      Age : 25 years, Occ. Agri.,
     r/o. Rajuri (Kolhyachi),
     Tq. Jamkhed, Dist. Ahmednagar

1-B-3.Nutan d/o. Ramdas Gaikwad,                          dismissed vide
      Age : 20 years, Occ. Household,                     R's order
      r/o. Rajuri (Kolhyachi),                            dt.9-3-2016
      Tq. Jamkhed, Dist. Ahmednagar

2.   Vithal Namdeo Gaikwad,
     since deceased by His heirs and 
     legal representatives

     2A. Smt. Lochanabai w/o. Vithal
     Namdeo Gaikwad, since deceased
     by her only heir and legal
     representative

     2B. Smt. Sumalbai w/o. Sahebrao
     Sapkal, r/o.Rajuri, Tq. Jamkhed,
     Dist. Ahmednagar                  ..Respondents

                         ----
Mr.S.S.Chaudhari, Advocate for appellants

Mr.R.L.Kute, Advocate i/b. Mr.R.N.Dhorde, Senior 
Advocate, for respondents 
                         ----

                                  CORAM : SANGITRAO S. PATIL, JJ.

                    RESERVED ON : AUGUST 02, 2017
                 PRONOUNCED ON  : AUGUST 23, 2017 
                 




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                                    3                              sa314-1993




JUDGMENT :

The original defendant nos.1 to 3 in Regular

Civil Suit No.127 of 1975 have challenged the

judgment and decree dated 20.08.1981 passed in

Regular Civil Appeal No.244 of 1979 by the learned

Assistant Judge, Ahmednagar, dismissing the said

appeal and confirming the judgment and decree dated

31.07.1979 passed by the learned Civil Judge, Senior

Division, Jamkhed, in the above-numbered Civil Suit.

2. The original plaintiff Nivrutti had two

brothers namely, Mahadeo (original defendant no.1)

and Vitthal (original defendant no.4). All of them

are no more. They are heareinafter referred as the

deceased Nivrutti, the deceased Mahadeo and the

deceased Vitthal. Defendant nos.2 and 3 namely,

Pandurang and Sahebrao are the sons of the deceased

Mahadeo. The appellants are the legal heirs of the

deceased Mahadeo and the deceased Vithal, while the

respondents are the legal heirs of the deceased

4 sa314-1993

Nivrutti. The common ancestor of the parties was

Namdeo Gaikwad.

3. The suit properties as described in

paragraph 1 of the plaint comprise of agricultural

lands, houses, a flour mill and a grocery shop.

According to the deceased Nivrutti, the suit

properties belong to the joing family comprising of

the deceased Mahadeo, the deceased Vitthal and

himself. Some of the agricultural lands and houses

are ancestral, while some of the agricultural lands

and houses have been purchased from the income of the

joint family. The suit properties were not ever

partitioned. The deceased Mahadeo being Karta of the

joint family, purchased some of the agricultural

lands and houses from the income of the joint family

in the name of defendant no.2. Some of the

agricultural lands were taken by the joint family for

cultivation on lease in the name of defendant no.2.

Since his name was recorded as tenant in the suit

5 sa314-1993

lands, they were purchased in the name of defendant

no.2 from the income of the joint family earned from

the agricultural lands, flour mill and grocery shop.

Due to certain disputes among the female members of

the family, the deceased Nivrutti, the deceased

Mahadeo and the deceased Vitthal started residing

separate in the year 1971. At that time, by way of a

family arrangement, the agricultural lands described

in paragraph 1(c) of the plaint were given to the

deceased Mahadeo, the deceased Nivrutti and the

deceased Vitthal for cultivation separately for their

livelihood. The deceased Nivrutti asked the deceased

Mahadeo to furnish accounts of the income from

running the flour mill and grocery shop and further

to give his share therein. However, the deceased

Mahadeo avoided to do so. Therefore, the deceased

Nivrutti asked the deceased Mahadeo to effect

equitable partition of all the suit properties and

allot his 1/3rd share therein to him. Since the

deceased Mahadeo avoided to do so, the deceased

6 sa314-1993

Nivrutti filed the above-numbered suit for partition

and recovery of possession of his 1/3rd share therein.

4. The deceased Mahadeo and defendant nos.2 and

3 filed written statement and opposed the suit

claims. They denied that the suit lands bearing

survey nos.182/1, 184, 170, 226/3/1, 226/9, 227/1/1,

225/1/1, 225/2A/1,225/2c are the ancestral/joint

family properties. They specifically stated that

these suit lands are the self-acquired properties of

defendant no.2. They have further stated that the

lands survey nos.226/3/1, 225/2A/1, 227/1/1, 225/1/1,

225/2c and 226/9 were being cultivated by defendant

no.2 as a tenant. He has purchased the said lands

under the provisions of the Bombay Tenancy and

Agricultural Lands Act ("B.T.A.L. Act", for short).

The deceased Nivrutti has no right to claim share in

the said lands. It is further stated that the Civil

Court has no jurisdiction to entertain the claim of

the deceased Nivrutti in respect of these lands vide

Section 85 of the B.T.A.L. Act. It is stated that the

7 sa314-1993

flour mill is a separate property of defendant no.2

and the grocery shop also is separate property of the

deceased Mahadeo. According to these defendants, the

ancestral and joint family properties of the parties

were partitioned prior to about 15 years (of filing

of the written statement) i.e. in or about 1960-61.

Since then, the deceased Nivrutti, the deceased

Mahadeo and the deceased Vitthal were cultivating the

lands of their respective shares separately. The

deceased Nivrutti has no concern whatsoever with the

lands and houses purchased by defendant no.2 or even

with the flour mill and the grocery shop. On these

grounds, these defendants prayed for dismissal of the

suit.

5. The deceased Vitthal did not file written

statement. The suit proceeded without his written

statement.

6. The learned trial Judge framed issues at

Exh.22. After evaluating the evidence adduced by the

8 sa314-1993

parties, the learned trial Judge accepted the case of

the deceased Nivrutti, decreed the suit for partition

and allotted 1/3rd share to the deceased Nivrutti in

the suit houses and the suit lands excepting the

lands survey nos.226/9 and 225/2c since the deceased

Nivrutti gave up his claim in respect of those two

lands.

7. So far as the accounts of the flour mill and

grocery shop are concerned, the learned trial Judge

observed that the deceased Nivrutti filed separate

application. The learned trial Judge further observed

that the deceased Nivrutti filed separate suit for

mesne profits under Order XX Rule 12 of the Code of

Civil Procedure ("the Code", for short). This part of

the judgment and order has not been challenged by

either of the parties and has got finality.

8. The deceased Mahadeo and defendant nos.2 and

3 filed Regular Civil Appeal No.224 of 1979 in the

District Court against the judgment and decree passed

9 sa314-1993

by the trial Court. After hearing the parties, the

District Court dismissed the appeal and confirmed the

judgment and decree passed by the trial Court.

9. The learned Counsel for the appellants

submits that the deceased Nivrutti claimed the

properties, which were standing in the name of

defendant no.2, as joint family properties.

Therefore, the burden was on the deceased Nivrutti to

establish that fact. He ought to have produced

sufficient evidence to establish that the joint

family had sufficient nucleus at its disposal, when

the lands and houses were purchased by defendant no.2

and that the said lands and houses were purchased by

defendant no.2 from that nucleus. He submits that

the learned trial Judge wrongly placed the burden on

defendant no.2 to establish that the said lands and

houses are his separate properties. He then submits

that the above-referred lands which were being

cultivated by defendant no.2 as a tenant have been

purchased by him under the provisions of the B.T.A.L.

10 sa314-1993

Act. The issue as to whether he was cultivating the

said lands as a representative of the joint family

ought have been referred to the tenancy Court since

the Civil Court had no jurisdiction to decide that

issue in view of the provisions of Section 85 of the

B.T.A.L. Act. However, the learned trial Judge

wrongly decided that issue. He then submits that the

partition of the joint family properties was effected

in the year 1960-61 itself. Therefore, the

agricultural lands and the house properties purchased

by defendant no.2 after 1960-61 cannot be

characterised as joint family properties. He submits

that the trial Court as well as the first appellate

Court did not appreciate the facts of the case

properly and correctly and decreed the suit wrongly.

10. As against this, the learned Counsel for the

deceased - Nivrutti and his legal heirs, submits that

the deceased Mahadeo and defendant nos.2 and 3

totally failed to establish that the partition of the

joint family properties was effected in the year

11 sa314-1993

1960-61. On the contrary, there is positive and

dependable evidence on record to show that it was for

the first time that in the year 1971, family

arrangement was effected by the deceased Mahadeo by

giving some portion of the lands belonging to the

joint family to the deceased Nivrutti for his

maintenance. All the agricultural lands and house

properties standing in the name of defendant no.2

were purchased from the income of the joint family.

There is sufficient evidence on record to show that

there was sufficient nucleus available with the joint

family from which the said properties were purchased

in the name of defendant no.2, who was the elder son

of the deceased Mahadeo - Karta of the family. He

then submits that the lands which were taken on

lease and cultivated by the joint family were shown

in the name of defendant no.2 as a tenant thereof.

Defendant no.2 was representing the joint family.

The said lands were purchased from the income of the

joint family in the name of respondent no.2. The

12 sa314-1993

said lands also assume the character of joint family

property. The learned Counsel submits that the

dispute between the tenant and landlord is required

to be referred to the tenancy Court vide Section 85

of the B.T.A.L. Act. No such dispute was involved in

this suit. Therefore, the Civil Court was quite

competent to entertain and try the suit. In support

of his contention, he relied on the judgment in the

case of Rajaram Mahadu Dahatonde and others Vs. Babu

Mahadu Dahatonde and others, 2016 (2) All.M.R. 326.

The learned Counsel submits that Mutation Entry

No.2347 was effected on the application of the

deceased Mahadeo in the year 1971. The contents of

the said mutation entry also would make it clear that

the joint family properties of the parties were not

partitioned till 1971. He submits that the learned

trial Judge as well as the first appellate Court have

rightly considered the case of the deceased Nivrutti

and have rightly decreed the suit.

13 sa314-1993

11. In view of the rival contentions raised by

the learned Counsel for the parties, the following

substantial questions of law arise for my

consideration :-

(i) Whether the status of the

joint family of the parties was legally

severed and partition of the joint

family properties of the parties was

legally effected in the year 1960-61 ?

                        (ii)       Whether   the   suit   properties 

                        are   joint   family   properties   of   the 

                        parties?

                        (iii)      Whether   the   Civil   Court   has 

jurisdiction to entertain and try the

present suit?

(iv) Whether the findings of facts

recorded by the trial Court and the

first appellate Court call for any

interference?

14 sa314-1993

12. It is well settled that there is a

presumption that every Hindu Family is joint and

continues to be joint in the absence of proof of

division/severance of the status of joint family.

The deceased Nivrutti has come with a positive case

that there was joint family comprising of the

deceased Mahadeo, the deceased Nivrutti and himself

and that they started residing separate by way of

family arrangement in 1971. It was, therefore,

necessary for the deceased Mahadeo and defendant no.2

to produce positive evidence on record to rebut the

presumption of jointness and and establish that

there has been division of the family at any

particular point of time.

13. Defendant no.2 deposes that there has been

partition of the joint family properties before about

18 years of his deposing before the Court i.e. in or

about 1961. He has given certain details about the

properties which were subject matter of the said

15 sa314-1993

partition. He examined Sakharam (DW 2) to prove the

factum of partition, who tried to support the

evidence of defendant no.2 in respect of the alleged

partition but in cross-examination, he admits that

he was not present at the time of the talks about the

partition between the deceased Mahadeo, the deceased

Vitthal and the deceased Nivrutti. He expressed

inability to state the survey numbers of the lands

given to the shares of the said persons. He happened

to be the servant of the deceased Mahadeo working in

the flour mill. The trial Court has rightly

characterised this witness as an interested witness

and discarded his evidence.

14. Mutation entry no.2347 (Exh.54) dated

01.03.1971 has been effected on the application of

the deceased Mahadeo. By that application he informed

that eleven agricultural lands mentioned in that

mutation entry were under joint cultivation of the

deceased Nivrutti, the Nivrutti and himself and they

are having 1/3rd share each therein. He requested the

16 sa314-1993

Talathi to record the names of the deceased Nivrutti,

the deceaed Vitthal and himself jointly to the record

of rights of the said lands showing that all of them

have 1/3rd share therein. The contents of this

mutation entry do not speak of partition of the joint

family properties of the parties. Had the partition

taken place as alleged by defendant no.2 in the year

1961, the lands subject matter of the Mutation entry

no.2347 would have been shown separately in the names

of the deceased Mahadeo, the deceased Nivrutti and

the deceased Vitthal separately to the extent of

their 1/3rd share therein in the year 1961 itself.

There was no reason for the deceased Mahadeo to await

till 1971 to show the names of the deceased Nivrutti

and the deceased Vitthal as the joint holders of the

said lands to the extent of their respective 1/3 rd

shares. This mutation entry nullifies the version of

defendant no.2 that the partition of the joint family

parties was effected in the year 1961.

17 sa314-1993

15. The deceased Mahadeo was Karta of the joint

family of the parties. He was very much available

for being examined before the Court when the evidence

of defendant no.2 was recorded. The deceased Mahadeo

being Karta of the family, was the best witness to

depose about the partition or otherwise of the joint

family properties. However, he has not been examined

without assigning any reason. Therefore, the trial

Court has rightly drawn adverse inference that had

the deceased Mahadeo been examined, his evidence

would not have supported the case of defendant no.2

about the alleged partition of the joint family

properties.

16. In the absence of any positive and

dependable evidence from the side of defendant nos.1

to 3 about partition of the joint family properties,

the presumption of jointness of the family of the

deceased Mahadeo, the deceased Nivrutti and the

deceased Vitthal would get attracted and their family

would be presumed to be joint.

18 sa314-1993

17. The case of the deceased Nivrutti that

because of the domestic disputes among the female

members of the family, they started residing separate

in the year 1971 under a family arrangement, in the

circumstances, is quite natural, probable and

acceptable. Defendant nos.1 to 3, thus, failed to

establish that the status of joint family of the

parties was severed in the year 1960-61 and that the

joint family properties were legally partitioned in

the said year.

18. Defendant no.2 deposes that the agricultural

lands subject matter of the suit, excepting the lands

mentioned in mutation entry no.2347, are his self-

acquired properties. He deposes that the deceased

Nivrutti and the deceased Vitthal were paid

Rs.1,000/- each in lieu of their shares in the

grocery shop and Rs.1,375/- in lieu of their shares

in the oil engines. Thus, according to him, the

grocery shop and oil engine no longer remained the

19 sa314-1993

joint family properties. This version is not

corroborated by any documentary evidence. Moreover,

as held above, the partition of the joint family

properties has not been proved to have been effected

in the year 1960-61. Therefore, the contention of

defendant no.2 that the suit properties, excepting

the lands described in Mutation Entry No.2347, were

purchased by him after severance of the joint status

of the family, cannot be accepted.

19. Though, there is presumption that a Hindu

family continues to be joint unless contrary is

proved, there is no such presumption that a family,

because it is joint, possesses joint family

properties or any property at all. When, in a suit

for partition, a party claims that any particular

item of the properties is a joint family property,

the burden of proving it rests on the party asserting

it. Where it is established or admitted that the

family possesses some joint property, which, from its

nature and relative value, may have nucleus from

20 sa314-1993

which, the properties in question, might have been

acquired, the presumption arises that it was joint

property and the burden shifts to the party alleging

self-acquisition, to establish that the property was

acquired without the aid of the joint family. In

order to give rise to the presumption that the

property standing in the name of an individual member

of the joint family is co-parcenary/joint family

property, the nucleus must be such that with its

help, the property claimed to be joint, could have

been acquired.

20. The learned Judge of the trial Court seems

to have placed the burden on defendant no.2, in whose

name, some of the properties are standing, to prove

that they are his self-acquired properties. However,

while discussing the evidence adduced by the parties,

he rightly appreciated it and held that there was

sufficient nucleus with the joint family of the

parties, from which the properties standing in the

name of defendant no.2 could have been purchased. The

21 sa314-1993

learned trial Judge further observed that the

deceased Mahadeo and defendant no.2 were not having

any independent source of income from which, the suit

properties could have been purchased. It may be

noted that the learned Judge of the first appellate

Court corrected the technical mistake committed by

the learned trial Judge in placing burden on

defendant no.2 and rightly framed point no.2 placing

burden on the deceased Nivrutti, to prove whether the

properties described in the plaint were belonging to

the joint family. The learned Judge of the first

appellate Court also appreciated the evidence of the

parties in respect of this point and held that the

all the suit properties are belonging to the joint

family of the parties.

21. It has come in the evidence of the deceased

Nivrutti that his father died before 40 years i.e. in

or about 1949. He states that the deceased Mahadeo

being the eldest in the family, all the

ancestral/joint family properties were mutated in his

22 sa314-1993

name as a Karta of the family. He states that his

family was holding 40-50 acres of land when his

father died, out of which 30 acres of land was

irrigated and rest of the land was dry. He states

that the deceased Mahadeo and defendant no.2 were

looking after the family business. The deceased

Vitthal and himself were doing agricultural work

only. He states that a flour mill was purchased and

a grocery shop also was started from the income of

the joint family. He states that the agricultural

land subject matter of the plaint, expecting the

lands shown in Mutation Entry No.2347 were purchased

from the income of the joint family. The deceased

Mahadeo and defendant no.2 had no independent source

of income of their own. He then states that they were

cultivating certain lands as tenants and the same

have been purchased in the name of defendant no.2

from the income of the joint family. Thus, according

to him all the properties subject-matter of the suit

are joint family properties.

23 sa314-1993

22. Defendant No.2 admits in his cross-

Examination that the deceased Mahadeo was doing

business of agriculture only. He admits that the

grocery shops was started from the income of the

lands of the family. He further admits that his

family was not having any source of income except the

shop and the lands. He states that they were getting

Rs.12/- (perhaps per day) from the grocery shop. He

then states that 10 acres of land out of the

ancestral lands was irrigated and they were getting

Rs.1500/- per annum from that land. Though it was the

claim of defendant No.2 that the deceased Mahadeo was

earning by running a sewing machine, there is

absolutely no evidence to support this version.

Moreover, the said version has been contradicted by

defendant No.2 himself by saying that the deceased

Mahadeo was doing business of agriculture only.

23. Defendant No.2 claims himself to be the sole

tenant of the lands subject-matter of the sale deed

(Exh.52) dated 23.05.1974 which have been purchased

24 sa314-1993

for Rs.2,700/- from the landlady namely, Nababai

Patil. The price of the said lands was fixed by the

Additional Tahasildar and A.L.T., Jamkhed as per the

order Exh.102 dated 06.08.1972. The deceased Nivrutti

specifically states that the said lands were being

cultivated by the joint family of the parties and not

by defendant no.2 individually. Defendant No.2 does

not state as to when he started cultivating the said

lands individually. Thus, the starting point of the

alleged tenancy of defendant No.2 itself has not been

established by him. The lands subject-matter of the

sale deed Exh.52 certainly must have been under

cultivation of the joint family on Tiller's day, when

admittedly there was joint family of the parties.

In the circumstances, the case of defendant no.2

that he was cultivating the said lands as tenant in

his individual capacity cannot be accepted.

24. Defendant no.2 has produced sale deeds Exh.44 to

52 in respect of the lands/houses purchased in his

name. The dates of execution of the sale deeds, the

25 sa314-1993

nature of the properties subject-matter of the sale

deeds and the prices thereof are as under:-

  Sr.No.            Date of Sale Deed        Nature of property             Price
      44                '03.04.1962               House                     Rs.400/-
      45                '18.03.1965               House                     Rs.500/-
      46                '14.03.1968                Land                  Rs.2,000/-
      47                '10.07.1969               House                  Rs.1,000/-
      48                '26.05.1970                Land                 Rs.27,000/-
      49                '20.03.1972                Land                  Rs.1,500/-
      50                '30.05.1973               House                  Rs.3,000/-
      51                '20.10.1973                Land                  Rs.1,000/-
      52                '23.05.1974                Lands                 Rs.2,700/-

25. As stated above, defendant No.2 has admitted

the income from the joint family properties to the

extent of Rs.12/- per day from the grocery shop and

Rs.1500/- per annum from the agricultural lands. He

has not disclosed the income earned by the running of

flour mill. In all probabilities, defendant no.2 must

have suppressed the income of the joint family in

order to show that there was no sufficient nucleus

available to purchase the above-mentioned properties.

The deceased Mahadeo, who was the best witness to

state about the income and nucleus of the joint

26 sa314-1993

family, has not come forward to depose before the

Court. The income of the family, in all probabilities

must have gone increasing year after year.

Considering the income of joint family and the value

of the lands subject matter of the sale deeds Exh.44

to Exh.52, it can easily be inferred that there was

sufficient nucleus available with the joint family

to purchase the said properties. The trial Court as

well as the first appellate Court have rightly

appreciated the evidence on record on this point and

have rightly held that the said properties have been

purchased from the nucleus of the joint family

properties. In the circumstances, I have no

hesitation to hold that the suit properties are joint

family properties of the parties.

26. The learned counsel for defendant nos. 1 to

3 submits that the Civil Court has no jurisdiction to

entertain and try the suit in view of section 85 of

the B.T.A.L. Act. Section 85 for the B.T.A.L. Act

reads as under:-

27 sa314-1993

"85.(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question, whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him)] which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.

Explanation.- For the purposes of this section a Civil Court shall include a Mamlatdars Court constituted under the Mamlatdars Courts Act, 1906."

27. In the present case, it is established that

the lands subject-matter of the sale deed Exh.52 have

been purchased in the name of defendant No.2 since he

was recorded as a tenant of the said lands. The

question about the status of defendant No.2 qua the

28 sa314-1993

said lands is not required to be decided in this

suit. It is the case of the deceased Nivrutti that

defendant no.2 was representing the joint family and

as such, he was recorded as a tenant of the said

lands. Such dispute is not required to be referred to

the tenancy court, since it is a dispute inter-se the

family members. Here, reference may be made to the

judgment in the case of Rajaram Mahadu Dahatonde and

others (supra), cited on behalf of the deceased

Nivrutti, wherein the question was whether the Civil

Court is bound to draw inference on the basis of the

certificate of purchase under section 32-M of the

B.T.A.L. Act, that the certificate holder is the

absolute owner of the property and it is his self-

acquired property or whether the members of Joint

Hindu Family can be allowed to prove in Civil Court

that it was joint family property or whether such

dispute needs to be referred to the Tenancy Court. In

paragraph no.23 of the judgment, this Court held as

under:-

29 sa314-1993

"23. ....... Firstly, the bar of jurisdiction under Bombay Tenancy Act is applicable only with regard to the subject matters mentioned in the Bombay Tenancy Act. Secondly, the bar does not mean that for all purposes the jurisdiction of Civil Court is taken away. Under the Bombay Tenancy Act, the tenant's rights are hereditary.

Tenancy rights can be acquired by single person or more persons or even by joint Hindu family. The disputes which are between tenant and the landlord are expected to be considered by the tenancy Court. In the present matter, the question is, whether the three properties mentioned in three certificates given under section 32-M of the Bombay Tenancy Act are joint Hindu family properties. Such dispute can be and needs to be decided by Civil Court. This is partition suit and only on the basis of certificate granted under section 32-M of the Bombay Tenancy Act defendant No.1 cannot contend that it is his self acquired property. No such inference is possible

30 sa314-1993

when there are facts and circumstances of the case like present one. This Court has no hesitation to hold that the dispute of the present nature cannot be dealt with under the Bombay Tenancy Act. Reliance is placed on the case reported as 2006 (2) Mh.L.J. 243 (Savitra Bapu v. Rau Rama)."

28. Considering the above referred judgment and

the facts of the present case, I hold that the civil

court has jurisdiction to decide the issue involved

herein and it was not at all necessary to refer any

issue to the tenancy Court.

29. The trial Court as well as the First

Appellate Court have rightly considered the evidence

on record and have rightly held that the suit

properties are joint family properties and that they

have not been legally partitioned amongst the members

thereof. The trial Court as well as the first

appellate Court have rightly held that the deceased

Mahadeo, the deceased Nivrutti and the deceased

31 sa314-1993

Vitthal are entitled to have 1/3rd Share each in the

excepting the land Survey Nos.226/9 and 225/2c. The

concurrent findings of facts recorded by the trial

court and the first appellate court, based on correct

appreciation of evidence, cannot be interfered with

in the second appeal. However, as per Order XX Rule

18 of the Code, where in a suit for partition of

property or separate possession of a share therein,

the Court passes a decree, then it shall declare the

rights of the several parties interested in the

agricultural or house properties. In the present

case, the trial Court as well as the first appellate

Court have not declared shares of all the parties to

the suit. This mistake will have to be rectified by

modifying the impugned judgment and decree of the

trial Court vide Order XLI Rule 33 of the Code.

30. The appellants have failed to substantiate

the grounds of objections against the impugned

judgments of trial Court and that of the first

appellate Court. The Second Appeal is devoid of

32 sa314-1993

substance. It is liable to be dismissed. However,

the impugned decree will have to be modified. Hence,

the order :-

(i)            The appeal is dismissed.


(ii)           The   impugned   decree   is   modified   and   it   is 

hereby declared that the deceased Nivrutti, the

deceased Mahadeo and the deceased Vitthal and after

their demise, their respective legal heirs, have 1/3 rd

share each in the suit properties excepting the land

Survey Nos.226/9 and 225/2c.

(iii) Other directions given by the trial Court in

the decree are maintained.

(iv)           No costs. 



                                     [SANGITRAO S. PATIL]
                                             JUDGE                          

kbp