1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.159 OF 2004 Krishna Maruti Jadhav since deceased through Shivaji Krishna Jadhav & ors. : Appellants. Versus Shankar Maruti Jadhav since deceased through Smt.Parvati Shankar Jadhav & ors. : Respondents. Shri.M.N.Dhamal for the Appellants. ShriV.J.Mehta i/by Shri D.C.Mehta for Respondent Nos.1A to 1H. Shri.P.B.Kakade for the Respondent Nos.1A & 2C Shri.A.J.Kenjale for Respondent Nos.5A, 5B and 5E. CORAM : R.M.SAVANT, J DATED : AUGUST 25, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 25-09-2003 passed by the learned Ist Ad-hoc Addl.District Judge, Satara by which the Judgment and Decree dated 25-08-1995 passed by the trial Court in the suit filed for partition was 2 slightly modified to the extent of including Gat No.1280 which was excluded by the trial Court in its decree. 2. The Appellants herein are the purchasers of the property in question from original Defendant No.1 Krishna. The Respondent Nos.1A to 1H are the heirs of the Original Plaintiff Shankar. Both Shankar and Krishna are the sons of Maruti who had two other sons Gangaram and Laxman. Respondent No.1 Shankar, who was the Plaintiff, filed R.C.S No.221 of 1985 for partition and separate possession of his share in the suit properties including lands bearing Gat No.1252, Gat No.1083, Gat No.1280 and house properties bearing Grampanchayat No.382/1 and 382/2 and open land of about 3 gunthas adjacent to Satara Karad Road admeasuring 110 ft x 110 ft situated at village Kashil Tal & Dist.Satara. 3. Sum and substance of the case of the Plaintiff in the said suit was that Defendant No.1 was the Karta and Manager of the joint family who was managing the said joint family properties. It was further the case of the Plaintiff that the agricultural lands mentioned in 3 paragraph 1-A/1 and 1-A/2 are very fertile and were generating income which the Defendant No.1 was receiving on behalf of all the family members and it is out of the income of the said lands that the Land Gat No.1280 was purchased for the benefit of the joint family, but the sale deed was executed in the name of Defendant No.4. It was further the case of the Plaintiff that Defendant No.1 prevented him since 1980 from taking crops from the suit lands and that the Defendant Nos.1 and 4 are responsible for the loss caused to the Plaintiff on account of the said acts. It is further case of the Plaintiff that by notice dated 03/04/1985 the Plaintiff demanded partition and asked for separate share. But the Defendant No.1 denied the same. The Plaintiff, therefore, had filed the said suit for partition and separate possession. 4. The said suit, on behalf of the Defendants, was resisted by only Defendant No.1 by filing his written statement. Defendant No.4 Bhagirathibai did not file her written statement. The case of the Defendant No.1 in the said written statement was that the said Gat No.1280 was purchased by Defendant No.4 Bhagirathibai from the 4 Stridhan that was received by her and, therefore, the Plaintiff and Defendant Nos.2 and 3 are not concerned with the said land. In so far as suit plot adjacent to Satara Karad Road is concerned, it was the case of the Defendant No.1 that he had received the said plot for rehabilitation on account of the earthquake that took place in the year 1967. In so far as Gat No.1252 is concerned, the Defendant No.1 stated that though the registered sale deed is in the name of Maruti, the father of the Plaintiff and the Defendant Nos.2 and 3, but the consideration for the same was paid by Defendant No.1 from his own funds. The Defendant No.1 further contended that a partition had taken place in the year 1969 and a partition note was prepared on 24/10/1969 and all the parties have accepted the said partition and signed the same in confirmation of their acceptance. 5. The parties went to trial. The trial Court, on the basis of the material that was on record, came to a conclusion that the Plaintiff has proved that the properties excluding Gat No.1280 are the joint family properties. The trial Court further held that the alleged partition deed has not been acted upon as there were no attendant 5 circumstances to indicate that partition had in fact taken place and that the parties are in possession of their separate shares. The trial Court was of the view that Defendant No.1 could not blow hot and cold at the same time by contending that the properties in question are self acquired properties and at the same time contend that partition had taken place by partition note dated 24.10.1969. The trial Court taking into consideration the fact that Laxman had filed a suit in the year 1970 held that if the partition had already taken place in the year 1969, Laxman had no occasion to file a suit in the year 1970. The trial Court however recorded a finding that Gat No.1280 was the self acquired property of Bhagirathibai. The trial Court, therefore, by its judgment and decree dated 25/8/1995 decreed the suit. 6. Aggrieved by the said judgment and decreed passed by the trial Court, the Defendant No.1 filed R.C.A No.605 of 1995. The lower Appellate Court confirmed the finding of the trial Court in so far as all other lands are concerned and held that the Plaintiff would be entitled to 1/4th share in the suit properties. The lower Appellate Court, however, in exercise of the powers under Order 41 Rule 33 of the 6 Code of Civil Procedure came to a conclusion that the finding recorded by the trial Court in respect of the said Gat No.1280 that it is a self acquired property of Bhagirathibai could not be sustained and therefore set aside the said finding and included the said property i.e. Gat No.1280 in the decree passed by the trial Court and accordingly modified the said decree to the said extent. 7. It is sought to be contended on behalf of the Appellant that the plot allotted in the year 1967 that is adjacent to Satara Karad road under the rehabilitation scheme and Land Gat No.1280 have been wrongly included in the joint family properties that are ordered to be partitioned. The learned counsel for the Appellants submitted that without there being any cross objection, the finding as regards the Gat No.1280 that it is a self acquired property of Bhagirathibai has been set aside. 8. Per contra, it is submitted on behalf of the contesting Respondent Nos.1A to 1H that in so far as two plots are concerned, the trial Court in fact has recorded a finding that the said plots cannot be said to be the self acquired property of the Defendant No.1 in view of the fact that even if the partition note is to be taken into 7 consideration, the said partition having been taken place in the year 1969 and the said plots having being allotted in lieu of the damage caused to the house properties in the year 1967. The said suit plots obviously would have held to be the joint family properties. In so far as Gat No.1280 is concerned, it is submitted by the learned counsel for the Respondent Nos.1A to 1H that Defendant No.4 did not even file written statement and step into the witness box. In the absence of the same, the trial Court had erred in recording a finding that the said Gat No.1280 was the self acquired property of Bhagirathibai i.e. Defendant No.4. In the said circumstances, it is submitted that exercise of powers under Order 41 Rule 33 of the Code of Civil Procedure Code by the lower Appellate Court as regards the said finding in respect of Gat No.1280 cannot be faulted with. 9. In my view, there is merit in the submissions advanced on behalf of the Respondent Nos.1A to 1H. The finding as regards the two plots allotted under the Rehabilitation Scheme need not call for any interference by the Appellate Court in its appellate jurisdiction. In so far as Gat No.1280 is concerned, the lower Appellate Court, in my 8 view, has rightly corrected the decree passed in exercise of the powers under Order 41, Rule 33 of the Code of Civil Procedure. 10. Both the Courts below therefore have concurrently held and rejected the case of partition based on partition note dated 24/10/1969 and have held that the properties in question are the joint family properties, save and except Gat No.1280 in respect of which the lower Appellate Court has corrected the decree passed by the trial Court. Exercise of powers as indicated above by the Appellate Court in respect of Gat No.1280, in my view, cannot be faulted with. The challenge raised in the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. In view of dismissal of the Second Appeal, Civil Application No.148 of 2004 does not survive and the same is disposed of as such. All interim orders stand vacated. The learned Counsel for the Appellants Shri Dhamal prays for stay of operation of this order by continuing the ad interim order. Prayer refused. [R.M.SAVANT, J] 9