1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.103 OF 1987 1. L.Rs. of Sahebrao s/o. Rama Satbhakre (Deceased) 1-A. Lata wd/o. Sahebrao Satbhakre, Aged 22 yrs., 1-B. Gajanan s/o. Sahebrao Satbhakre, Minor. 1-C. Nanda d/o. Sahebrao Satbhakre, Minor. 1-D. Mina d/o. Sahebrao Satbhakre, Minor. 1-E. Sarla d/o. Sahebrao Satbhakre, Minor. 1-F. Chotu s/o. Sahebrao Satbhakre, Minor. Appellants 1-B to 1-F minor through natural Guardian Mother Smt. Lata wd/o. Sahebrao Satbhakre (Original plaintiffs.) 2. Abaram Satbhakare …........ APPELLANTS. // VERSUS // 1. Sitaram s/o. Ganpat Satbhakre, Aged 37 yrs., 2 2. Deorao Bahinaji Lahane, Aged 25 yrs. through : a. Smt. Ghubhabai Deorao Lahane, Aged about 70 yrs., Occ.Household. b. Tejrao s/.o, Deorao Lahane, Aged about 51 yrs., Occ. Agrilst. c. Arun Deorao Lahane, aged about 45 yrs., d. Drupatabai Arvind Jadav, Aged about 42 yrs., Occ. Agrilst. All r/o. Sagwan, Taluka Buldana, District Buldana. 3. Rama Ganpat Satbhakre, Aged 25 yrs., Occ. Agrilst (Dead) through L.Rs. : Sau. Kausalyabai Bhivsan Tate, Aged about 40 yrs., Occ. Household, r/o. Dudha, Tq. Distt. Buldana. 4. Smt. Shantabai wd/o. Rama Satbhakare, Aged about 65 yrs., (DELETED) 5. Sau. Leelabai d/o. Rama Satbhakare, Aged about 35 yrs., (DELETED) ....... RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. S.R.Deshpande, Adv. for the Appellants. Mr. Kavimandal, Adv. for the respondents. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 3 CORAM : SMT. VASANTI A. NAIK, J. DATE : 06.08.2010. ORAL JUDGMENT : 1. This Second Appeal challenges the concurrent judgments passed by the trial Court and the First Appellate Court holding that the appellants/plaintiffs' suit was liable to be dismissed with costs, and so dismissing the same. 2. Few facts giving rise to this Second Appeal are stated thus : The plaintiffs are the sons of the defendant no.4 Rama Satbhakre. The defendant no.1 Sitaram Satbhakre is the younger brother of Rama and uncle of the plaintiffs. It was the case of the plaintiffs that the defendant nos. 1 and 4 did not possess any ancestral land. The mother of the defendant nos. 1 and 4 expired in the year 1981. The defendant nos. 1 and 4, according to the plaintiffs, were living separately during the life time of their 4 mother. According to the plaintiffs, the defendant no.4 Rama had purchased field S.No.100, ad-measuring 17 acres and 10 gunthas jointly along with one Ranuba Ugade who had no relationship with the parties. The said property was purchased by the defendant no.4 and Ranuba on 10.1.1956 and subsequently, the land was equally divided between the joint owners i.e. defendant no.4 Rama and Ranuba. The portion ad-measuring 8 acres and 30 gunthas, according to the plaintiffs was allotted to the share of the defendant no.4. The plaintiffs' claim that the suit property was the self-acquired property of defendant no.4. It was the case of the plaintiffs that the defendant no.4 gifted five acres of land in favour of the plaintiffs by registered Gift deed dt. 3.3.1969. The plaintiffs were in possession of the suit property. Since there was some mistake in the Gift deed, there was a correction deed executed in the year 1983. According to the plaintiffs, the defendant no.1, their uncle had no right or title in the suit property. Since the defendant no.1 had dispossessed the plaintiffs on or about 22.6.1982, the plaintiffs had filed the suit for recovery of possession of five acres of land from Survey No.100/1 from the defendant nos. 1 to 3. The defendant nos. 2 and 3 were stated to 5 be in possession of the suit property on the date of institution of the suit and hence, they were joined as party/defendants. 3. The defendant no.1 resisted the claim of the plaintiffs. The relationship between defendant nos. 1 and 4 as brothers and the plaintiffs and defendant no.1 as uncle and nephews was not denied. It was admitted that the mother of defendant nos. 1 and 4 had died in 1981. It was, however, disputed that the property was self-acquired property of defendant no.4 - Rama. According to the defendant no.1, he was working as a Peon in the Collector's Office at Buldana and the property was purchased in the name of defendant no.4 from the joint family funds. It was pleaded by defendant no.1 that certain other agricultural land in village Nandura Koli, belonging to the joint family of defendant nos. 1 and 4 was sold on 28.2.1953 and subsequently, the suit land was purchased on 10.2.1956 in the name of the defendant no.4 because he was the manager of the joint family of defendant nos. 1 and 4. It was pleaded that the land ad-measuring eight acres and 30 gunthas belonged to defendant no.1, defendant no.4 and their mother. Consequently, according to the defendant no.1, 6 defendant no.4 had not right to donate the land ad-measuring five acres in favour of the plaintiffs. It was pleaded by the defendant no.1 that there was an oral partition in the year 1972 and in that partition, four acres of land was allotted to the share of the defendant no.4 and three acres of land was allotted to the share of the defendant no.1. It was pleaded that one acre and 30 gunthas of land was allotted to the share of their mother. 4. Defendant nos. 2 and 3 also resisted the claim of plaintiffs by filing the Written Statement. They raised similar pleas as those raised by defendant no.1. It was pleaded that defendant no.1 was the owner of four acres and 30 gunthas of land and the land ad-measuring two acres was given in possession of the defendant no.2 in pursuance of an agreement of sale dt. 14.5.1982. The defendant no.1 was put in possession of the property in part performance of the contract. The defendant nos. 2 and 3 pleaded that the plaintiffs had filed the suit on an imaginary plea of ownership based on the alleged Gift deed of the year 1969. The defendant nos. 2 and 3 also sought for the dismissal of the suit. 7 5. The trial Court and the First Appellate Court considered the evidence tendered by the parties and held that the plaintiffs' suit was liable to be dismissed. Both the Courts held that the suit property was the self-acquired property of the defendant no.4 - Rama. The Courts then held that the plaintiffs had failed to prove that the defendant no.4 was working on daily wages. The Courts held that the Gift deed executed by the defendant no.4 in favour of the plaintiffs in the year 1969 was not valid as the property gifted by the defendant no.4 to the plaintiffs was the joint family property of the defendant nos. 1 and 4. 6. The concurrent findings of facts recorded by both the Courts are challenged by the plaintiffs by filing this appeal. 7. Mr.S.R.Deshpande, Adv. for the appellants submitted that the Courts were not justified in holding that the suit property was the joint family property of defendant nos. 1 and 4 as there was evidence on record showing that the suit property was self- acquired property of defendant no.4. The learned Counsel for the 8 appellants then submitted that the Courts ought to have held that the plaintiffs had half share in the property ad-measuring 8 acres and 30 gunthas, even assuming that the property was joint family property of defendant nos. 1 and 4. 8. Mr.Kavimandan, the learned Counsel for the respondent no.2 supported the judgment passed by both the Courts and submitted that the findings recorded by both the Courts are pure findings of facts and are based on a proper appreciation of the material evidence on record. According to the learned Counsel for the respondent no.2, the respondent no.2 had filed a suit against the Original defendant no.1 for specific performance of contract of sale and that the suit has been decreed. The learned Counsel for the respondent no.2 submitted that the appeal filed by the present plaintiffs against the judgment and decree passed in the suit for specific performance of contract has also been dismissed by the First Appellate Court on 23.6.2010. The learned Counsel for the respondent no.2 sought for dismissal of the appeal. 9. On hearing the learned Counsel for the parties and on 9 perusal of the record and proceedings and both the judgments, it appears that no substantial question of law arises for consideration in this Second Appeal. Both the Courts have appreciated the evidence on record in a reasonable manner to hold that the plaintiffs had not succeeded in proving their title to five acres of land on the strength of the Gift deed executed by the defendant no.4 - Rama in their favour in the year 1969. Both the Courts have rightly held that the defendant no.4 was not competent to execute the Gift deed as the property ad-measuring 8 acres and 30 gunthas was the joint family property of defendant no.1 and defendant no.4. The Courts considered the oral evidence tendered on behalf of both the parties and also the admission in the cross-examination of defendant no.4 that there was a sale of ancestral property situated at village Nandura Koli in the year 1953 and the suit property was purchased in the year 1956. The certified copies of entries in the Index register in regard to the sale of property at village Nandura Koli were placed on record. The property at Nandura Koli was sold for a consideration of Rs.1,740/- and the property comprising the suit property was purchased by the defendant no.4 and Rama Ugade for the consideration of 10 Rs.2,000/-. On the basis of the admissions of the defendant no.4 - Rama and the evidence of defendant nos. 1, 4 and the plaintiffs, the Courts held that the suit land was joint family property belonging to the defendant nos. 1 and 4. The Courts held that the defendant no.1, the defendant no.4 and their mother were the owners of the property since the year 1956 and in such circumstances, defendant no.4 could not have gifted the suit property ad-measuring 5 acres from the joint family property ad- measuring 8 acres and 30 gunthas in favour of the plaintiffs. The Courts rightly held that the defendant no.4 was not competent to alienate the suit land to the plaintiffs and the plaintiffs could not have claimed to be the owners of the suit property on the strength of the Gift deed of the year 1969. In the circumstances of the case and on the pleadings of the plaintiffs, it also cannot be said that the suit filed by the plaintiffs could have been treated as one for partition and separate possession and should have been decreed. 10. Since no substantial question of law arises for consideration in this Second Appeal, the appeal is dismissed with 11 no order as to costs. JUDGE jaiswal