1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.179 OF 2009 1) Ramdas Tanka Dhangar, Age-70 years, Occu:Agril., 2) Dongar Tanka Dhangar, Age-65 years, Occu:Agril., Both R/o-Khokrale, Tq. & Dist-Nandurbar. ...APPELLANTS. VERSUS 1) Bhika Dhanji @ Dhankya Dhangar, Age-80 years, Occu:Agril., 2) Krushna Bhika Dhangar, Age-Major, Occu:Agril., 3) Vithoba Bhika Dhangar, Age-Major, Occu:Agril., 4) Sudam Bhika Dhangar, Age-Major, Occu:Agril., All R/o- Khokrale, Tq. & Dist-Nandurbar. ...RESPONDENTS. .... Mr. S.P. Brahme Advocate for the Appellants. .... 2 CORAM: K.K. TATED, J. ORDER RESERVED ON : 17TH JUNE, 2009 ORDER PRONOUNCED ON : 25TH JUNE, 2009 . ORDER: 1. Heard Mr. Brahme, learned counsel for the Appellants. 2. The present Second Appeal preferred by the original Plaintiffs against the Judgment and decree dated 26th August, 2008 passed by District Judge-I, Nandurbar in Civil Appeal No.16 of 2003 arising out of the Judgment and decree dated 28th April, 2003 passed by Civil Judge, Senior Division, Nandurbar in Regular Civil Suit No.110 of 1998. 3. The Appellants filed Regular Civil Suit No.110 of 1998 in the Court of Civil Judge, Senior Division, Nandurbar for partition of the suit property as described in Annexure A to the Plaint. The Appellants and the Respondents are related to each other as shown in the genealogy appearing hereunder: 3 Garbad – from II wife | | ------------------------------------------------------ | | | Gamnya Dhanji Tanka | | | | Bhika(Deft. No.1) | | | | | ------------------- | | | | | Krushna Vithoba Sudam | (Deft (Deft. (Deft. | No.2) No.3) No.4) | | | ------------------------------------------ | | | | | Ramdas Dongar Rukhma Damiv Ruya (Pltff. (Pltff. No.1) No.2) 4. It is the case of the Appellants that Gamnya, Dhanji and Tanka are three sons of Garbad. During the life time of Garbad, Gamnya was separated. It is the case of the Appellants that at the time of separation, Gamnya received land bearing Survey Nos. 181, 182 and 189. Gamnya died in the year 1959 and thereafter his property stood in his wife’s name, who also expired in the year 1971. It is the case of the Appellants that they learnt on 19th October, 1998 that Respondent No.1 4 – Bhika divided the entire property of Gamnya between his sons i.e. Respondent Nos. 2, 3 and 4. It is the case of the Appellants that as Gamnya died issue less, his entire property comes to the share of father of Respondent No.1 – Dhanji and father of Appellants – Tanka. Therefore, the Appellants filed Regular Civil Suit No.110 of 1998 on 27th November, 1998 for partition in respect of the suit property as described under Annexure A to the Plaint. It is the case of the Appellants that in the year 1977 the Respondent No.1 divided the entire property of Gamnya between Respondent Nos. 2, 3 and 4. It is the case of the Appellants that on the death of Gamnya, his property should have been divided equally between Dhanji and Tanka. 5. On the other hand the Respondents filed Written statement at Exhibit 11 and contended that the suit was not maintainable, suit was false and same was liable to be dismissed. Respondents raised objection about maintainability of the suit on the ground that all the legal heirs were not party to the suit. It is the case of the Respondents that survey No.181 and 182 5 were not joint family property. It is the case of the Respondents that Survey No.181 and 182 are the self acquired property of Gamnya. Gamnya died issue less. The Respondent No.1 looked after Gamnya. There were cordial relations between Respondent No.1 and Gamnya and therefore, on 28th May, 1952, Gamnya executed will in favour of Respondent No.1. The said will was registered. As per the will, Survey Nos. 181, 182 given to Respondent No.1. Thereafter Gamnya died on 11th April, 1959. It is the case of the Respondents that on the basis of the will, firstly Tolabai – wife of Gamnya became the owner of the property and there is entry in revenue record accordingly vide Entry No. 610. Tolabai died on 2nd September, 1971 and thereafter Respondent No.1 became the owner of the suit property after the death of Dhanji on 7th January, 1974, father of Respondent No.1. It is the case of the Respondents that as the Survey Nos. 181, 182 and 189 were exclusive property of Gamnya, received from his father and purchased by him during his life time, the Appellants have no right in the suit property. 6. On the basis of these pleadings, the trial 6 Court framed following issues: ISSUES FINDINGS 1) whether plaintiffs prove that the suit property is their ancestral property? In the negative. 2) Whether plaintiffs prove that the partition took place in between Def. No.2 to 4 is invalid? No. 3) Whether plaintiffs prove that, they have ½ share in the suit property? No. 4) Whether defendants prove that the suit is hit by non-joinder of necessary parties? In the affirmative. 5) Whether defendants prove that deceased Gamnya executed will-deed on 28.5.1952 in favour of Def. No.1 allotting land bearing Survey No. 181, 182 and three houses during the life time of Tolabai and thereafter to defendant No.1? Redundant and not proved. 6) Whether defendant No.1 prove that after demise of Tolabai on 2.9.1971 he become owner of Survey No.181, 182 and three houses? No. 7) Whether defendants prove that land bearing Survey No.136 old Survey No.189 now Gat No.236 was self acquired property of Gamnya which he allotted to his brother Dhana Garbad father of defendant No.1 by way of family arrangement? Not proved. 7 8) Whether defendants prove that after demise of Dhana Garbad on 7.2.1974 Def. No.1 Bhika Dhanji become owner and possessors of land bearing Gat No.236? No. 9) Whether defendants prove that Gat No.205 and 237 were self acquired property of deceased Gamnya which he allotted to Radhakrishna Mandir? No. 10) Whether defendants prove that they are cultivating land bearing Gat No.205 and 237 on behalf of Radhakrishna Mandir? No. 11) Whether the suit is within limitation? IN THE NEGATIVE. 12) Whether plaintiffs are entitled to get their ½ share in suit land by way of partition? NO. 13) Whether plaintiffs are entitled to re-open the partition? No. 14) Whether defendants are entitled to claim compensatory costs of Rs.2,000/- from the plaintiffs? NO. 15) What reliefs and decree? Suit is dismissed without costs, see order below. 8 ADDITIONAL ISSUE FINDING 14-A) Whether plaintiffs prove that the deceased father of defendant No.1 bequeathed suit property bearing Survey No.189, 181, 182 and House property to the father of plaintiffs by way of will- deed dtd.20.12.1948? No. 7. On the basis of evidence on record, the trial Court held that the Appellants failed to prove that the suit property is ancestral property. The trial Court further held that the Appellants failed to prove that the partition which took place between Respondent Nos. 2 to 4 was invalid. 8. Being aggrieved by the Judgment and decree dated 28th April, 2003 passed by Civil Judge, Senior Division, Nandurbar in Regular Civil Suit No.110 of 1998, the Appellants – original plaintiffs preferred Civil Appeal No.16 of 2003. The Lower Appellate Court raised following Points and recorded findings against them: 9 POINTS FINDINGS 1) Whether the suit is within limitation? No. 2) Whether the suit described in Schedule A of the plaint are the joint family property of the plaintiffs and defendants? No. 3) Whether the suit is bad for non joinder of necessary parties? Yes. 4) Whether the deceased Gamnya has bequeathed the suit property or part of it in favour of defendant no.1 Bhika, after the lifetime of his wife and the defendant no.1 became the owner of that property i.e. survey no.181 and 182 Gat No.235? Yes. 5)Whether the plaintiffs are entitled for half share in the suit property? No. 6)Whether the plaintiffs have made out a case of setting aside the impugned judgment and decree and for remanding the case for trial afresh and decision? No. 7) Whether the impugned judgment and decree of the trial Court is legal, proper and correct? Yes. 10 8) What order? Appeal is dismissed. 9. Learned counsel appearing on behalf of the Appellants produced copy of Appeal Paper Book in Civil Appeal No.16 of 2003. With the assistance of learned counsel for the Appellants, I have gone through the copy of Plaint, written statement and deposition of PW1 and DW1. Learned counsel for the Appellants submitted that both the Courts below erred in coming to the conclusion that the suit filed by the Appellants was barred by limitation. He submitted that the Appellants filed the suit for partition on the basis that the suit property belongs to Hindu Joint Family. He submitted that they learnt on 19th October, 1998 about the division made by Respondent No.1. As soon as they learnt about the division of the suit property between Respondents, they immediately filed Regular Civil Suit No.110 of 1998 in the Court of Civil Judge, Senior Division, Nandurbar on 27th November, 1998. Therefore, there is no question of filing of the Regular Civil Suit No.110 of 1998 beyond the prescribed period of limitation as per the 11 Limitation Act. 10. Both the Courts considered the evidence of PW1 Dongar - the plaintiff No.2, who deposed in his chief examination that near about 48 years back the Respondents dispossessed the plaintiffs from the suit property. Therefore the first cause of action arose to the Appellants for filing the suit before 48 years. Both the Courts further considered that PW1 admitted in his cross examination that the partition was already effected. In similar way, DW1 Bhika, the defendant No.1 in his deposition deposed that some family arrangement was effected in the year 1947 and the Entry No.324 was effected accordingly. On the basis of this admitted position, both the Courts held against the Appellants that the suit filed by them is barred by limitation. 11. It is crystal clear from the evidence of PW1 that he himself admitted in his chief examination that Respondents dispossessed the Appellants 48 years back. It has also come on record that partition took place in the year 1947. On the basis of these two grounds, 12 it is clear that the present suit filed by the Appellants is barred by law of limitation. 12. Learned counsel for the Appellants submitted that both the Courts failed to appreciate that Appellants had filed suit for partition and possession only. It was not the suit for reopening of the partition, hence the alleged exclusion of the Appellants cannot be considered as cause of action. These submissions of the learned counsel for Appellants cannot be accepted because the Appellants in their Plaint in Para 4 specifically stated that Respondent No.1 divided the property described in Annexure A to the Plaint between Respondent Nos. 2 to 4 and same is not as per law. They further stated in Para 3 of the Plaint that the said partition to be set aside and redistribution is necessary in the interest of justice. This itself shows that it is the case of the Appellants that the partition which took place long back, is bad in law and because of that they prayed for reopening of the partition which took place between Respondents in the year 1977. After going through the evidence of PW1 it is clear that he himself deposed that in partition, 13 Garbad had allotted suit property to Gamnya. But actually on record the Respondent brought evidence to show that Survey No.189 was purchased by Gamnya from third party. When both the Courts held that Appellants failed to prove that the suit properties were ancestral properties, there was no question of partition between the Appellants and the Respondents. Even for the sake of arguments if I accept that the Appellants filed suit for partition, in that case, on their own pleadings as appears in Para 3 and 4 of the Plaint, the present suit was filed by the Appellants for reopening of the partition which took place in the year 1977. In any case, the documentary evidence in the form of 7/12 extracts produced by the Respondents shows that the suit property was never the property of the Joint Hindu Family and therefore, there is no question of partition. 13. Both the Courts below on the basis of the evidence on record concurrently held that the Appellants failed to prove that the suit property was the property of the Joint Hindu Family, and also that the suit filed by the Appellants was within 14 limitation. Considering the concurrent findings of both the Courts below fully supported by the evidence on record, I do not find any substance in the present Second Appeal and the same is dismissed summarily. (K.K. TATED), JUDGE. asb/JUN09/sa179.09