IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.990 OF 2006. APPEAL NO.990 OF 2006. APPEAL NO.990 OF 2006. Narhari Mahadeo Kumbhar ...Appellant Versus. Sakharam Mahadeo Kumbhar & Ors. ...Respondents --- Shri G.S.Godbole for the Appellant. Shri S.S.Kulkarni for the Respondent Nos.1, 2 and 6. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 06th February, 2008. : 06th February, 2008. : 06th February, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned advocates appearing for the parties. The Second Appeal is by the original first defendant. The respondent Nos.1 to 12 are the original plaintiffs. The suit was filed for declaration, partition and possession of 1/5th share in the suit properties bearing Survey No.11/6, 13/2, 13/3 and 121/1B situated at village Chendhare, Taluka Alibag, District Raigad. The case made out by the original plaintiffs is that late Shantaram, late Govind, the appellant-defendant No.1 and plaintiff Nos.1 and 2 are the real brothers. Their father Mahadeo died on 08th July, 1948. Their mother Parvatibai died subsequently. The original plaintiff Nos.3 to 5 are the sons of late Shantaram and defendant Nos.2 to 4 are the daughters of Shantaram. The plaintiff Nos.6 to 8 are the sons of late Govind. The plaintiff No.9 is the widow of late : 2 : 2 : 2 : Govind. The plaintiff Nos.10 to 12 are the daughters of late Govind. It is alleged that properties bearing Survey Nos.7/1, 7/7, 11/6, 13/2 and 13/3 at village Chendhre were the self-acquired properties of Mahadeo and lands bearing Survey Nos.8/3, 2/1, 3/3, 121/1B, 5/2 and 5/4 were the ancestral properties in the hands of Balu, the father of Mahadeo. There was a partition effected between Mahadeo and his two brothers. The said Mahadeo was allotted survey No.121/1 in the said partition alongwith survey Nos.8/3 and 5/2. He was also allotted 1/2 share in survey No.5/4. 2. It is stated that in the year 1951 there was a partition effected amongst the plaintiff Nos.1, 2, late Shantaram, late Govind, the defendant No.1 and Parvatibai(widow of Mahadeo). In the said partition the appellant-first defendant was allotted the lands bearing Survey Nos.8/C, 7/1A and 8/3D. After the demise of Parvatibai, the land allotted to the share of Parvatibai in the partition i.e the lands bearing Survey No.11/6, 121/1B, 13/2, 13/3, continued to be joint between the parties. It is alleged that in the year 1951 the appellant-first defendant purchased Survey No.5/2B from the plaintiff No.2. The suit was filed for partition and separate possession of the properties allotted to the share of Parvatibai. In the said suit in the alternative, the plaintiffs contended that in the event : 3 : 3 : 3 : the Court comes to the conclusion that the properties bearing Survey Nos.8C, 7/1A and 8/3D are not allotted to the share of the first defendant, a decree for partition in respect of these three properties be passed. The appellant contested the suit. He admitted that properties described in paragraph No.2 of the plaint were the self-acquired properties of deceased Mahadeo. It is contended that Survey No.5/4 which is stated to be ancestral property in the plaint was a self-acquired property of Mahadeo. 3. It is contended that in partition effected in the year 1950-51 the appellant-defendant No.1 was allotted lands bearing Survey No.5/4, 11/6, 13/2, 13/3, and 121/1B. It is contended that the said lands are the exclusive properties of the appellant for 40 to 43 years. 4. The trial Court framed various issues. However, the trial Court accepted the contention raised by the plaintiffs in the alternative that they were entitled to 4/5th share in lands bearing Survey No.8C, 7/1, 8/3 and accordingly decree for partition was passed by the trial Court. 5. An appeal was preferred before the District Court by the appellant-first defendant and a : 4 : 4 : 4 : cross-objection was filed in the said appeal by the original plaintiffs. The appeal and cross-objections have been dismissed by the Appellate Court by confirming the findings recorded by the trial Court. 6. The submission of the learned counsel appearing for the appellants is that the Courts below could not have passed a decree of declaration, partition and separate possession in respect of the properties bearing Survey No.8/C, 7/1A, 8/3D which according to the averments made in paragraph No.3 of the plaint were allotted to the share of the appellant in the family partition. It is submitted that there was no prayer for partition made as regards the said three properties which were referred to in paragraph No.3 of the plaint. He submitted that the plea raised by the original plaintiffs in paragraph Nos.3 and 9 were mutually exclusive and were not in the alternative. He submitted that even assuming that the plea in paragraph No.9 was taken in alternative, the original plaintiffs should have made election at the time of trial. He submitted that in any event plea in paragraph No.9 of the plaint was abandoned by the original plaintiffs. 7. I have carefully considered the submissions. In paragraph No.3 of the plaint there is a reference to partition of the year 1951 in which it is alleged that : 5 : 5 : 5 : the three properties in respect of which decree has been passed were allotted to the share of the first defendant-appellant. The prayer in the plaint is for partition and separate possession of properties described in paragraph No.4 which according to the plaintiffs were allotted to the share of Parvatibai in the partition. In paragraph No.9, the plaintiffs have submitted that in the alternative and without prejudice to their rights and contentions, if the Court comes to the conclusion that the said three properties mentioned in paragraph No.3 of the plaint were not allotted to the share of the appellant-first defendant, separate 4/5th share be allotted to the plaintiffs in the said three properties. 8. Therefore, fact remains that by paragraph No.9, by way of an alternative plea, a decree for partition was sought in respect of three properties in respect of which a decree has been passed by the trial Court. 9. The perusal of the judgments of both the Courts below show that the Courts below have appreciated oral and documentary evidence on record. The first defendant-appellant has filed a detailed written statement. While dealing with paragraph No.9 of the plaint in which the said alternative plea is raised by the plaintiffs, the assertion made by the : 6 : 6 : 6 : appellant-first defendant is that in the partition of the year 1950-51 he became owner of the property bearing Survey Nos.5/4, 11/6, 13/2, 13/3 and Survey No.121/1B. As per the case made out by the plaintiffs, the said properties bearing Survey Nos.11/6, 13/2, 13/3 and 121/1B were allotted to the share of the deceased Parvatibai. Thus, the appellant-first defendant did not come out with the case that the property bearing Survey Nos.8C, 7/1A and 8/3D in respect of which the decree was passed were allotted to his share. On the said aspect he was cross-examined and he stated that in the written statement, he has not come out with the case that the said three properties were allotted to him in partition. The Appellate Court has referred to an application made by the appellant-first defendant to the Tahsildar on 23rd February, 1993 in which he claimed that the properties described in paragraph No.4 of the plaint (i.e Survey Nos.11/6, 13/2, 13/3 and 121/B) were allotted to him in the partition. Thus, neither in the written statement nor in the said application made by the appellant-first defendant in the year 1993 a case was made out by the appellant-defendant No.1 that the three properties in respect of which a decree has been passed were allotted to his share. Therefore, the Courts below have passed a decree for partition. It is not in dispute that the said three properties in respect of which decree was passed were properties held by : 7 : 7 : 7 : Mahadeo. The averments made in the plaint are to the effect that the said three lands were either self-acquired properties of Mahadeo or ancestral properties held by Mahadeo. The said assertions are made in paragraph No.2 of the plaint which are not disputed by the appellant-first defendant. In the circumstances, it is very difficult to find fault with concurrent findings of the fact recorded by the Court below. Second Appeal is dismissed accordingly. There will be no orders as to costs. Judge. Judge. Judge.