1 (SA303.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.303 OF 2011 Deu Bhanu Alawe & Others ....Appellants. V/s Shantaram Deu Alawe & Others ..... Respondents. Mr. A.S. Khandeparkar i/b Khandeparkar & Associates for the Appellants. Mr. Mohan Rane for Respondent No.1. CORAM: V. M. KANADE, J. DATE : 12th August, 2011 P.C.:- 1. Heard the learned Counsel for the Appellants and the learned Counsel for Respondent No.1. 2. Appellants are original Defendant Nos. 1 to 4 and Respondent No.1 is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendants”. 3. Father of Defendant Nos. 1 to 4 and the Plaintiff’s father were real brothers. A suit was filed by the Plaintiff, seeking 2 (SA303.11) partition and separate possession in respect of the suit premises. The suit properties consist of lands for which Certificate under section 32-M was issued by the tenancy authorities in favour of the father of the Defendant Nos. 1 to 4 and, admittedly, the properties were tenanted properties. Trial Court decreed the suit and the appeal which was filed by the Defendants was dismissed and decree was confirmed. 4. The learned Counsel appearing on behalf of appellants/original Defendants submitted that both the courts below had erred in recording a finding that the properties were joint family properties. He submitted that observations which are made by both the courts below are contrary to the record and evidence which has been recorded by the Trial Court. When a query was made as to whether this ground was taken by the Defendants in the lower Appellate Court or in this Court, Counsel for the appellants fairly conceded that specific ground to that effect was not taken either in the lower Appellate Court or in this Court. Secondly, he submitted that the question as to whether the tenanted property was a joint family property or not was a question which could be decided only by the Tribunal and not by the Civil Court. Reliance was placed on the judgment of the Apex Court in Mudakappa vs. Rudrappa1 It is further submitted that both the Courts below had erred in relying on the facts that both, the Plaintiff and Defendants were residing in the same house which was situated on the 1 1994(2)SCC 57 3 (SA303.11) said land. My attention was also sought to be drawn to one of the statements made by the Plaintiff in his evidence wherein he has stated that he has not produced documentary evidence in support of his case. This, however, has been vehemently denied by the learned Counsel for the Plaintiff. Counsel for the Appellants/original Defendants further invited my attention to the judgment and order passed by the lower Courts and submitted that both the Courts below had erred in holding that the property was blended in joint family property. 5. On the other hand, the learned Counsel appearing on behalf of the Plaintiff i.e. Respondent No.1 herein submitted that both the Courts below had taken into consideration various facts and circumstances which were brought on record and on the basis of the said evidence had recorded a finding that the suit property, though it was standing in the name of father of the Defendants in the Certificate issued under section 32-M, in fact, was shown as joint family property. He also submitted that both the Courts below had specifically referred to the statement made by the father of the Defendants before tenancy authority that the property was an ancestral property since last 35 years and it was jointly cultivated. Other evidence such as payment of taxes by the Plaintiff was also taken into consideration. 6. In this view of the matter, it will not be possible to 4 (SA303.11) accept the submissions made by the learned Counsel appearing on behalf of the original Defendants i.e the Appellants herein. In view of the concurrent finding of facts recorded by both the Courts below, it will not be possible for this Court to take a contrary view by substituting the view of this Court to that of the lower Courts. Though, it has been vehemently urged that finding recorded by both the Courts below is contrary to the record, no such ground has been taken either before the lower Appellate Court on in this Court and, therefore, it will not be possible to accept this submission. So far as the judgment of the Apex Court in Mudakappa1 (supra) on which reliance is placed by the learned Counsel for the Appellants/original Defendants is concerned, in my view, ratio of the said judgment will not apply to the facts of the present case. In the said case, the Apex Court has observed that the words ‘tenant’, ‘the Tribunal’ and ‘the joint family’ have been defined under Karnataka Land Reforms Act, 1962 and in view of the provisions of the said Act, the Apex Court observed that Tribunal constituted under the Karnataka Land Reforms Act had an authority to decide where one of the members of the family cultivates the land, whether it is for and on behalf of the joint family or not. There is no such provision under the BT & AL Act and, therefore, the Civil Court, in my view, would have jurisdiction to decide where tenancy, though it is in the name of the eldest son, whether the land is cultivated by all the members of the joint family or not. In the present case, 1 1994(2)SCC 57 5 (SA303.11) both the Courts below have held that though tenancy certificate was issued in the name of father of the Defendants, the land was in joint cultivation of all the members of joint family. No substantial question of law is therefore, raised in this second appeal. 7. The Apex Court in a recent judgment in Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent1 has deprecated the practice of interference of the High Court with the concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty-fourth Report of the Law Commission of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and after taking into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under:- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the 1(2009) 4 Supreme Court Cases, 244 6 (SA303.11) concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” This being the position, it will not be possible to interfere with the concurrent finding of facts record by both the Courts below. 8. For the aforesaid reasons, Second Appeal is dismissed. 9. At this stage, the learned Counsel appearing on behalf of the Appellants submits that the Appellants need some time to challenge the order passed by this Court and lower Courts in the Apex Court and, therefore, further submits that 7 (SA303.11) the decree may not be executed for a period of 12 weeks. 10. In my view, since the appellants want to challenge this order in the Apex Court, it will be appropriate if a direction is given that the execution should proceed, however, actual possession should not be handed over for a period of 12 weeks from today. It is clarified that the Respondent No. 1/Plaintiff shall not be liable to pay fine of Rs 500/- per day which is imposed by the authorities below for not taking possession since the stay has been granted by this Court. 11. Second Appeal is accordingly disposed of. (V.M. KANADE, J.) 8 (SA303.11)