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. 99 OF 1987. APPEAL NO. 99 OF 1987. APPEAL NO. 99 OF 1987. Jairam Balkrishna Amberkar (since deceased through LRs.) 1(1) Smt.Savitribai Jayaram Amberkar 1(2) Shri Pandir Jairam Amberkar 1(3) Shri Suryakant Jairam Amberkar 1(4) Shri Shrikant Jairam Amberkar All residing at R.No.10, Babu Manzil, Chawl No.1, Bail Bazar, Wadia treet, Kurla 400 070. ... Appellants. Versus. 1. Tukaram Balkrishna Amberkar (deceased) (C.A.No.1825/88 for bringing heirs on record dismissed for non-prosecution) 2. Vidyadhar Tuakram Amberkar 3. Sumati d/o.Rajaram Amberkar 4. Devidas Rajaram Amberkar 5. Bhaskar Sitaram Amberkar (Appeal stands dismissed as against Respondents Nos.4 and 5 vide Addl. Registrar’s order dt.9.6.1989). 6. Chandrakant Sitaram Amberkar 7. Pulaji Sitaram Amberkar 8. Saraswati w/o.Sitaram Amberkar (Appeal stands dismissed as against Respondents Nos.7 and 8 vide Addl. Registrar’s order dt.27.11.1987). ... Respondents. Shri Narendra Walawalkar, Senior Counsel with Shri Devidas Keluskar for the Appellants. Shri S.M.Railkar holding for Shri G.R.Rege the Respondents Nos.2, 3 and 6. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 9th January, 2008. : 9th January, 2008. : 9th January, 2008. ORAL ORAL ORAL JUDGMENT.: JUDGMENT.: JUDGMENT.: 1. I have heard Shri Walawalkar, learned Senior Counsel appearing for the Appellants. The Appellants are the legal representatives of the original Plaintiff. : 2 : 2 : 2 : With a view to appreciate the submissions made by the learned Senior Counsel appearing for the Appellant it will be necessary to refer to the facts of the case in brief. 2. The Plaintiff filed a suit for partition and possession of the suit land more particularly described in paragraph 1 of the plaint. It is the case of the original Plaintiff that the property described in paragraph 1 of the plaint was a joint property of the Plaintiff, Defendants and the other co-sharers. It is stated that Regular Civil Suit No.59 of 1949 was filed for partition of the said properties and on 27th June 1952 a consent decree was passed in the said suit. The Plaintiff, the 1st Defendant, the third Defendant’s father, the 4th Defendant’s husband and the father of the 5th and 7th Defendants were Defendants Nos.2 to 5 in the said Regular Civil Suit No.59 of 1949 and they were held entitled to 1/12th share in the properties. It is the case of the Plaintiff that as per the consent decree passed in the said suit, actual partition by metes and bounds is not effected as none of the parties to the said suit have taken steps to execute the consent decree. It is the case of the Plaintiff that though partition was not effected in terms of the said consent decree, the Plaintiffs and the Defendants continued to be in possession of certain properties which were in : 3 : 3 : 3 : their possession for several years. It is the case of the Plaintiffs that there was a partition effected between the parties to the present suit 32 to 35 years back in presence of panchas. The partition was effected of all properties except four lands known as baga. It is the case of the Plaintiff that there was a partition of Mango trees made in the year 1970 on the said lands. It is the case of the Plaintiff that accordingly the parties to the suit and/or their predecessors were in possession of the suit properties. 3. According to the case of the Plaintiff out of the 1/12th share of the parties to the present suit as declared in decree passed in Regular Civil Suit No.59 of 1949, the Plaintiff is entitled to 1/4th, the 1st Defendant is entitled to 1/4th, the 3rd and 4th Defendants are entitled to 1/4th and the 5th and 8th Defendants are entitled to 1/4th shares. The prayer in the suit as stated above is for partition of 1/48th share of the Plaintiff. It was pointed out in the suit that out of the properties bearing survey Nos.47 and 49 there are trees jointly owned by the parties to the suit and the said trees and the land below the said trees was required to be allotted to the share of the Plaintiff and the Defendants and out of that 1/4th share of the Plaintiff be separated and placed in possession of the Plaintiff. A prayer for perpetual injunction was also : 4 : 4 : 4 : incorporated in the suit. 4. The suit was resisted by the 1st Defendant. One of the contentions raised was that the suit was hit by section 47 of the Code of Civil Procedure, 1908 in view of the decree in earlier suit. It was contended that the suit was not maintainable. The 1st Defendant denied that there was a partition effected in presence of panchas. Written statement of the first Defendant was adopted by the 2nd to 4th Defendants. The trial Court decreed the suit by over-ruling the objection of the 1st Defendant. The trial Court passed a decree holding that the Plaintiff was entitled to 1/48th share in the suit land and 1/4th share in the 46 trees (45 Hapus and one Payari) standing in the suit land. The trial Court directed that partition to be effected by the Collector. 5. In an appeal preferred by the Defendants Nos.1, 2 and 4, the Appellate Court has interfered on the ground that the suit for partition was not maintainable in the light of the decree passed in Regular Civil Suit No. 59 of 1949. 6. On 23rd February 1987 the Second Appeal was admitted by this Court by observing that the question framed by the first Appellate Court in paragraph 6 of the Judgment was the substantial question of law. The : 5 : 5 : 5 : said question reads thus: "Whether the suit for partition in the present circumstances was maintainable?" 7. The submission of the learned Senior Counsel appearing for the Appellants is that there was a finding of fact recorded by the trial Court accepting that there was a partition effected in presence of panch witnesses and therefore, the learned trial Judge proceeded to pass a decree. He submitted that the Appellate Court has not dealt with the said finding and the said finding has not been set aside. He submitted that it was not necessary for the Plaintiff to implead all the other parties to the Regular Civil Suit No.59 of 1949 as party Defendants to the present suit. He submitted that no other parties to the decree passed in the said suit have sought implementation of the said decree for effecting partition by metes and bounds. He submitted that the partition could have been effected between the parties to the present suit on the basis that the decree passed by the trial Court as the said decree was subject to the partition which may be effected of the larger property in execution of decree passed in Regular Civil Suit No.59 of 1949. He, therefore, submitted that the Appellate Court has committed an error by holding that the suit was not maintainable. He submitted that the : 6 : 6 : 6 : Appellate Court should have considered the merits of the case and especially the evidence led by the Plaintiff to show the partition effected in presence of panchas. 8. I have carefully considered the submissions. In paragraph 9 of the judgment of the Appellate Court, after referring to the consent decree passed in Regular Civil Suit No. 59 of 1949, it is held as under: "My attention was invited to para 13 of Exhibit 44 and it was contended that certain lands are in possession of the branch of the plaintiff and the defendants; and therefore, the suit in the present form is maintainable and the plaintiff will have the right to ask for possession of his own share by metes and bounds. However, I do not agree with the proposition. It can be seen from para 13 of the decree that plaintiff and defendants’ branch was allowed to retain the possession of certain lands till the partition is finally effected by the Collector or any subordinate gazetted officer deputed by him on his behalf. It does not mean that the lands which were retained in possession of the plaintiff and defendants branch would be allotted to their share only when the Collector effects the : 7 : 7 : 7 : partition of the suit lands as per the decretal mandate which was passed in Regular Civil Suit No.59 of 1949,. In otherwords all the properties described in para 1 of the plaint are joint properties of plaintiff defendants and other co-sharers. Unless the partition is effected amongst all the shares, which are mentioned in Regular Civil Suit No.59 of 1949, the plaintiff’s branch would not get their possession of their separate share to the extent of 1/12th. If the present suit is decreed then the decree in the present suit would be redundant. It cannot be executed." 9. I have perused the certified copy of the decree passed in Regular Civil Suit No.59 of 1949. Apart from the parties to the present suit, there were several other parties to the said suit. Clause 13 of the decree passed in the said suit records that the properties enjoyed by the 1st Defendant as well as the Defendants Nos.2 to 5 in the suit will be continued to be enjoyed by the Defendants nos.1 and Defendants Nos.2 to 5 in equal shares including the enjoyment of the trees thereon. It is provided in clause 13 that the enjoyment of the properties by the Defendants Nos.1 and Defendants nos.2 to 5 will continue till the partition was effected : 8 : 8 : 8 : as per the decree. 10. In the present suit filed by the Plaintiff, his case is that the Plaintiff and the Defendants in the present suit are entitled to 1/12th undivided share as per the decree passed in Regular Civil Suit No. 59 of 1949. It is an admitted position that the said 1/12th share is not carved out as there is no partition by metes and bounds effected on the basis of the said consent decree. Clause 13 of the said decree records the arrangement between the parties was to continue till partition by metes and bounds was to be effected. Unless partition is effected in terms of the aforesaid decree, the shares of the parties to the present suit cannot be carved out and if such shares are to be carved in so far as the parties to the present suit are concerned, for that purpose the decree passed in the earlier suit will have to be executed. Apart from this fact, it must be noted that the parties to the Regular Civil Suit No. 59 of 1949 who are having undivided share in the larger properties are not impleaded as parties to the present suit. 11. In the circumstances, no fault can be found with the finding recorded by the Appellate Court that the suit for partition filed by the Plaintiff was not maintainable. There is no merit in the Appeal and the : 9 : 9 : 9 : same is accordingly dismissed with no order as to costs. Judge. Judge. Judge.