1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR Second Appeal No. 115 of 1997 Appellant : Atmaram son of Ganu Nagrale, aged about 53 years, occ: cultivator, resident Baman Wada, tahsil Rajura, District Chandrapur versus Respondent : Baliram son of Ganu Nagrale, aged about 35 years, occ: cultivator, resident of Baman wada, Tahsil Rajura, District Chandrapur Mr M.B. Badiye, Advocate for appellant Mr M.P. Khajanchi, Advocate for respondent Coram : A.P. Bhangale, J Dated : 16th December 2009 2 Judgment 1. This is an appeal from judgment and order dated 26.8.1996 passed by the Additional District Judge, Chandrapur in Regular Civil Appeal No. 165 of 1985 whereby judgment and order passed in Regular Civil Suit No. 20 of 1981 by the Civil Judge, Junior Division, Rajura on 29.3.1985 was reversed. 2. It is not in dispute that Ganu Nagrale had died in the year 1974-75 and his wife had predeceased him in 1973-74. Ganu had three sons. Eldest son Hari died in the year 1973. However, he was separated in 1950-51 and land admeasuring 12 and half acres was given to his share. The joint family property viz. old survey number 23 (re- numbered as survey number 289) and old survey number 25 (re-numbered as survey numbers 209 and 210) was partitioned in the year 1966 after appellant and respondent were separated. Old survey number 23 (new 289) was given in the share of plaintiff Atmaram and old survey no. 205 (new 209, 210) was given in the share of defendant Baliram. Mutation entries in revenue record relied upon in the suit proceedings as exhibits 69, 70, 77, 78 and 79 indicated that partition had been effected 3 accordingly and since 1966-67 parties were cultivating the land given in their share separately as Ganu Nagrale himself had effected partition during his life-time. 3. Plaintiff Atmaram instituted Regular Civil Suit No. 20 of 1981 in the Court of Civil Judge, Junior Division, Rajura claiming possession of 3 acres of land from his brother Baliram (defendant) or in the alternative, for partition of entire landed property equally by metes and bounds, claiming half share in the entire property. According to plaintiff, after the death of his father Ganu, immoveable property of Ganu was partitioned between him and defendant. Land survey number 289 came to the share of plaintiff as also further 4 acres of land from survey no. 210 while land survey no. 209 (remaining land) and survey no. 210 was given to the share of defendant. Plaintiff referred to the dispute as to immovable property initiated by defendant Baliram under Section 145 Cr.P.C. which was decided by the Sub- Divisional Officer, Rajura in favour of plaintiff, but the revisional court decided it in favour of defendant. Plaintiff sent registered notice through his counsel to defendant and demanded 3 acres and 20 gunthas out of land 4 survey no. 210, but the defendant denied the claim. Thus, plaintiff filed suit for possession of land or in the alternative for equal partition. 4. Defendant resisted suit claim by filing written statement. He contended that property was partitioned in the year 1966-67 and entries in revenue record were effected accordingly. He denied claim of plaintiff that there was no partition and that there was oral family arrangement of temporary nature. 5. The trial Court by judgment and decree dated 29.3.1985 directed equal division of land survey nos. 289, 210, 209 of village Bamanwada between the parties. Being aggrieved by the said judgment and decree, defendant filed Regular Civil Appeal No. 165 of 85. The 1st Appellate Court reversed judgment and decree of the trial Court and thereby dismissed the suit. Hence, this appeal. 6. This appeal was admitted on 30.4.1998 on the following substantial question of law :- “Whether the appellate court was justified in reversing the judgment of the trial Court ? 7. The question of law framed earlier was re- 5 formulated vide order dated 30.9.2009 as under : “Whether the conclusion of the First Appellate Court that there was in fact a partition of the suit property on account of the long standing entries in the revenue record was correct or as suggested by the plaintiff it could only be treated as family arrangement ?” 8. The answer to this substantial question of law has to be answered in the manner that it was a partition of joint family property acted upon since 1966-67 and evidenced by long-standing mutation entries in revenue records. In other words, it was not a temporary oral family arrangement as claimed by the plaintiff. 9. In support of the appeal, learned counsel for the appellant submitted that partition can be reopened on the ground that it was not equal division between the two brothers and therefore, 1st Appellate Court was in error to direct dismissal of the suit. According to learned counsel for the appellant, the division of property between appellant and respondent was merely a family arrangement as orally set out by their father Ganu and, 6 therefore, appeal deserves to be allowed. 10. Learned counsel for the respondent, on the other hand, submitted that arguments advanced on behalf of appellant are contrary to settled legal position. He submitted that plaintiff and defendant had separated since the year 1959 and parties were separate in residence since then and agricultural lands were partitioned between them inasmuch as land survey no. 23 (old) 289 (new) was given in the share of plaintiff Atmaram and land survey no. 25 (old), 209 and 210 (new) was given in the share of defendant Baliram and accordingly, entries in the revenue records were taken which are at exhibits 56, 57, 58, 77 and 78. He submits that entries in revenue records show that plaintiff and defendant were separately cultivating the lands partitioned. 11. Learned counsel for respondent has pressed into service judgment of the Supreme Court in Gangabai and ors v. Frakirgowda and ors reported in Indian Appeals, Vol. LVII 61. The Apex Court in the said case found that there was no allegation that entries in revenue records were made in collusion and the entries were made after public enquiry. The Court observed thus - 7 “..... These entries were made after public inquiry and it is impossible to believe that Somappa would not have heard of them during his lifetime. There was no cross-examination suggesting that the entries were collusive, nor was any evidence led on this point. Bahaguni was nominated to his office by Somappa as his deputy, and was a friend of his. Their Lordships are therefore unable to give any weight to mere suggestions of fraud and collusion based on suspicion without any evidence to support the same. The plaintiff/respondents alleged throughout that the partition was unequal and was therefore improbable, but it seems to their Lordships that, if the partition was improbable, the arrangement of separate enjoyment of the properties unequal in value lasting for a considerable number of years, and the acquiescence in the alienations by Baswantrao and the enjoyment of the property to the same extent by the widow of Baswantrao, is more 8 improbable.” Learned counsel for respondent, thus, contended that since partition was acted upon evidenced by long- standing revenue entries, there was acquiescence on the part of plaintiff and he is estopped from challenging the partition. Learned counsel for respondent has further relied upon Brijraj Singh and anr v. Sheodan Singh and ors reported in Indian Appeals Vol XL 161. The following observations in the said judgment are relevant ： “The claim of the plaintiffs in this action evidently arose from the suggestion of the pleaders whom they consulted after quarrels arose in the family and was based on the fact that the document which evidences the partition is termed a will. It is obvious that such a partition could not have been made by Balwant Singh by will strictly so called. But, as has been already pointed out, the document is much more than a will (if indeed it is in any sense a will at all), for it describes and witnesses to a family arrangement contemporaneously made and acted on by all parties. Every one treated it as such at the 9 time. The mutations of names showed this beyond contro9versy. There is nothing, therefore, in the fact that the document is called a will which invalidates the parties, which was undoubtedly made in fact, and which was acted on by all parties for ten years without any dispute or misunderstanding as to their respective rights under it.” Learned counsel then relied upon Munna Lal (Dead) by LRs and ors v. Suraj Bhan and ors reported in (1975) 1 SCC 556. Paragraph 7 of the judgment, relevant for the present purpose, reads as under : “As regards the second contention that Ex. Y is not binding on defendant No. 1, he not having signed it, the absence of defendant no. 1’s signature on the memorandum of partition will not invalidate the partition effected by the Panch. Besides, as held by the High Court, the conduct of the parties subsequent to the parties shows that the arrangement effected under the guidance of the Panch was mutually accepted and acquiesced in. After the parties, the erstwhile partners began to look after their respective properties separately. The property allotte4d 10 to the share of the plaintiff was in the possession of a tenant but defendants nos. 1 to 3 did not even ask for a share in the rent of the property. It is urged on behalf of the appellant that there is nothing to show that the tenant paid the rent. But, in the absence of any allegation that the tenant had not paid the rent, it would be reasonable to assume that the tenant had not committed default in payment of the rent. Further, taxes in respect of the shop allotted to the share of defendants Nos. 1 to 3 were separately paid by them. Thus the second contention must also fail.” 12. Learned counsel for appellant was unable to contradict these submissions. 13. The 1st Appellate Court appears to have arrived at a correct conclusion in view of the facts and circumstances of the case that even if the family arrangement is assumed to have taken place in the year 1966, the parties accepted and the same can be termed as partition. The acquiescence as to partition is evidenced by entries in revenue records. Considering the fact that there was partition of family property between the parties in the year 1966-67, suit for possession or for 11 reopening of partition in the alternative, ought to have been dismissed by the trial Court since the plaintiff and the defendant were already in possession of their respective share and there was no need for further partition. The conclusion drawn by the 1st Appellate Court that property of the family was partitioned since the year 1966 and it had been acted upon continuously as evidenced by the entries in revenue records, cannot be interfered on the ground raised by learned counsel for appellant that there was merely oral family arrangement of temporary nature. 14. The view taken by the 1st Appellate Court is consistent with the principles of law and the ratio laid down in the aforesaid rulings. There would be no justification to interfere with the impugned judgment and order. Second Appeal is, therefore, dismissed with costs. A.P. BHANGALE, J hsj