-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.271 OF 2000 LETTERS PATENT APPEAL NO.271 OF 2000 LETTERS PATENT APPEAL NO.271 OF 2000 a/w a/w a/w Civil Application No.6124 of 2000 Civil Application No.6124 of 2000 Civil Application No.6124 of 2000 Shantilal Kalyanji Pandya, .. Appellant. Vs 1. Kanchangauri Mahashankar Khoridas, since deceased through his L.Rs: Hansa d/o M.Khoridas, and ors. .. Respondents Mr B.G.Vaidya, for the appellant. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 28/08/2008 DATE : 28/08/2008 DATE : 28/08/2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: (Per B.H.Marlapalle, J.) (Per B.H.Marlapalle, J.) (Per B.H.Marlapalle, J.) 1. This Letters Patent Appeal is directed against the Judgment and order rendered by the learned Single Judge of this Court in First Appeal No.734 of 1985, which arose from the Judgment and order dated 14.8.1985 of the Bombay City Civil Court in Suit No.7942 of 1968. The said suit was dismissed and the order of dismissal of the suit has been confirmed in First Appeal No.734 of 1985. 2. As per the appellant-plaintiff, the suit property, viz. the structure of 20’ x 20’, was an ancestral property and, therefore, he was entitled for 1/2 share in the suit property and the remaining 1/2 share would go to his brother Mahashankar. He, therefore, filed the suit -2- for a declaration that the suit property was an ancestral joint Hindu family property in which he had 1/2 share and that he had a right to worship the idol of the deity Hanuman installed in the temple standing on the said property. He also prayed for partition and separate possession of his 1/2 share in the suit property with a right to perform puja. The defendants were his brother, wife and two daughters. They had filed their written statement and opposed the suit. While admitting that the plaintiff is the brother of Mahashankar, it was contended by the defendants that the suit property was given to Mahashankar by way of gift and it was not the ancestral property. The trial Court framed in all 13 issues and issue nos 1 to 5 were required to be proved by him. The said issues read as under :- (1) Whether the plaintiff proves that the suit property is the ancestral property of the plaintiff? (2) Whether the plaintiff proves that he was the joint owner of the suit property with Mahashankar Khoridas the deceased husband of the defendant and had or has equal half share in the suit property? (3) Whether the plaintiff proves that the suit property is liable to be partition or whether the plaintiff is entitled to half share in the suit property and the income thereof. (4) Whether the plaintiff proves that the defendants have wrongfully let out a portion of the ground floor of the suit property and whether the defendants are liable to pay anything to the -3- plaintiff out of the rent recovered from the tenant or otherwise? (5) Whether the plaintiff proves that the defendant no.1 is liable to be charged rent for the use and occupation of the suit premises by her? 3. Undoubtedly, the burden to prove these issues was on the plaintiff because he claimed that the suit property was the ancestral property and, therefore, prayed partition and possession of his 1/2 share. He could not bring any documentary evidence to support his case that it was an ancestral property. The trial Court, therefore, answered all the five issues against the plaintiff. On the contrary, the trial Court held that the defendants were successful in proving that the Hanuman deity in the suit property was the private property of Naran Saibu and thereafter it was gifted to the deceased Mahashankar. It also held that the defendants proved their status as persons entitled to share property and the plaintiff was in no way concerned with the same. The plaintiff had examined himself and in support of his case he examined two more witnesses, namely Gulabrai Pandya, PW 2, and Shantabai Virani, PW 3. On behalf of the defendants, defendant no.1 had stepped in the witness box. In addition, DW 2 Narayan Ghag and DW 3 Rukminibai Sawant were also examined as the witnesses supporting the defendants’ case. The learned trial court considered the -4- oral depositions as well as the documentary evidence and recorded a finding that the plaintiff could not bring any evidence in support of his contention that the suit property was the ancestral property. The learned Single Judge considered the evidence and held that there were no documents produced on record to establish that the plaintiff is a lineal descend of the original owner of the property and unless the plaintiff had proved this issue he could not have claimed 1/2 share in the suit property on the basis that it was his ancestral property. The learned Single Judge held that there was no such document in support of the plaintiff’s case and, therefore, the findings recorded by the trial Court did not call for any interference. 4. We have heard Mr Vaidya at length, gone through the oral depositions of all the six witnesses and the reasoning set out by the trial Court in support of its findings on all the 12 issues framed. We are satisfied that the learned Single Judge was right in dismissing First Appeal No.734 of 1985. Hence, this Appeal fails and the same is hereby dismissed. Rule stands discharged. 5. Civil Application No.6124 of 2000 does not survive and the same stands disposed off. -5- (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) HIGH COURT HIGH COURT HIGH COURT CIVILI APPELLATE SIDE CIVILI APPELLATE SIDE CIVILI APPELLATE SIDE LETTERS PATENT APPEAL NO.271 OF 2000 LETTERS PATENT APPEAL NO.271 OF 2000 LETTERS PATENT APPEAL NO.271 OF 2000 a/w a/w a/w Civil Application No.6124 of 2000 Civil Application No.6124 of 2000 Civil Application No.6124 of 2000 Date of Judgment: Date of Judgment: Date of Judgment: 28th 28th 28th August,2008 August,2008 August,2008 For approval and signature For approval and signature For approval and signature THE HON’BLE MR.JUSTICE B.H.MARLAPALLE THE HON’BLE MR.JUSTICE B.H.MARLAPALLE THE HON’BLE MR.JUSTICE B.H.MARLAPALLE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges? 6. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur Aurangabad or Goa offices?