1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Second Appeal No.869 of 2004 Shri Bhimaji Jijaba Katore & ors. Appellants Vs. Smt.Laxmibai Nana Katore & ors. Respondents Mr.P.S.Dani for appellants. Mr.N.R.Bubna for respondent nos.1 and 2. CORAM: B.H.MARLAPALLE, J. April 17, 2007. P.C. 1. Heard Mr.Dani, the learned counsel for the appellants - original defendants and Mr. Bubna, the learned counsel for the respondents - original plaintiffs. this second appeal arises from the decree of partition passed by the learned Civil Judge, Junior Division at Khed dated 7/2/1997 in Regular Civil Suit No.128 of 1986 and confirmed by the learned District Judge at Pune vide his judgment and order dated 6/3/2002 by dismissing Civil Appeal No.291 of 1997. 2. The plaintiffs and the defendants had a common ancestor by name Punaji Katore. Punaji had two sons viz. Savlaram and Shivram. Savlaram begot one son by name Nana whereas Shivram also begot one son by name Revaji. When the Suit was filed Nana was not 2 alive and, therefore, it was filed by his wife Laxmibai, son Bandu as plaintiff no.2 and daughter Janabai as plaintiff no.3. The relief prayed for in the suit was of declaration as well as partition and separate possession of 1/2 share in the suit lands described in para 1 of the plaint and also the mesne profits. The suit lands referred in para 1 of the plaint are as under: Sr. Survey No. Area No. H. R. ------------------------------- 1. 1180/2 2.15.5 2. 1180/6 1.08 3. 1181/1 0.94 4. 1181/4 0.18 5. 1181/6 4.24 0.05 6. 1182/1 4.28 7. 1184/6 4.44 8. 1185/1 1.16 9. 1185/4 0.38 3 10. 1185/6 0.40 11. 1185/7 0.25.8 12. 1186/2 0.92 13. 1186/4 0.32 14. 1186/5 0.08 15. 1186/7 0.46 ----------------------------- 3. It was pointed out by the plaintiffs that Punaji died on 1/10/1952 and on his demise his two sons Savlaram and Shivram succeeded to the agricultural land which was in possession of Punaji as the owner as well as the tenant and the tenanted lands were Survey Nos.1184/6, 1186/5, 1181/1, 1181/4 and 1181/6. Defendant Nos.1 to 6 were the children of Revaji whereas defendant no.7 was the LR of the land owner in Survey No.1184/6, defendant no.8 was the LR of the land owner in Survey No.1186/5 and defendant no.9 was the LR of the land owner in Survey Nos.1181/1, 1181/4 and 1181/6. The plaintiffs further submitted that the land in Survey No.1181/1 was purchased vide sale deed at Exhibit 72 dated 17/1/1957. The plaintiffs further pointed out that while Savlaram and Shivram formed a joint family and were cultivating the suit lands jointly Savlaram died 4 1962 whereas the younger brother Shivram had predeceased him and, therefore, on the demise of Shivram, Savlaram and Revaji formed a joint family. However Revaji also died in 1966. At this stage it is relevant to note that Savlaram’s son - Nana also predeceased him and, therefore, Savlaram continued as the Karta of the family with his grandchildren, Revaji and his children but on the demise of Savlaram as well as REvaji, it was plaintiff no.1, her two children i.e. plaintiff nos.2 and 3 and the children of Revaji formed joint family and admittedly at no point of time there was any partition of the family property. Plaintiff no.1 along with her two children represented the branch of Savlaram and the defendants through their father Revaji represented the branch of Shivram. Under these circumstances the plaintiffs prayed for half share in the suit property originally held by Punaji and subsequently jointly by Savlaram and Shivram. 4. While opposing the suit by filing Written Statement at Exhibit 15 the defendant nos.1 to 6 had denied the claim of the plaintiffs including the fact that Savlaram and Shivram were the members of the joint family. They had claimed that the entire suit 5 properties were in their possession and cultivation since the time of their grandfather Shivram and, therefore, the plaintiffs did not have any share in the suit land. They also stated that the plaintiffs were residing in village Tinhewadi whereas the properties were at village Malegaon. Defendant no.7 did not appear and, therefore, the suit proceeded ex-parte and in view of the pursis filed at Exhibit 24 the names of defendant nos.8 and 9 came to be deleted. During the pendency of the suit, defendant nos.1 and 2 died and, therefore, their LRs were brought on record and as per the pursis filed at Exhibits 23 and 45 they adopted the Written Statement at Exhibit 15. 5. On behalf of the plaintiffs PW 1 Janabai and PW 2 Nivrutti were examined whereas defendants examined DW 1 Kisan and DW 2 Bhimaji. Number of documents were placed on record by the respective parties like the 7/12 extracts, Form No.8A, the payment challans, letter of Tahsildar, Khed etc. It was not in dispute between the parties as noted earlier, that the suit lands in Survey Nos. 1184/6, 1181/5, 1181/1, 1181/4, 1181/6 were the tenanted properties initially. On considering the respective 6 averments and the evidence adduced by them the trial Court held that the plaintiffs had half share in the suit properties and the tenanted lands were also joint family properties and consequently the suit was decreed. These findings recorded by the trial Court have been confirmed by the lower Appellate Court by a detailed reasoning. Mutation entry at Exhibit 89 was sanctioned in the year 1949 and it mentioned that one Maruti Punaji Katore died 15 years prior to 1949 and the property was shown to be inherited by his nephew Revaji and by his brother Savlaram. Obviously Punaji had a third son by name Maruti. Another mutation entry was sanctioned in 1953 after the demise of Punaji. Savlaram died on 1/10/1962 while his son was not alive. The mutation entry at Exhibit 91 related to the tenanted lands and it was certified in 1961. It stated that Shivram died 12 years back and, therefore, the lands were transferred in the names of his successors. Savlaram and Shivram were shown in joint possession of the tenanted properties along with their father right from 10/11/1948. The record meticulously examined by the lower Appellate Court also shows that in the year 1968 the proceedings under Section 32-G under the Bombay Tenancy Act were concluded and the purchase price of the land was 7 fixed in the name of Revaji and Bandu. This clearly indicated that Shivram and Savlaram were represented by their respective son and grandson. Savlaram’s branch was represented through Bandu and Shivram’s branch was represented through Revaji. Mr.Dani, the learned counsel submitted that the tenanted land could not be subjected to partition and he also referred to the provisions of Section 6 of the Hindu Succession Act, 1956. As per him the joint family property was required to be devolved by survivorship upon all the surviving male members of the coparcenery. This submission cannot be accepted. Punaji died in 1952 and his younger son Shivram predeceased him. Thus on the death of Punaji the family property was succeeded by Savlaram and Revaji jointly and thereafter the two branches were represented by Bandu on the one hand and by Revaji on the other hand. The provisions of Section 6 of the Hindu Succession Act, 1956 cannot be relied on in the facts of this case. 6. The fact finding recorded by the Courts below concurrently are on the basis of the reasoning appreciating the evidence, both documentary as well as oral, placed before the trial Court related to the 8 joint family property owned by the family as well as the tenanted property and as per Section 27 of the Bombay Tenancy Act the tenants of the heirs have the right for claiming their share for cultivation. Thus this Second Appeal does not involve any substantial question of law that calls for consideration and, therefore, the appeal fails at the threshold. The same is hereby dismissed. (B.H.MARL