1 S.A 364/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 364/2011 1 Jalindar s/o Vinayak Pandharkar, Age : 40 years, Occu. Agriculture. 2 Smt. Saraswatibai w/o Vinayak Pandharkar, Age : 69 years, Occ. Household. Both R/o Pimpalgaon Pisa, Tq. Shrigonda, Dist. Ahmednagar. ...Appellants. (Ori. Plaintiffs). Versus 1 Laxman s/o Shivaji Pandharkar, Age : 38 years, Occ. Agriculture. 2 Bajirao s/o Shivaji Pandharkar, Age : 36 yeas, Occu. Agriculture. Both R/o Pimpalgaon Pisa, Tq. Shrigonda, Dist. Ahmednagar ...Respondents. (Original defendants.) Mr. V.D. Hon, Advocate for the applicant. Mr. R.K. Temkar, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 12th October, 2011. ORAL JUDGMENT: 1. This second appeal is filed against the judgment and order dated 29/01/2011 passed by learned District Judge-6, Ahmednagar in R.C.A. No. 28/2008. The appellant was the plaintiff and the impugned judgment dismissed his suit for declaration, partition etc.. The facts leading to the litigation in short can be stated as under. 2. One Ramji was the common ancestral of the parties to the suit. He had two sons Laxman and Savlaram. Babhai was the last 2 S.A 364/2011 descendant of Laxman’s branch. The appellants came with a case that during the life time of Ramji, no partition of the ancestral property was effected but the entire property was mutated in the name of Laxman who was the elder son. They say that even after Laxman’s death, no partition took place between the members of the joint family and ultimately Babhai the daughter in law of Laxman was shown owner of the ancestral joint family property. They said that Babhai died in 1985. They also said that due to certain events that took place in the life time of Babhai, the suit property was unequally distributed amongst two factions of Savlaram’s branch and so they filed suit for partition. 3. The respondents came with a case and proved on facts that the suit property was never joint family property. It was the share of Laxman which he received during his life time in partition. They therefore, proved that the suit property did not belong to Savlaram’s branch. They thereafter, said and proved successfully that Babhai being the last descendant of Laxman’s branch, during her life time distributed the suit land between the two factions of Savlaram’s branch. One faction was represented by Shivaji the father of the respondents and the other faction was represented by Vinayak the father of the appellant no.1 and his mother Saraswatibai. They proved that during the life time of Babhai in 1985, made a representation to revenue authorities that her property should be divided between appellant No.1 and the respondents No.1 and 2. She requested the revenue authority to mutate 1/4th of her property in the name of appellant No.1 and further requested to mutate the remaining 3/4th property in the names of Shivaji the father of respondents No.1 and 2. 3 S.A 364/2011 She apparently preferred Shivaji to have larger share in her property whereas she gave only 1/4th share to appellant No.1. The Courts below held that this was done long back in 1985 when appellant No.1 was major and had understood the implication of such unequal distribution. It so happened that soon thereafter part of the property which belong to Babhai earlier was acquired for irrigation project. In order to claim compensation, appellant No.1 and respondents No.1 and 2 jointly made an application in which they represented that appellant No.1 had only 1/4th share in Babhai’s property. On the basis of such representation, appellant No.1 received certain amount as compensation. This position continued for next 15 years or so and in 2000, the appellant filed this suit. 4. The learned judge of appellate court held that the suit was not filed within limitation. The Learned counsel appearing for the appellant could not satisfy me as to why this finding of the learned judge of the appellate Court was wrong. Assuming that Babhai could not have lawfully distributed her property in this fashion amongst the parties to the suit because she did not execute registered deed for effecting such transfer and so the appellants had ample opportunity to challenge such distribution soon after Babhai’s death. They could have filed suit for general partition on the ground that since Babhai died intestate, her property would be devolved on all the members of Savlaram’s branch. If this was not done within 12 years, the appellant lost limitation for filing of said suit. Due to apparently illegal transfer of this property and since it is proved that soon after such transfer, the respondents’ father took possession of the property, his possession became adverse to the appellants. They therefore, could 4 S.A 364/2011 have filed a suit for partition within 12 years from 1985. Since this was not done, learned judge of the first appellate Court rightly held that the suit was barred by limitation. The appeal should therefore fail. ORDER The appeal is dismissed. [A.V. NIRGUDE,J.] ts k/Oct.2011/12th/sa364.11ok