1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE SECOND APPEAL NO.703 OF 2007 Sayajirao T.Ghorpade .. Appellant V/s Malojirao T.Ghorpade & Ors. .. Respondents Mr.P.R.Arjunwadkar i/by Mrs.P.U.Badadare for the Appellant. Mr.Siddharth Ronghe for Respondent Nos.1(b) & 1(c). Mr.Vijay Killedar for Respondent No.3. CORAM: R.G.KETKAR, J. DATE: 8th July, 2010. P.C.: 1. This appeal is preferred by the Appellant-original Defendant No.2 challenging the judgment and decree dated 4th October, 2006 passed by the learned District Judge-I, Ichalkaranji in regular Civil Appeal No.281 of 2005 arising out of judgment and decree dated 5th April, 2005 passed by the learned Second Joint Civil Judge, Junior Division, Ichalkaranji in regular civil suit No.192 of 1996. 2. By the impugned judgment, the Courts below decreed the suit instituted by the Respondent No.1-original plaintiff for partition and separate possession of the immovable properties. The parties shall be referred hereinafter as per their original status in the trial Court. 3. The plaintiffs instituted the suit interalia contending that the Defendant Nos.1 to 3 are his step brothers and the properties mentioned in paragraph Nos.1-A & 1-B of the plaint are the ancestral properties. During the life time of their father, the partition deed was made on 13th March, 1965. However, in the proceedings before the High Court, this Court declared the partition unequal. It is the specific case of the plaintiffs that there was no partition of the suit property by metes and bounds and accordingly, the present suit was instituted for partition and separate possession of his 1/4th share in the properties. 2 4. Defendant Nos.1 and 3 filed written statement and admitted the genealogy. They supported substantially the case of the plaintiffs that there is no partition. They also claimed for partition of the suit property and separate possession of their 1/4th share. They amended the written statement and contended that the suit property is in possession of the plaintiffs and Defendant No.2 and the Defendant No.2 is not giving any share in the income of the properties in his possession and therefore, prayed for mesne profit from 1979. Defendant No.2 had filed say at Exh.22 to the temporary injunction application and by passing pursis at Exh.77 he has adopted the same as his written statement. The Defendant No.2 contended that the suit for partition is not maintainable as the partition was effected in the year 1965 between the plaintiff and Defendants 1, 2 and 3. To that effect Mutation Entry No.4640 was made. The partition was effected by means of partition deed which is registered and pursuant thereto, the parties are in separate possession of their respective shares. Their names were recorded in 7/12 extract. It was also contended that when their father died in the year 1979, there was partition between the plaintiff and the Defendants. He also opposed grant of injunction on the ground that he alienated certain lands. Finally it was contended that the suit was not within limitation. 5. The parties led oral as well as documentary evidence. The learned trial Judge by the judgment and decree dated 5th April, 2005 decreed the suit and declared that the plaintiff as also the Defendant Nos.1 to 3 have 1/4th share each in the suit properties and are entitled to separate possession. The learned trial Judge further held that the Defendant Nos.1 & 3 are entitled to mesne profit from 18th June, 1996 till the delivery of possession of the suit properties. Aggrieved by this decision, . The Defendant No.2 preferred appeal, which was dismissed. Against these decisions, the plaintiff has preferred this second appeal. 6. In support of this appeal, Mr.Arjunwadkar, learned counsel raised the following contentions: (i) The partition was effected between the parties in the year 1965 and 3 pursuant thereto, the parties are in separate possession of their respective shares. Hence suit for partition is not maintainable. (ii) Defendant No.2 was not a party in Special Civil Application No.1512 of 1973 and therefore, judgment dated 13th August, 1974 rendered by this Court is not binding on the plaintiff. (iii) At any rate, after the death of their father in 1979, there was partition among the parties and therefore, the suit for partition is not maintainable. (iv) The suit is barred by limitation as it is not filed within 12 years from the date of the decision of the High Court. 7. On the other hand Mr.Ronghe, learned counsel for Respondent Nos.1(b) and 1(c), and Mr. Killedar, learned counsel for Respondent No.3 supported the impugned judgment and the decree. I heard learned counsel for the parties at length. 8. It is the case of the Defendant No.2 that the partition was effected in the year 1965 and to that effect deed of partition dated 13th March, 1965 was registered. At any rate, after the death of their father in the year 1979 there was partition. Hence the suit for partition is not maintainable. 9. I do not find substance in this submission. In the first place, in the earlier round of litigation viz.Special Civil Application No.1512 of 1973 Defendant No.3 Sambhajirao had initiated proceedings for possession of land bearing Survey No.80/1 u/s.43-1B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short Act). The said application was made on 17th April, 1965 after terminating the tenancy and after serving notice as required. Sambhajirao claimed to be landlord as contemplated u/s.43-1A of the Act. In other words, he claimed to be the serving member of the Armed Forces. It was his specific case that the land in dispute was part of the joint family property and the partition was effected between the father and his three brothers on 13th March, 1965 when the land in dispute was allotted to his share. He filed application for possession of the land in dispute for personal cultivation. The Respondent tenant denied that there was any partition in the family on 13th March, 1965 or that the land in question had fallen to 4 the share of Sambhajirao or that he was his landlord. In that case, Sambhajirao’s application was allowed by the Deputy Collector. On revision, the order of the Deputy Collector was set aside by the Commissioner. The Deputy Collector was directed to find out whether the partition alleged to have been effected on 13th March, 1965 conformed with clause (b) of Section 43-1B (1) of the Act. The Deputy Collector in turn directed the Mamlatdar to certify the finding about partition after holding necessary inquiry. The Mamlatdar held the equiry and certified its finding to the Deputy Collector to the effect that the partition was in fact effected and the said partition was genuine. It was further recorded that the partition conformed with the requirements of clause (b) of Section 43-1B(1). However, on revision by the Respondent tenant, the said order was set aside by the Commissioner. 10.In paragraph No.3 of the judgment of this Court it was observed that the Commissioner could not confirm the finding of the Deputy Collector because he concluded that the partition relied on by Sambhaji was merely a paper partition and was merely set up so as to avoid the impact of the provisions of the Act and seek benefit of amended provisions in Chapter III AA thereof, which was enacted for the benefit of the persons employed in the Armed forces. This Court considered whether the partition was a fact or was sham or bogus affair. The Commissioner on the basis of the evidence on record found that it was sham or bogus affair. In support of this conclusion, he referred to several circumstances, one of them being that the father was administering the estate till his death in 1970 inspite of the so called partition of 13th March, 1965. It was also observed that the shares allotted to five members of the family were also not apparently equal. The Commissioner also held that the partition was ineffective as the Respondent tenant had become statutory purchaser of the land on 1st April, 1957. On these among other grounds ultimately this Court confirmed the finding of the Commissioner that the alleged partition dated 13th March, 1965 was not genuine. 11.Mr.Arjunwadkar submitted that the Defendant No.2 was not party to the 5 said proceedings and consequently, the same is not binding on him. In support of his submission, he relied upon the judgment of the Apex Court in the case of M/s.Balaji Property & Developers V/s. The Church of St.Matias & Ors., 2010 (3) ALL M.R.62 and in particular paragraphs 20 and 21 thereof. I do not find any substance in this submission. In the first place, the status of the family was gone into in detail by the Commissioner and after appreciating the evidence on record, he came to the conclusion that the partition was merely on paper and with a view to obtaining the benefit of the provisions of the Act. Once the status of the family is determined, it cannot be said that it is not binding on one of the family members. Secondly, the Courts below on appreciation of evidence on record came to the conclusion that in fact there was no partition in the family in 1965. This aspect is to be found in paragraph No.11 of the judgment of the Appellate Court wherein it is recorded that the entries in the record of rights at Exh.94 to 98 show the Aanevari of plaintiff and the Defendants. Mere recording of Aanevari in the record of rights does not prove the partition of the joint family properties. 12.In so far as the contention that at any rate after the death of father in the year 1979 there was partition, the said contention apparently was not raised in the Courts below. However, in the cross-examination of Defendant No.2 he tried to make out the case that the partition was effected sometime in 1980-1982. Subsequently he changed that version and deposed that he could not tell who is in possession of that deed. This aspect is considered by the Appellate Court in paragraph No.11 of the judgment wherein it is observed that Sayajirao admitted in his cross-examination in the year 1980-82 that the deed of partition was executed and that document is in possession of the plaintiff. The said document has neither been filed nor proved by Defendant No.2 to show that after the death of their father in 1979 the partition was effected. That apart, even the deed of partition dated 13th March, 1965 was not produced on record. I therefore find no substance in the contention raised on behalf of Defendant No.2 that in the year 1979 after the death of their father, the partition was effected. Suffice 6 is it to say that the Defendant No.2 is not even sure as to when the partition was effected in the family. 13.Finally it was submitted that the suit is barred by limitation as it was not filed within 12 years from the decision of the High Court in Special Civil Application No.1512 of 1973. The Courts below on appreciation of evidence held that the Defendant No.2 did not establish theory of ouster and consequently, the suit claim is well within the limitation having regard to Article 110 of the Limitation Act. I do not find that the courts below committed any error in that regard. In the result, appeal is devoid of substance. It does not involve any substantial question of law and hence, the same is dismissed with no order as to costs. 14.In view of dismissal of the Appeal, nothing survives in the Civil Application No.582 of 2007, and the same also stands dismissed with no order as to costs. 15.On the oral application made by Mr.Arjunwadkar, operation of this order will remain stayed for a period of six weeks from today. (R.G.KETKAR, J.)