1 SA790/04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 790 OF 2004 Bhaskar Totaram Patil, Age 63 years, Occupation Agriculture, Resident of Waghali, Taluka Chalisgaon, District Jalgaon (Deceased), through Legal Representatives : Appellants 1 Parvatibai w/o Bhaskar Patil, Age 65 years, Occ. Household, 2 Jijabrao Bhaskar Patil, Age 48 years, Occ. Service, r/o near Bhushan Mangal Karyalaya, Chalisgaon, District Jalgaon 3 Arun Bhaskar Patil, Age 42 years, Occ. Agriculture, 4 Subhash Bhaskar Patil, Age 35 years, Occ. Agriculture, 5 Sharad Bhaskar Patil, Age 30 years, Occ. Service, Nos. 1, 3 to 5 r/o Waghali, Taluka Chalisgaon, District Jalgaon 6 Shobhabai Jagannath Patil, Age 38 years, Occ. Household, R/o Kankharaj, Taluka Parola, District Jalgaon 7 Surekhabai Bhayyasaheb Patil, Age 32 years, Occ. Household, R/o Chikhawad, Taluka Malegaon, District Nasik 8 Mayawatibai Prakash Patil, Age 34 years, Occ. Household, R/o Betawad, Taluka Shindkheda, District Dhule V E R S U S Pradeep Shivdas Patil, Age 33 years, Occupation Money lender, R/o Waghali, Taluka Chalisgaon, District Jalgaon Respondent Shri V.D. Hon, Advocate for the appellant Shri P.B. Patil, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 19th July, 2011 ORAL JUDGMENT : 1. By consent this appeal is heard finally after the same was remanded back to this court by the Supreme Court. 2. The appellant / plaintiff is challenging the concurrent findings of the Courts below that he could not prove that the suit house, described in the plaint, fell to his share in the family partition. After perusal of the pleadings, 2 SA790/04 the evidence, the impugned Judgments and after hearing the submissions of learned counsel appearing for the parties, following substantial question of law arose for my consideration : “Whether the finding of the Court below was perverse on the question as to whether the suit house fell to the share of appellant / plaintiff ?” With the help of learned counsel appearing for the parties, I went through the pleadings, evidence and the impugned Judgments. 3. The case of the appellant / plaintiff was as under : He said that the suit house bearing CTS No. 1529 of village Waghali, Taluka Chalisgaon, District Jalgaon fell to his share in the family partition, which occurred sometime prior to 1979. He has given detail description of the suit house in the plaint. He also said that this house was part of a large property bearing Gram Panchayat House No. 222. He said, in the partition, he was allotted western portion of this large house to the extent of 1/3rd share (in this regard, the plaint erroneously mentioned that he was allotted 1/3rd southern portion of the house, but this was nobody's case). He said that although this house was given to his share and it acquired an independent identity, he could not occupy the same, because his brother Shivdas occupied it since prior to the partition. He said, after his brother’s demise, the respondent (his son) is occupying the same. He said, when he demanded possession of the same, the respondent / defendant denied his demand, and so, the suit was filed. 4. The respondent/defendant admitted that there occurred family partition between the appellant/plaintiff and his brothers and that he even admitted the contents of the partition-deed. He however asserted that the suit house is in his possession, and prior to him, in his father’s possession 3 SA790/04 for more than 20 years. He further asserted that his father made several improvements and developments in it, and in view of this, his father and then him had acquired title by adverse possession. In addition to this, he also asserted that the suit was bad for non-joinder of third brother Devidas. 5. At the trial stage, as said above, the deed of partition was brought on record and was exhibited because the parties admitted contents of the same. After careful perusal of the same, it is found that at the time of partition, the appellant/plaintiff and his brothers Devidas and Shivdas agreed to have equal shares in Gram Panchayat House No. 222. It was agreed that the appellant/plaintiff would get western side 1/3rd share. Pursuant to the partition, Gram Panchayat House No. 222 was divided by metes and bounds. Unfortunately it seems, it was divided only in two parts; one on the west was given CTS No. 1529 and the other on the east side was given CTS No. 1528. These two shares of the original house are not equal; one admeasures about 43 square meter and the other admeasures about 62 square meter. The extracts of city survey of the property also came on record to show this position. The city survey extract of property bearing CTS No. 1529 shows that it belonged to the appellant/plaintiff. Whereas property CTS No. 1528 is shown to be the property belonging to Devidas. Apparently, the respondent/defendant’s father Shivdas did not get any share in Gram Panchayat House No. 222. (these observations are made on the basis of pleadings and record of this case and without hearing Devidas on it). 6. It can therefore be concluded that pursuant to the partition, the joint family property bearing Gram Panchayat House No. 222 was divided by metes and bounds and property CTS No. 1529 was given to the share of appellant / plaintiff. The learned Judges of the lower Court apparently could 4 SA790/04 not realize this factual aspect of the case and they made several observations which are contrary to the evidence on record, and therefore those conclusions are perverse. 7. The appellant/plaintiff thus proved that the suit house which he described in the plaint as CTS No. 1529 is the portion of original Gram Panchayat House No. 222 which fell to his share. 8. As against this, the respondent/defendant apparently did not take proper defence. His defence that he was occupying the house since last 20 years and his possession was adverse etc has not been accepted by the Courts below and I find no error in such finding. As said above, till 1979, the property was joint family property. It was divided by metes and bounds only in 1979, and thereafter, in 1994, the suit was filed for possession of the property. The Courts below held that the possession of respondent/defendant could not said to be adverse, because he admittedly was nephew of the appellant/plaintiff. 9. The respondent/defendant could have taken a defence that the original ancestral property Gram Panchayat House No. 222 was not divided properly at the time of its division by metes and bounds, and so, the same should be divided as per the terms of the partition-deed. He did not take this stand at all. In view of this, the suit of the appellant/plaintiff should succeed and deserves to be decreed, as prayed for. ORDER The appeal is allowed. The impugned Judgments are set aside. The suit is decreed. The respondent / defendant should vacate the suit house bearing CTS No. 1529 and hand it over to the appellant / plaintiff. As mentioned above, the respondent / defendant has still an opportunity to seek re-division of the original ancestral house bearing Gram Panchayat No. 222 as per the 5 SA790/04 terms of the partition-deed. The respondent/defendant is given liberty to take appropriate legal action to get the said property once again divided by metes and bounds as per the terms of the partition-deed, subject to law of limitation. ( A.V. NIRGUDE, J. ) SRM/sa/790/04/19/7/11/ok