1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.934 OF 2008 WITH CIVIL APPLICATION NO.13548 OF 2008 Rangnath s/o Laxman Potbhare, R/o-Mhada Colony, Babhalgaon Road, Latur, Dist-Latur. ...APPELLANT. VERSUS 1) Gangaram s/o Laxman Potbhare, R/o-Manjri, Tq. & Dist-Latur, At present serving in Collector Office, Latur. 2) Smt. Kesharbai w/o Namdeo Potbhare, R/o-Gandhi Nagar, Latur. 3) Damu s/o Laxman Potbhare, R/o-Cloth Mill, Latur. ...RESPONDENTS. .... Mr. Arun Dalal Advocate h/f. Mr. V.D. Salunke Advocate for the Appellant. Mr. S.P. Urgunde Advocate for Respondent No.1. Mr.S.P. Chapalgaonkar Advocate for Respondent No.2 None present for Respondent No.3. .... CORAM: K.K. TATED, J. ORDER RESERVED ON : 24TH JUNE, 2009 ORDER PRONOUNCED ON : 6TH JULY, 2009 . 2 ORDER: 1. Heard learned counsel for the respective parties. 2. The present Second Appeal is preferred by the original defendant No.1 challenging the Judgment and decree dated 6th October, 2008 passed by Ad-hoc District Judge-2, Latur in Regular Civil Appeal No. 220 of 2005 arising out of the Judgment and decree dated 28th September, 2005 passed by IInd Joint Civil Judge, Senior Division, Latur in Regular Civil Suit No.533 of 2004. Respondent No.1 is original plaintiff and Respondent Nos. 2 and 3 are original defendant Nos. 2 and 3 respectively. Hereinafter the parties will be referred to as they were referred to in the trial Court. 3. The plaintiff filed Regular Civil Suit No. 533 of 2004 in the Court of Civil Judge, Senior Division, Latur for partition and separate possession of ancestral property. It is the case of the plaintiff that Laxman Yadav Potbhare was the father of the plaintiff and defendant Nos. 1, 3 and 3 deceased Namdeo. All were forming Joint Hindu Family. During the life time, Laxman was acting as Karta of the Hindu United Family (for short "H.U.F."). The plaintiff and his family originally hail from Manjari, Taluka and Dist-Latur. It is the case of the plaintiff that plaintiff and defendants owned and possessed the agricultural lands at village Chincholi (B), Tq. & Dist-Latur. Due to the division of work and services, all members of H.U.F. had started residing at different places but there was no severance of status of Joint Hindu family. It is the case of the plaintiff that the defendant No.1 was the helping member to the father of plaintiff and therefore he was lovable and affectionate member in the family. Defendant No.1 being elder, was assisting the father in his work. During the life time of the father, the joint family had purchased the agricultural land admeasuring 1 Hector 35 R's situated at Chincholi (B) in the name of defendant No.1 for the consideration of Rs.2000/-, by sale deed dated 6th April, 1979 and on the same day, adjacent land from Gut No.209 to the extent of 1 Acre 26 Gunthas was purchased in the name of 4 defendant No.1. Both the sale deeds were duly registered in the name of defendant No.1 only. Joint family also purchased 60 R's of land from and out of Block No.210 and 60 R's land from Block No.209 of village Chincholi on 30th January, 1980 in the name of father - Laxman Yadav and plaintiff and defendant No.1 and 3. One plot of land adjacent to the Block No.209 and 210 was also purchased in the name of plaintiff in the year 1980. All these lands were purchased within the span of 8 to 9 months. The plaintiff stated that all these lands were purchased from joint family funds but for the sake of convenience two lands were purchased in the name of defendant No.1, three lands were purchased in the name of their father and one piece of land was purchased in the name of plaintiff. The plaintiff and defendant No.1 managed the lands by giving them to others for cultivation as they are having no agricultural equipments. After the harvest, agricultural produce were being given equally to all plaintiff and defendants. In the year 2004 the defendant No.1 denied 1/4th equal share to the plaintiff and therefore plaintiff requested to 5 effect partition of the suit land so as to get every body his 1/4th share. Initially the defendant No.1 avoided the same by putting forward some excuse and finally denied to partition the land. Therefore, the plaintiff filed Regular Civil Suit No.533 of 2004 in the Court of Civil Judge, Senior Division, Latur for partition and separate possession of his ancestral properties as described herein above. 4. In the said Suit, the defendant No.1 filed his written statement cum counter claim dated 22nd November, 2004 and denied the claim of the plaintiff. It is the case of the defendant No.1 that he purchased the plot of land by two sale deeds dated 6th April, 1979 with his own funds and therefore both the properties involved in sale deeds dated 6th April, 1979 are his self acquired properties. In the counter claim, the defendant No.1 prayed that: "(a) The plaintiff, his agents, servants or anybody claiming through him may kindly be restrained by an order of perpetual injunction for not to obstruct 6 in the peaceful possession of deft. no.1 over 02 H. 01 R. out of gat no.209 & 210 at village Chincholi (B), Tq. & Dist- Latur. (b) The deft. no.1 may kindly be declared as owner of 0.66 R. portion out of gat no.209 and adm. 01 H. 35 R. portion out of gat no.210 of village Chincholi (B), Tq. & Dist-Latur." 5. In this way, the defendant No.1 opposed the prayers in Regular Civil Suit No.533 of 2004, whereas the other defendants supported the claim of the plaintiff. After considering the evidence on record and depositions of the witnesses, the trial Court held that the plaintiff proved that the suit lands are joint family property and all H.U.F. members are entitled to 1/4th share each in the suit lands. 6. Being aggrieved by the said Judgment and decree dated 28th September, 2005 passed by IInd Joint Civil Judge, Senior Division, Latur, the defendant No.1 preferred Regular Civil Appeal No.220 of 2005 on the ground that the trial Court has 7 committed an error in deciding the material aspect of the case that the defendant No.1 is the owner and possessor of 5 Acres of land and after demise of father 1 Hector and 20 R's of land was mutated in the name of four brothers. It means the defendant No.1 has received 30 R's of land in Block No.210 and 15 R's of land in Gut No.209. So the defendant No.1 is the owner of total 5 Acres and 46 Gunthas of land and remaining 4 acres and 35 Gunthas of land was to be distributed in three brothers. The first appellate Court framed following Points in Regular Civil Appeal No.220 of 2005: POINTS FINDINGS 1) Whether appellant proves that, land Gat No.210 and 209 situated at village Chincholi B., measuring 2 Hectare 1 Are, through sale deeds dated 06.04.1979 are his separate and self acquired property? Negative. 2) Whether the respondents prove that, the suit lands are joint family properties? Affirmative. 3) Whether plaintiff is entitled to share in the suit properties? Affirmative. 8 4) Whether the appellant is entitled for declaration and perpetual injunction as sought in counter claim? Negative. 5) Whether impugned judgment and decree is improper, incorrect and is liable to be set aside? Negative. 6) What order? As per final order. 7. The first appellate Court categorically held that the defendant No.1 failed to prove that the land Gut No.210 and 209 situated at village Chincholi B., measuring 2 Hector 1 R through sale deeds dated 6th April, 1979 are his separate and self acquired property. The first appellate Court also held that plaintiff and defendant Nos. 2 and 3 are entitled to share in the suit property i.e. 11 Acres of land in all. 8. Being dissatisfied with the Judgment and decree dated 6th October, 2008 passed by Ad-hoc District Judge-2, Latur in Regular Civil Appeal No. 220 of 2005, the defendant No.1 filed the present 9 Second Appeal on the ground that, the Courts below failed to appreciate that plaintiff's joint family cannot acquire any joint family property as the said family was not having any source of income nor the family was having any ancestral property through which they could acquire joint family property. The defendant No.1 further submitted that both the Courts below should have appreciated that defendant No.1 has purchased two properties after 17 years from the date on which he started living separately from his family. On the basis of these facts, learned counsel appearing on behalf of the defendant No.1 submitted that this is a fit case to entertain on merits. 9. It is the contention of learned counsel appearing on behalf of the defendant No.1 that defendant No.1 purchased two piece of lands by sale deeds dated 6th April, 1979 from his own funds. He further submitted that as the plaintiff failed to adduce any evidence to show that joint family had any source of income and/or they contributed in purchasing two pieces of lands by sale deeds dated 10 6th April, 1979, both the Courts should have held that those properties were purchased by defendant No.1 from his own source of income. 10. After going through the Record and Proceedings and particularly the deposition of defendant No.1, I do not find any material on record for coming to the conclusion that the defendant No.1 purchased these two piece of lands from his own source of income. In his evidence the defendant No.1 nowhere stated that how he made the payment to the owner of those two plots of land. Exhibit 53 is the sale deed dated 6th April, 1979 in respect of land from Gut No.210. After carefully scrutinizing the said sale deed dated 6th April, 1979, it is clear that the consideration of Rs.2000/- was not paid at a time and/or at the time of executing the said document. It is specifically stated by the seller in this sale deed that he received consideration in parts from time to time for his home expenses. It is also stated in this sale deed that the possession of the suit land was handed over by the seller much before executing the said sale deed. Similar are the 11 facts in respect of another sale deed dated 6th April, 1979 in respect of land from Gut No.209. This shows that seller of these two plots of land received payment from purchaser from time to time and in parts. Apart from this documentary evidence, there is not an iota of evidence on record for coming to the conclusion that defendant No.1 purchased these two plots of land from his own source of income. On the other hand the plaintiff as well as defendant Nos. 2 and 3 specifically deposed in their deposition that these two plots of lands were purchased from HUF funds. They also stated that defendant No.1 being an elder son and used to help the father from time to time in agricultural operations, out of love and affection, these two plots of lands were purchased in the name of defendant No.1. Apart from this, other four plots of lands purchased by Joint Hindu Family during the period 1979-80 were next to each other. This itself shows that the intention of the members of H.U.F. that they would purchase the properties adjacent to each other, so that in future there would not be any problem for distribution of the lands among the 12 members of the joint family. Not only that, the Panchanama prepared by Office of the Tahsildar dated 5th December, 1996 also shows that the plaintiff and defendants are jointly holding 11 Acres of land. The said panchanama is at Exhibit 47. Exhibit 47 is a certified copy issued by Office of the Tahasildar, Latur. The said Panchanama was drawn as per defendant No.1's application. In the said Panchanama, it is specifically stated that in all 11 Acres of land is in possession of the plaintiff and defendants. Therefore, it is not possible to hold that the defendant No.1 purchased two plots of lands from his own source of income. It is crystal clear from deposition of PW1, PW2 and PW3 that the properties purchased within the span of 8 to 9 months in the year 1979-80 in the name of plaintiff,defendant No.1 and their father were purchased from Joint Hindu Family funds. 11. Learned counsel appearing on behalf of the Appellant- defendant No.1 submitted that the burden is upon the plaintiff as per Section 91 and 92 of the Indian Evidence Act to prove the fact that suit 13 properties were purchased from Joint Hindu Family source of income. I do not find any substance in this submission of the learned counsel appearing on behalf of defendant No.1 because the Panchanama at Exhibit 47 read with evidence adduced by the plaintiff and supported by defendants clearly shows that all suit properties were purchased within the span of 8 to 9 months from the Joint Hindu Family funds. 12. In any case, both the Courts below concurrently held that defendant No.1 failed to prove that he acquired separately two plots of lands by sale deeds dated 6th April, 1979 from his own source of income. Considering these facts and circumstances of the present case, I do not find any merit in the present Second Appeal and the same is dismissed. 13. Learned counsel appearing on behalf of the Appellant - defendant No.1 prayed that the operation and implementation of the present order to be stayed for six weeks. Considering the facts and 14 circumstances of the present case, the same prayer is rejected. 14. Appellant preferred Civil Application No. 13548 of 2008 for stay of the Judgment and decree passed by the learned Civil Judge, Senior Division, Latur in Regular Civil Suit No.533 of 2004 dated 20th September, 2005 and the Judgment and decree passed by the District Judge, Latur in Regular Civil Appeal No. 220 of 2005 dated 6th October, 2008 during the pendency of the present Second Appeal. As the Second Appeal itself is dismissed, nothing survives in the present Civil Application, and the same is rejected. (K.K. TATED, J.) asb/JUN09/sa934.08