1 shh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.11 OF 2009 Nathu Shripati Koli .. Appellant V/s Kisan Shripati Koli & Ors. .. Respondents Mr.Balasaheb Deshmukh for the Appellant. Mr.P.G.Chavan for the Respondents. CORAM : R.G.KETKAR, J. DATE : 4th August, 2009. P.C.: 1. This second appeal takes exception to the judgment and decree dated February 27, 1998 passed by the learned Joint Civil Judge, Junior Division, Vaduj in Regular Civil Suit No.298 of 1991 as also the judgment and decree dated November 5, 2008 passed by the learned District Judge, Satara in Regular Civil Appeal No.155 of 1998. 2. The Appellant is the original Defendant No.1 whereas the Respondent No.1 is the original Plaintiff. The plaintiff instituted suit for partition and separate possession of the properties as more particularly described in paragraph No.1 of the plaint. The controversy in the present Second Appeal is restricted to the agricultural land situated at Aundh. It is not in dispute that the father of the appellant and first respondent viz.Shripati Koli was the ordinary tenant of these lands. He died on April 3, 1959 and after his death name of the appellant was entered under the Mutation 2 Entry No.1405 dated 4.11.1959 as manager of the joint family, being the elder son of Shripati. 3. The said lands are the Class VI-B Inam lands and they were resumed under Section 4 of the Bombay Merged Territories Miscellaneous Allienations Abolition Act, 1955 and they were vested in Government due to non payment of occupancy price by the ex holder on or before July 31, 1965 as required by section 9 thereof. Pursuant to the order dated January 1, 1975 passed by the Sub-Divisional Officer, Phaltan, Taluka Phaltan, the said lands were regranted on inalienable and impartiable tenure in favour of the appellant. Accordingly, the mutation entry was made. 4. The first respondent instituted suit as aforesaid. The appellant contended that in so far as suit lands at Aundh are concerned, they are not the properties of the joint family. According to the appellant, he had paid the occupancy price and the first respondent did not make any contribution towards the payment of occupancy price. In substance, it is the case of the appellant that this is his self acquired property. Respondents 2 to 4 who are the original Defendant Nos.2 to 4 filed written statement at Exh.50 and supported the claim of the first respondent (original plaintiff). In support of their respective case, the parties filed oral as well as documentary evidence. On appreciation of the evidence, the court below decreed the suit. Against which the present Second Appeal is preferred. 5. Mr.Deshmukh, learned counsel for the appellant strenuously contended that the occupancy price was paid by the appellant alone. There was failure 3 on the part of the original tenant Shripati Koli to pay the occupancy price and consequently the lands were resumed by the Statement Government. The suit lands were regranted on new tenure basis and consequently the suit lands ceased to be the joint family properties. 6. On the other hand Mr.Chavan, learned counsel for the first respondent submitted that both the courts below appreciated the evidence on record. According to him the present second appeal does not involve any question of law, much less the substantial question of law. 7. With the assistance of the learned counsel for the parties, I have perused the pleadings of the parties as also the evidence on record. It is undisputed that Shripati Koli was the ordinary tenant of the suit land, and after his death, the name of the appellant being the elder son was entered by mutation entry No.1405, whereby the name of the appellant was recorded as manager of the joint family. The appellant admittedly is the elder son of Shripati Koli. Obviously his name was entered in the suit lands in the capacity of a manager of the joint hindu family. In these circumstances the order of regrant was made in favour of the appellant. Though the appellant claims that the Occupancy Price was paid by him alone, there is no evidence in support of his claim. Even in his examination in chief, the appellant has not produced any material substantiating his claim that he has paid the occupancy price. Mr.Deshmukh invited my attention to the receipts and contended that Occupancy Price is paid by the Appellant. Perusal of these receipts indicate that these receipts are showing payment of assessment and not the Occupancy Price. As against this the first 4 respondent submitted that the amount of Occupancy Price was jointly paid by him and the appellant. 8. Both the courts below have appreciated the evidence on record and recorded a finding that the suit lands are joint family properties. I do not find any infirmity in the findings recorded by the courts below. No substantial question of law is involved in this second appeal. Hence, Second Appeal stands dismissed. 9. At this stage, Mr.Deshmukh prays for continuation of ad-interim order granted by this court on December 12, 2008. Mr.Chavan, learned counsel for the first respondent opposes the said prayer on the ground that the suit for partition is instituted in the year 1991 and till date partition by metes and bounds could not be effected. However, considering the fact that the ad-interim order was operating since December 2008, in my view the ends of justice would be met if appellant’s possession of the suit lands is not disturbed for a limited period of eight weeks from today. Hence, I order that the partition/execution proceedings shall go on, however, the appellant’s possession of the suit lands shall not be disturbed for a period of eight weeks from today. During this period of eight weeks, the Appellant shall not create any third party interest in the suit lands situated at Aundh, in any manner whatsoever including by way of agreement. (R.G.KETKAR, J.)