IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 90 OF 1987. APPEAL NO. 90 OF 1987. APPEAL NO. 90 OF 1987. Shri Bapu Phadtare (since deceased through his heirs and legal representatives) 1. Smt.Sonabai Bapusaheb Phadtare, Occ.: Household work. 2. Dadasaheb Bapusaheb Phadtare (since deceased by his heirs and legal representatives) 2A. Sulabai Dadasaheb Phadtare, Adult, Occ.: Household work. 2B. Shahaji Dadasaheb Phadtare, Adult. 2C. Shri Suresh Dadasaheb Phadtare, Adult. Nos.2A to 2C residents of Vaduj, Taluka Khatav, Dist. Satara. 2D. Smt.Suresha Prakash Katkar, Adult, resident of Marol Police Camp, D-2/15, Marol, Andheri (E), Mumbai. 2E. Smt.Jayashree Anandrao Ingale, Adult, resident of Siraswadi, Taluka Khatav, Dist. Satara. 2F. Dhanaji Dadasaheb Phadtare. 2G. Mohan Dadasaheb Phadtare. 3. Shri Anantrao Bapusaheb Phadtare, Age: 50 years. 4. Shri Maruti Bapusaheb Phadtare, Age: 45 years. 5. Shri Pandurang Bapusaheb Phadtare, (since deceased through his heirs and legal representatives) 5A. Ms.Shobha Pandurang Phadtare, widow, age: 45 years. 5B. Ms.Sheetal Pandurang Phadtare, daughter, age: 20 years. 5C. Ms.Shaila Pandurang Phadtare, daughter, Age: 18 years. 5D. Mast. Vijay Pandurang hadtare, son, Age: 16 years. 5E. Ms.Vidya Pandurang Phadtare, daughter, Age: 14 years. (Legal heirs 5D and 5E being minors are represented through their guardian and mother Ms. Shobha Pandurang Phadtare) All residents of Vaduj, Taluka ... Appellants Khatav, Dist. Satara. (Org.Defendants) : 2 : 2 : 2 : 6. Laxman Bapusaheb Phadtare. Versus. 1. Shri Chandru Hari Phadtare, (since deceased by his heirs) 1A. Madhavrao Ramchandra Phadtare (since deceased by heirs and legal representatives) 1A-1.Shri Shankar Mahadev Phadtare. 1A-2 Ankush Mahadeo Phadtare. 1A-3 Shivaji Mahadeo Phadtare. 1A-4 Tanaji Mahadeo Phadtare. 1A-5 Geetabai Mahadeo Phadtare. All Adult, residents of Vaduj, Tal.:Khatav, Dist. Satara. 1A-6 Smt.Yashoda Mahadeo Shinde, Adult, resident as above. 1A-7 Smt.Mangala Kisan Gharge, Adult, resident of Nimsod, Taluka Khatav, Dist. Satara. 1A-8 Ranjana Kishore Pawar, Adult, resident of Karad, Taluka Karad, Dist. Satara. 2. Shri Babu Bala Phadtare, 3. Shri Kisan Bala Phadtare. (since deceased through heirs) 3A. Smt.Shubhadra Krishna Phadtare, Age 60 years, Widow. 3B. Shri Hanumant Krishna Phadtare, Age 36 years, Son. 3C. Shri Shrikant Krishna Phadtare, Age 32 years, Son. 3A to 3C residing at Vaduj, Taluka Khatav, Dist.Satara. 3D. Ushatai Dnyandeo Bagal, Married daughter, residing at Dambhewadi, Taluka Khatav, Dist.Satara. 3E. Sunanda Ramchandra Pol, Aged 30 years, married daughter, residing at Vaduj, Taluka Khatav, Dist. Satara. 4. Dadasaheb Bapu Phadtare (since deceased through heirs) 4A. Sulabai Dadasaheb Phadtare Adult, Occ.: Household work. 4B. Shri Shahaji Dadasaheb Phadtare, Adult. 4C. Shri Suresh Dadasaheb Phadtare Adult. Nos.4A to 4C residents of Vaduj, Taluka Khatav, Dist. Satara. : 3 : 3 : 3 : 4D. Smt.Surekha Prakash Katkar, Adult, resident of Marol Police Camp, D-2/15, Marol, Andheri (East), Mumbai. 4E. Smt.Jayashree Anandrao Ingale, Adult, resident of Siraswadi, Taluka Khatav, Dist. Satara. 4F. Dhanaji Dadasaheb Phadtare. 4G. Mohan Dadasaheb Phadtare. 5. Shri Anandrao Bapu Phadtare, 6. Shri Maruti Bapu Phadtare, 7. Shri Pandurang Bapu Phadtare, 8. Shri Laxman Bapu Phadtare, All Adult, agriculturists, resident of Vaduj, Taluka ... Respondents Khatav, Dist. Satara. (Org.Defendants.) Shri Nitin Gangal for the Appellants. Shri V.P.Thorat for Respondents Nos.1A, 2 and 3. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 8th January, 2008. : 8th January, 2008. : 8th January, 2008. ORAL ORAL ORAL JUDGMENT.: JUDGMENT.: JUDGMENT.: 1. Heard Shri Gangal, learned Counsel appearing for the Appellants. The Appeal is by the unsuccessful Defendants in a suit filed by the 1st to 3rd Respondents. With a view to appreciate the submissions made by the learned Counsel appearing for the Appellants, it will be necessary to refer to the facts of the case in brief. For the sake of convenience the parties are hereinafter referred to with reference to their status before the trial Court. 2. One Hari had four sons. Chandru (deceased Plaintiff No.2), Bala (father of 2nd and 3rd : 4 : 4 : 4 : Plaintiffs), Bapu (1st Defendant) and Sidu. After demise of Hari, Chandru died in the year 1928. Shantabai widow of Sidu died in the year 1973. Bala died in the year 1952. The 2nd to 6th Defendants are sons of the 1st Defendant. The case of the Plaintiff is that Hari was the owner of lands bearing Survey No.9 and Survey No.75. The 1st Plaintiff, Bala and Sidu were working in Bombay as labourers and Bapu was cultivating the family land. After demanding partition, the suit was filed by the Plaintiffs. It is the case made out by the Plaintiffs that to avoid payment of maintenance to Shantabai, the widow of Sidu, the 1st Defendant transferred some of the suit properties in the names of 2nd to 6th Defendants. 3. The suit was contested by the 1st Defendant by filing his written statement. The contention of the 1st Defendant is that the income from the ancestral family was very meagre and was not sufficient to maintain the family. According to him Balu alias Bala, therefore, started residing with his parents-in-law. It is contended that there was a partition between the 1st Plaintiff Chandru and the 1st Defendant. Subsequently there was another partition at the instance of Balu and mutation entries giving effect to the partition have been made. It is contended that a part of the suit property was self acquired property of the 1st : 5 : 5 : 5 : Defendant. The other Defendants also contested the suit. 4. The trial Court held that the 1st Defendant has failed to prove the previous partition and has further failed to prove that some of the suit properties are self acquired properties. The Appeal Court held that in so far as the issue of self acquisition of certain properties is concerned, the same was res judicata in view of the decree passed in Regular Civil Suit No.177 of 1969 filed by Shantabai. Therefore, the trial Court proceeded to pass a decree for partition holding that the 1st Plaintiff, 1st Defendant and the 2nd and 3rd Plaintiffs will have 1/3rd share each in the suit properties. The Collector was ordered to effect partition. The Appeal preferred by the 1st Defendant was dismissed by the District Court. 5. On 23rd February 1987 the Appeal was admitted by observing that grounds Nos.(i) to (iii) are the substantial questions of law. The said grounds Nos.(i) to (iii) are as under: (i) Whether the Trial Court failed to frame proper issues arising out of the pleadings of the parties which has resulted into miscarriage of justice? : 6 : 6 : 6 : (ii) Whether both the Courts below erred in law in holding that the Defendant No.1 is barred by the principles of res-judicata from raising a plea that the suit properties are his self acquired properties? (iii) Whether both the Courts below erred in not holding that the Defendant No.1 has proved that there was previous partition between the parties in the year 1947 when such finding ought to have been the only reasonable finding on the basis of evidence on record? 6. The submission of the learned Counsel appearing for the Appellant is that the initial burden was on the Plaintiffs to prove that the suit properties were joint family properties which could have been subjected to partition. He submitted that no issue has been framed by the trial Court to that effect and the issues which are framed throw entire burden on the 1st Defendant. He submitted that the trial Court ought to have framed an issue on the basis of the contention of the Plaintiffs that the suit properties are joint family properties held by the family of deceased Hari. He, therefore, : 7 : 7 : 7 : submitted that a miscarriage of justice has been caused due to the failure of the trial Court to frame proper issues. Secondly he submitted that the findings recorded in Regular Civil Suit No.177 of 1968 cannot operate as res-judicata as the said suit was filed by Shantabai, the widow of Sidu seeking maintenance. He submitted that a decree for maintenance was passed in the said suit. He submitted that considering the nature of controversy involved in the said suit, section 11 of the Code of Civil Procedure, 1908 will not be applicable. Thirdly he submitted that there was an evidence of earlier partition in the form of mutation entries and the Courts below have disbelieved the case of prior partition only on the ground that there was no written document. He submitted that in so far as the prior partition is concerned, the evidence of the 1st Defendant is not challenged. He submitted that no evidence has been led by the original Plaintiffs on the aspect of earlier partition. He submitted that the only conclusion which could have been drawn on the basis of the evidence on record is that there was a prior partition in the year 1947. 7. I have given careful consideration to the said submissions. In the suit for partition filed by the Plaintiffs the contention of the 1st Defendant was that some of the suit properties were self acquired : 8 : 8 : 8 : properties and there was already a partition in respect of some of the suit properties. In the circumstances, the burden to prove that certain properties were self acquired properties was certainly on the Defendant No.1. Similarly the burden to prove the prior partition was on the 1st Defendant as it was a defence pleaded by the 1st Defendant of existence prior partition in a suit for partition. Issues Nos.1, 2 and 3 framed by the trial Court read thus: (1) Does the Defendant No.1 prove that the previous partition took place between plaintiffs and defendant No.1? (2) Does the defendant No.1 prove that some of the suit properties are his self acquired properties? (3) Does the defendant No.1 alternatively prove that by adverse possession, he had become the owner of suit properties? Considering the contention raised by the 1st Defendant while defending the suit for partition, it is not possible to accept the submission that proper issues were not framed. In fact issues arising out of the pleadings and the material on record have been properly : 9 : 9 : 9 : framed and in any event the evidence led by the parties shows that the parties were fully aware of the real controversy involved in the suit. Therefore, the first contention deserves to be rejected. 8. Now coming to the second contention raised by the Counsel for the Appellant it must be noted here that Shantabai, the widow of Sidu filed the said suit No.177 of 1968 against Bapu, Chandru and sons of Bala. The prayer in the suit was for partition and separate possession of one-half share in the suit property. In the alternative, the said Shantabai claimed a decree for maintenance. Issue No.10 was framed in the said suit with the following effect: "Whether he (Bapu) proves that the suit properties mentioned at Sr.No.2 to 9 and 13 to 19 are his self acquired properties?" The said issue has been answered in the negative. A perusal of paragraphs 9 and 10 of the said judgment shows that a clear finding is recorded by the Court that Bapu, the 1st Defendant in the said suit (i.e. 1st Defendant in the present suit) has failed to prove that the properties were self acquired properties. A clear finding has also been recorded that the evidence on record is otherwise. The prayer for partition was : 10 : 10 : 10 : dismissed. However, the decree for maintenance has been passed. Thus the issue whether certain properties standing in the name of the 1st Defendant herein were self acquired properties has been heard and finally decided in the said Suit No.177 of 1968. Therefore,the Courts below were right in applying the principles of res-judicata and holding that the 1st Defendant was not entitled to raise the said plea in the present suit. 9. In so far as the proof of earlier partition is concerned, there are concurrent findings of fact. The learned trial Judge in paragraph 11 of the judgment has referred to mutation entry No.6817 dated 10th February 1947 and mutation entry No.6792 dated 1st October 1947. The trial Court observed that the first mutation entry refers to the partition between Chandru and Bapu and the second mutation entry refers to the partition amongst Bapu, Chandru and Balu. The learned trial Judge held that if the case made out by the 1st Defendant that firstly there was a partition between himself and Chandru and secondly there was a partition between Chandru, 1st Defendant and Balu is accepted, it is obvious that there cannot be two partitions as contended by the 1st Defendant. The trial Court has held that there is nothing on record to prove the factum of partition. A perusal of the judgment of the Appeal Court shows that after perusing the evidence on record, : 11 : 11 : 11 : the Appellate Court has recorded its agreement with the findings recorded by the trial Court on the issue of prior partition. The Appellate Court has referred to the inconsistent stand taken by the 1st Defendant as regards the partition and has held that it is not possible to believe the version of the 1st Defendant as far as the earlier partition is concerned. It is not possible to interfere in this Second Appeal with the concurrent findings of fact recorded by the Courts below on this aspect. 10. There is no merit in the Second Appeal and the same is accordingly dismissed with no order as to costs. Judge. Judge. Judge.