1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 438 OF 2008 Shri Nivrutti Shankar Bhandalkar ) Age about 73 years, occupation:Agriculture ) R/o Vathar (Nimbalkar) Tal.Phaltan ) District; Satara. )..Appellant 9Orig.Deft.No.1) Versus 1. Shri Ankush Bhagwan Madne ) Age about 33 years, Occ.Agriculure ) R/o Murum (Zopadpatti) ) Tal. Baramat, Dist. Pune. ) 2. Sou. Jagubai Raghunath Bhandalkar ) Age about 58 years, Occupation ) Household, R/o. Adarki, Tal.Phaltan ) Dist. Satara. ) 3. Sou. Janabai Bhimrao Masugade, ) Age about 48 years, ) OccU: Household. R/o. Aljapur, ) Post Adarki, Tal.Phaltan, ) Dist. Satara. ) 4. Shri Dinkar Shankar Bhandalkar, ) Age about 83 years, Occupatio: Agriculture, ) 5. Shri Laxman Nivrutti Bhandalkar ) Age about 41 years, Occ: Agriculure ) 6. Smt. Kisabai Nivrutti Bhandalkar ) age about 63 years, ) occupation: Household. ) 2 7. Shri Bhagwan Shankar Madne, ) age about 53 years, Occ:Agriculure ) Respondent No.4 to 7 R/o. Wathar ) (Nimbalkar), Tal. Phaltan, ) District: Satara. ) 8. Girijabai Shankar Bhandalkar, ) since deceased through her heirs ) and legal representatives are already ) on record as Appellant & Respondent ) Nos. 4, 5, 6, 9 & 10 respectively ) 9. Smt. Hirabai Raghunath Khomane ) Age about 63 years, Occupation ) Household, R/o. Saswad, ) Tal. Phaltan, Dist. Satara. ) 10. Smt.Chotubai Mhaku Jadhav ) Age about 58 years, ) Occupation: Household ) R/o. Umaji Naik Chowk, ) Phaltan,Tal. Phaltan, ) Dist. Satara. ).. Respondents Mr. Dilip Bodake, Advocate, for the appellant. Mr.Vishwanath Talkute,Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 28th July, 2009 P.C. 1. Heard the learned Counsel for the parties. 3 2. Admitted facts are that the suit property bearing Gat No.343 admeasuring 9 hectares 43 Ares originally belonged to one Devendra Nimbalkar. Shankar Hari Madne and Shankar Nana Bhandalkar were independently tenants to the extent of half share each in that property. Under the provisions of Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948, the tenants became owners of the property. Shankar Hari Madne died on 26.2.1974 leaving behind his widow Sonubai, son defendant no.5 – Bhagwan and four daughters. Defendant No.5 Bhagwan, sold away the suit land by registered sale deeds dated 8.7.1982 and 17.1.1983 in favour of Shankar Bhandalkar. Regular Civil Suit no.301 of 1990 was filed by plaintiff No.1 Sonubai widow of Shankarrao Madne, their daughter Jagubai and daughter’s daughter Janabai for partition and separate possession to the extent of their shares as well as for declaration that the sale deeds were void ab initio to the extent of their shares. During the pendency of the suit, Sonubai died and Ankush son of defendant No.5 Bhagwan was brought on record as her L.r. and was shown as plaintiff No.1A. Defendant Nos.1 to 4 and 6 to 8 are the legal heirs of Shankar Bhandalkar. It was the contention of defendant No.1 Nivrutti Shankar Bhandalkar that defendant No.5 had sold away the suit property in his favour for legal necessity. Several issues were framed and after hearing the parties the trial Court decreed the suit in favour of the plaintiffs and declared 4 that the sale deeds executed by defendant No.5 in favour of defendant No.1 are not binding on the shares of the plaintiffs. The decree for partition and separate possession was passed in their favour accordingly. Defendant No.1 preferred Regular Civil Appeal No.15 of 2000. That appeal also came to be dismissed. Hence, this Second Appeal. 3. Mr. Bodke, the learned Counsel for the appellant contended that the suit for declaration that the sale deed was void could have been filed within 3 years from the date of execution of the sale deed or at least from the date of knowledge of the sale deed. However, it appears that suit was not merely for declaration that the sale deed was void, but it was for partition and separate possession. Such a suit could be filed within 12 years from the date of ouster of the joint property. The sale deeds are of the years 1982-83, while the suit was filed in the year 1990. Therefore, the suit for partition was within limitation. 4. The learned Counsel for the appellant also contended that deceased Shankar was also having some other property which was not brought in hotchpotch in filing the suit. It is settled position that normally other non- alienating co-parceners should file a suit for general partition of all the properties. However, the non-alienating co-parcener or shareholder can also 5 file a suit for partition to the extent of the property sold away by one of the co- parceners.. Therefore, merely because all the properties were not brought in hotchpotch while filing the suit, the suit could not be dismissed on that ground. 5. In Patilbua Pandu Landge vs. Sadashiv Vithoba Kamble and others, 1976 Mh.L.J.158, a Division Bench of this Court had held that in the decree in favour of non-alienating co-parcener for partition of the specific property, it is necessary that the equities in favour of the purchaser will have to be worked out in l suit for general partition of all the joint family property and a direction that the execution of the decree in favour of the non-alienating co- parceners should remain stayed for a specific period during which period the purchaser will file a suit for general partition and if such a suit is filed within the prescribed period, stay of the execution of the decree should last until disposal of the purchaser’s suit for partition. 6. Taking into consideration the facts of the case and the legal position, I find no substantial question of law involved in the present Appeal and therefore, the Appeal is liable to be dismissed. However, in the interest of justice, the appellant, who is the purchaser from the defendant No.5 Bhagwan, may be given reasonable time to file a suit for general partition. 6 7. For the aforesaid reasons, the Second Appeal No.438 of 2008 is hereby dismissed. However, the appellant/original defendant No.1 shall be at liberty to file a suit for general partition within a period of 3 months from this date and the execution of the decree in the present litigation shall remain stayed for a period of 3 months. In case, such suit is filed within the stipulated period, the stay to the execution of the decree shall continue till such suit filed by the present appellant is finally disposed of. In case such a suit is filed, the trial Court shall endeavour to dispose of the same as early as possible. 8. The parties shall not create any third party interest either in the present suit property or other family property which may be available for partition and may be in possession of the plaintiffs or other shareholders. 9. As the Second Appeal itself is dismissed, the C.A. No.1098 of 2008 for stay does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)