1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.342 OF 2007 WITH CIVIL APPLICATION NO.684 OF 2007 Magan Shankar Pathak D/h. through legal representatives 1 Yamunabai Magan Pathak & Ors. ...Appellants. v. Sham Shankar Pathak & Ors. ...Respondents. Mr.N.V.Walawalkar i/by Suresh M. Sabrad, advs. For the Appellants. Mr. Uday P. Warunjikar, adv. For the Respondent No.1. CORAM : J.H. BHATIA, J. DATED : 1st September , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 This is the second appeal by the legal heirs of the original defendant no.1. To state in brief, the plaintiff Sham, who is the respondent no.1 in the present appeal, filed regular civil suit no.128 of 1993 claiming declaration that he is the owner of the suit land, being 50 Are in area from the Southern side in gat no.261 situated within the limit of village Naitale Tal: Niphad, District: Nashik. It is his contention that the land gat no.261 was the ancestral property. Pedigree, which is not much in dispute, reveals that Kondaji, Harku and Govind were three brothers. Defendant no.2 Pralhad is the son of deceased Govind. Santu 2 was the son of Kondaji. Santu was succeeded by his wife Bhagubai and 3 daughters. Bhagubai died leaving behind three daughters, out of whom two daughters have died. Third daughter is the defendant no.3 Avadabai. Harku had son Shankar. Shankar left behind 4 sons. Plaintiff Sham and Defendant no.1 Magan are the sons of Shankar . Shankar has another son Govind. Govind died and his widow re-married . Shankar’s one son Malhari also died leaving behind widow Sitabai, who is the defendant no.4. According to them, land gat no.261 admeasuring 2H 26R belongs to three brothers Kondaji, Harku and Govind and to their branches. Pralhad is in occupation of 75 R. He belongs to Govind’s branch. It is contended that defendant no.3, Avadabai daughter of Santu relinquished her share in suit land in favour of the plaintiff, defendant no.1 and defendant no.4, i.e., the branch of Shankar about 10 to 15 years before the partition. Partition took place sometimes in 1984 and accordingly, plaintiff, defendant no.1, defendant no.4 are in possession of the 50R each as described in the plaint and remaining 75R land is in possession of Pralhad son of Govind. It was contended that elder brother of the plaintiff and defendant no.1 was living away from the village and in spite of separate cultivation and possessions, whole of this land was recorded in the name of defendant no.1 alone and taking benefit of that he is trying 3 to disturb the possession of the plaintiff over the suit land, therefore, the plaintiff claims declaration of his title over the suit land and perpetual injunction. 3 Defendant no.1 contested suit. He denied that there was any joint family or joint family property or that any partition had taken place but he admitted that Santu had a share in the land gat no.261. However, according to him, 3 daughters of Santu had executed separate wills and bequeathed their share in the land gat no.261 in favour of the defendant no.1 and as such, he has become owner of the property. He claimed that he himself and the defendant no.2 only were in possession of this property. 4 The trial Court after perusal of the oral and documentary evidence decreed the suit and rejected the claim of the defendant no.1 that he had become owner of the whole of the property on the basis of wills. Defendant no.1 preferred Regular Civil Appeal No.68 of 2003. That appeal was also dismissed. Hence, the Second Appeal. 5 Both the Courts below have rejected the claim of the defendant no.1 that he had become owner of the property on the basis of wills executed by daughters of Santu. Having rejected the claim of the defendant no.1, Courts below held that the plaintiff has proved the 4 partition and separate possession. This finding is based not only on certain entries in the record but also the Court Commissioner’s report. The report clearly revealed that land gat no.261 was clearly divided in 4 parts having clear demarcations and the respective claimants were in possession of the same. 6 Mr. Walawalkar the learned senior counsel for the defendants /appellants vehemently contended that the Courts below have not framed any specific issue as to whether the property was ancestral property or not. He vehemently contended that the First Appellate Court is the last Court of facts and, therefore, it was expected that the First Appellate Court should minutely analyse the whole evidence and come to its own conclusions in respect of each issue independently of the findings given by the trial Court. He is supported by the judgment of the Supreme Court in State of Rajasthan v. Harphool Singh (Dead) through his LRs 2000(5) SCC 652. The learned senior counsel also contended that the First Appellate Court failed in discharging its duties and has mainly relied upon the findings given by the trial Court and has only confirmed the same. The First Appellate Court has not given any findings about the ancestral property. The learned senior counsel contended that in all fairness, Second Appeal should be allowed and the 5 matter should be remanded back to the First Appellate Court to consider the evidence and to give findings by giving reasons for the same independently of the findings of the trial Court. 7 Mr. Warunjikar the learned counsel for the plaintiff/respondent no.1 vehemently opposed this proposal and according to him, taking into consideration the pleadings of the parties, evidence on record and the findings, there is no scope to come to conclusion that defendant no.1 alone could be owner or in possession of whole of the suit property. 8 After having given due thought to the rival contentions, I find that even though there is no specific finding from the First Appellate Court that land gat no.261 was the ancestral property, there is sufficient material to come to such a conclusion. In that land the three brothers namely, Kondaji, Harku and Govind had 1/3 share each and 1/3rd share of Govind, equal to 75R, is presently in occupation of his son Pralhad, 1/3rd share belonged to Harku and remaining 1/3rd belongs to Kondaji and then to their sons. According to the plaintiff, at present plaintiff, defendant no.1 and defendant no.4 hold 50R each, i.e., 1H and 50R in toto. This could be possible because they represent the branch of Shankar son of Harku, who had title over 75R and the remaining 75 R 6 land belonging to the branch of Santu has also come to the branch of Shankar because Avadabai relinquished her share in the property in favour of the plaintiff, defendant no.1 and defendant no.4. Even though that contention of the plaintiff is not admitted by the defendant no.1, he also claims that the suit property has come to him on the basis of wills executed by the daughters of Santu. Therefore, there is sufficient material to show that this land was ancestral property and as the defendant no.1 has failed to establish that the property had come to him on the basis of wills executed by daughters of Santu and the oral evidence led by the plaintiff and the Court Commissioner’s report indicates that the property was actually partitioned in four parts wherein defendant no.2 Pralhad is in possession of 75 R land and Plaintiff, defendant no.1 and defendant no.4 has share of 50R each. These facts go to support the claim of the plaintiff. Taking into consideration all the facts, it is difficult to find any per-se illegality or perversity in the decree passed by the trial Court and confirmed by the First Appellate Court . It is a case based on facts and no substantial question of law is involved in the matter. Therefore, appeal stands dismissed. 9 At this stage, the learned senior counsel for the appellant makes a request that ad-interim relief which is in operation since 3rd July, 7 2008 may be continued for a further period of 8 weeks. Mr.Warunjikar the learned counsel for the respondent no.1 opposed it. However, in the interest of justice, said order shall continue to be in force for eight weeks. 10 As the Second Appeal itself is disposed off , Civil Application No.684 of 2007 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)