1 sa33.91.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 33 OF 1991 WITH CIVIL APPLICATION NO. 926 OF 1991 Shri Pandurang Rambhau Lonkar deceased by his L/Rs. Shri Chandrakant Pandurang Lonkar and others ....Appellants. Vs. Shri Shankar Rambhau Lonkar, deceased by his L/Rs. Shri Laxman Shankar Lonkar and others ..Respondents. Mr. B.S. Nayak for the Appellants. None for the Respondents. CORAM : A.S. OKA, J. DATE : 9TH NOVEMBER, 2011. ORAL JUDGMENT 1. Heard learned Counsel appearing for the appellants, who are the original plaintiffs and defendant No.4. 2. A suit was filed by the plaintiffs for declaration that the house property bearing Municipal House No.1220 situated at Bhavani Peth, Pune is a joint family property of the plaintiffs and first defendant. The prayer in 2 sa33.91.sxw the suit was for perpetual injunction restraining the defendant Nos. 1 to 3 from issuing any notices and from filing any suit for possession against the tenants. In the alternative, a prayer was made for passing a decree for partition and separate possession for their 1/4th share in the suit house. Initially the suit was decreed by the trial Court on 9th December, 1982. The trial Court held that the plaintiff Nos.2 and 3 and the first defendant were entitled to 1/3rd share each in suit property bearing CTS No10/1/6 (Todiwalla Road bungalow) at Todiwalla Road, Pune. The Trial Court passed a decree in respect of house No. 1220. There was an appeal preferred before the District Court. In the the appeal, the District Court confirmed the decree passed in respect of suit house No. 1220. However, the decree passed in respect of house No.10/1/6 (hereinafter referred to said house) was set aside and only to that extent the suit was remanded to the trial Court. The appellate Court referred to the amended written statement of the first defendant in which it was contended that the said house was owned by the joint family. On the basis of the said contention, the appellate Court directed the trial Court to frame an additional issues. Accordingly, the trial Court framed two additional issues. 3. The first issue was whether the plaintiffs prove that the said house was exclusively owned by plaintiff No.3 and the second issue was whether the 3 sa33.91.sxw defendants prove that the said house was of the jointly family property. The trial Court answered the said issues against the plaintiffs and held that the first defendant was entitled to 1/4th share in the said house. The trial Court passed a decree for partition and separate possession in respect of the said house. Being aggrieved by the said decree, the plaintiffs and the defendant No.4 preferred an appeal before the District Court, which has been dismissed by the impugned judgment and decree. This Second Appeal was admitted on 25th January, 1991 by passing the following order : "Heard Shri Pandit. Admit. Jurisdiction of the Appellate Court in directing to include house bearing No.10/1/6 in the joint family property though not claimed would be the substantial question of law involved in this second appeal." 4. The learned Counsel appearing for the appellants submitted that the sale deed in respect of the land on which the said house was constructed shows that the land was purchased by the plaintiff No.3 in his name. He submitted that the evidence on record shows that the plaintiff No.3 had his own laundry business. He pointed out that the defendants have not established that any particular amount was paid from the funds of joint family for acquiring the said house. He submitted that neither the trial Court nor the appellate Court had jurisdiction to pass any decree in respect of the 4 sa33.91.sxw said house as it was not the subject matter of the claim made by the plaintiffs in the suit and there was no counter-claim filed. He, therefore, submitted that the impugned judgments and decrees are perverse. 5. I have carefully considered the submissions. It must be noted that the appellate Court has observed that in the suit filed by the plaintiffs in respect of the suit house bearing No. 1220, there was a prayer made in the alternative for passing a decree for partition and separate possession. Thus there was a prayer for a decree for partition in the suit. In written statement of the first defendant, it was specifically contended that the said house was a joint family property and therefore the same should be made a part of the suit property. Therefore, while deciding the appeal against the original decree, the appellate Court confirmed the decree passed by the trial Court in respect of house No.1220 and set aside the decree so far the said house is concerned and remanded the suit by directing the trial Court to frame additional issues in respect of the said house. On the basis of the said order of remand, the additional issues as set out above were framed. The plaintiffs and defendant No.4 ( i.e. the Appellants herein) have not challenged the said order of remand and findings recorded therein and therefore, there is no substance in the contention of the appellants that the Courts below could not have gone into the prayer for partition in respect of the said house which 5 sa33.91.sxw was not the part of the suit property. As the appellants (plaintiffs and defendant No.4) have failed to challenge the order of remand passed by the District Court, now it is not open for them to contend that the Court had no jurisdiction to pass a decree in respect of the said house. 6. On the aspect of acquisition of the said house, both the Courts below on appreciation of the oral and documentary evidence have recorded concurrent findings that the said house is the property of joint family. 7. As the submission has been made that the impugned judgments are perverse, I have perused the notes of evidence and in particular the evidence of plaintiff No.3. He admitted that there was a joint family laundry business, which was being carried for long time. However, his case was that he was running his own laundry business and earning income. The trial Court has carefully scanned evidence of the said witness. The trial Court noted an admission that the business of washer man was ancestral business of the plaintiffs and the said ancestral business was going on. This important admission is that there was joint family business in existence. Thus, the existence of nucleus from which the said house could have been purchased was proved. Apart from this, the appellants have not adduced any evidence to show that a particular income was being received by plaintiff No.3 from 6 sa33.91.sxw his own business to enable him to acquire the said house. Therefore, both the Courts below had drawn an interference that the said house is purchased form the income of the joint family. 8. It is not possible to find fault with the concurrent findings recorded by both the Courts below the Second Appeal is dismissed with no order as to costs. 9. Civil Appeal No.926 of 1991 does not survive and is disposed of accordingly. ( A.S. OKA, J. )