1 215 SA.368.91 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 368 OF 1991 Pandu Torappa Shedage, Since deceased by his heirs & L.Rs. 1) Kaka Pandu Shedage and others. ... Appellants Versus Kondiba Natha Shedage. ... Respondent ­­­­­ Ms S.M.Dandekar for the Appellants. ­­­­­ CORAM : A.S.OKA, J. DATE : 05 th December, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellants. None appears for the Respondent. The Appellants are the legal representatives of the original Plaintiff and the Respondent is the original Defendant. 2 The suit properties have been more particularly described in the plaint. One Hari had two sons by the name Bala and Torappa. Bala had two sons by the name Pandu and Natha. Pandu is the original Plaintiff. The said Pandu went in adoption to Torappa in the 2 215 SA.368.91 year 1933. Kondiba is the son of the said Natha. The said Kondiba is the Defendant. By the sale­deed dated 18 th April, 1928, the suit properties were purchased in the name of the original Plaintiff – Pandu. In the suit filed by the original Plaintiff, it was contended that he had purchased the suit properties by utilizing his own income while he was living separately from his brother Natha. It is alleged that he continued to be in possession of the suit properties and the Respondent obtained thumb impression on a blank paper and manipulated the mutation entry. It is alleged that on the basis of the said mutation entry, the Respondent tried to disturb the possession of the original Plaintiff. 3 Suit was filed by the deceased – Pandu for declaration of ownership, for correction of the record and in the alternative for a decree for possession. The suit was contested by the Respondent by filing the written statement. It was contended that the suit properties were joint family properties which were acquired in the name of the deceased – Pandu being the manager of the joint Hindu family. 3 215 SA.368.91 According to the case of the Respondent, after the adoption of the said Pandu in the year 1933, he had informed the concerned authority to transfer all joint family properties including the suit properties to the account of the deceased – Natha. It was denied that a fraud is played by him on the original Plaintiff by obtaining his signature. In the alternative, it was contended that the Respondent has perfected his title by adverse possession. The trial Court held that the Plaintiff proved that the suit properties were self acquired properties and that the Respondent has failed to prove that the suit properties are of the joint Hindu family properties of the Plaintiff and the Defendant. Therefore, the trial Court proceeded to pass a decree for possession by granting declaration in favour of the Plaintiff. The Appellate Court in the appeal preferred by the Respondent had interfered and has set aside the decree. 4 The submission of the learned counsel appearing for the Appellants is that the recitals in the sale­deed show that the suit properties are self acquired properties. The learned counsel 4 215 SA.368.91 submitted that the properties continued to be vested in Pandu and therefore, after the adoption, the Respondent cannot have any right, title or interest in respect of the suit properties. The learned counsel invited the attention of the Court to the deposition of the witnesses and the revenue record filed on the record of the suit. The learned counsel submitted that the finding of the Appellate Court on the plea of adverse possession is perverse. None appears for the Respondent. 5 I have given careful consideration to the submissions. On 1 st August, 1991, the second appeal was admitted on the substantial questions of law incorporated in clauses (3) and (4) of the memorandum of appeal, which read thus: “3) The other substantial question arises in this Appeal, is whether the Mutation entry No.1639 dated 27/3/1971 (Exh.41) can act as a document of title, in favour of the defendant. 4) That another substantial question arises in this Appeal, is Whether defendant can be said to have acquired title to the suit property by adverse possession over 12 years next before filing of the suit only because the 7/12 extracts and mutation entry stand in the name of the defendant.” 5 215 SA.368.91 6 According to the case of the Appellants, there was a partition between he himself and the father of the Natha and after the partition, he has acquired the suit properties by a registered sale­deed. The Appellate Court has recorded a finding that the Appellants failed to prove that the suit properties were exclusive properties of Pandu, the original Plaintiff. The Appellate Court has held that the Respondent has perfected his title by adverse possession. 7 The case of the said Pandu was that there was a partition between himself and the Respondent and that the acquisition of the suit properties was after the partition. Perusal of the evidence of Kaka, the eldest son of Pandurang shows that there is no specific stand taken in the examination­in­chief that there was an earlier partition before the acquisition of the suit properties. Therefore, the Appellate Court has held that the partition was not established. Once partition was not established, what is apparent is that there were ancestral properties of the joint family. Hence, the nucleus was available from which the suit properties could have been acquired. Hence, the 6 215 SA.368.91 burden shifted on the Appellants to prove that it was a self acquired property. As the said burden has not been discharged, the suit properties cannot be treated as exclusive properties of the Pandu. 8 The Appellate Court has held that the Respondent has perfected his title by adverse possession. The said case was pleaded in the alternative by the Respondent. Going by the findings of the Appellate Court, there was no assertion of hostile title by the Respondent and in fact, the said prayer made in the alternative does not appear to have been pressed. Therefore, the finding of the Appellate Court that the Respondent has perfected his title by adverse possession will have to be quashed and set aside as the same is patently illegal. Thus, the scenario which emerges is that the Appellants have failed to prove the exclusive title in the suit properties of the said Pandu and that even the Respondent is not the sole owner of the suit properties. In absence of evidence of partition, the properties will have to be treated as joint family properties. Though the finding recorded by the Appellate Court on the issue of adverse 7 215 SA.368.91 possession will have to be quashed, the decree of dismissal of the suit cannot be disturbed inasmuch as the Appellants failed to established their exclusive ownership. 9 Subject to what is observed above, no case for interference with the operative part of the decree of the Appellate Court is made out. The second appeal is accordingly disposed of with no order as to costs. [ A.S.OKA, J ]