(1) SA. 742.2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 742 OF 2004 Krishnarao Vinayakrao Deshmukh died through LRs. and others .. Appellants VERSUS Yeshwant @ Raosaheb Venkatrao Deshmukh and others .. Respondents Mrs. C.S. Deshmukh, Advocate h/f. Mr. S.P. Deshmukh, Advocate for the Appellants None present for the respondents though served ... CORAM : K.U. CHANDIWAL, J. DATED : 22ND APRIL, 2010 PER COURT:- 1] Heard learned counsel for the plaintiff/appellant. The judgment and decree dated 27.2.2001 recorded in Regular Civil Appeal no. 35 of 1993, confirming the judgment and decree dated 17.10.1992 passed by the learned Civil Judge Senior Division, Nanded in Regular Civil Suit no. 69 of 1988, dismissing the suit, is debated by the plaintiff in this Second Appeal. 2] The learned counsel for the appellant submits that the substantial questions of law between the parties are ground nos.9 and 10 of the appeal memo which read as under:- (2) SA. 742.2004 "IX. The Courts below have committed grave error in ignoring that it is a privilege of elder member of the family to keep the family deities and is not his right. X. The Courts below ought to have considered that the deities belong to all the members of the family and no member in the family can claim exclusive right to the family deities implying that there is no further benefit to the elder of the family than to keep the deities with him and the right of the rest of the members can not be severed and are impartible and that rights of the elders are not to the exclusive of other members of the family" 3] In order to appreciate the substance of the grounds, the factual details needs to be gone into. The plaintiff and Venkatrao are the sons of Vinayakrao. Venkatrao died leaving behind him 4 sons (defendant nos. 1 to 4) while defendant nos. 5 to 7 are the grand-sons of Venkatrao. Venkatrao and plaintiff were members of joint Hindu family holding various lands at different places. They were also worshiping deities of Balaji, Devi Bhavani, Narsinha, Laxman Gadi as family rites. According to the plaintiff in the year 1951, there was oral partition between plaintiff and his brother Venkatrao. In the said partition, plaintiff got certain pieces of land however, land survey no. 223 of village Osmannagar was kept joint for meeting expenses of utsav of Balaji, Devi Bhavani and other deities and the lands (3) SA. 742.2004 were standing in the name of Venkatrao and after partition except land survey no. 223 all lands falling to the share of the plaintiff were mutated in the name of the plaintiff. In the land survey no. 223, there are several trees with well with substantial quantity of water. Plaintiff submitted there was no controversy so long as Venkatrao was alive as after meeting the expenses of the deity Balaji, the residue or the surplus used to be distributed amongst Venkatrao or his branch of the plaintiff. However, the defendants have dis- continued the same and have oblique intention to dispose of the land survey no. 223, hence the plaintiff was constrained to file suit for perpetual injunction, mesne profits. Plaintiff asserts the commonness and the nature of the lands survey no. 223 is spelt out in the settlement dated 3.7.1965 (exhibit 72). 4] In order to explain the situation, the plaintiff himself stepped in the witness box and also examined defendant no.2 Prabhakar as his witness. The plaintiff asserts of the earlier petition, however, he did not produce any such documents. The assertion of the defendants to give effect about the commonness of the land survey no. 223 revolves around exhibit 72. This exhibit 72 could not be coined by the plaintiff to stake claim in the property to be joint, for the reason this agreement was inter-se (4) SA. 742.2004 between the branch or the members of Venkatrao and his sons. Plaintiff was simply witness to the transaction. It could not be accepted on any count urged, that it provides shade of acceptance by any member of Venkatrao to involve the plaintiff with his share in it. The commonness of user of the family is also not so specifically spelt out. Paragraph no.6 of the partition deed dated 3.7.1965 spells that the property land survey no. 223 will be enjoyed as it is retained for meeting the expenses, to the branch of Venkatrao. The Courts have rightly recorded a finding that the parties were conscious that the plaintiff or his branch has no stake in the said field and consequently that the parties could keep mango trees in common, they did not specify the commonness or joint user of the land survey no. 223. Both the Courts rightly interpreted exhibit 72 to it's logical end. 5] Defendant no.2 Prabhakar who was brought by the plaintiff in support of his contention, indeed blast the contention of plaintiff as he admitted that land survey no. 223 was exclusively allotted to Venkatrao and thereafter to defendant no.1. He accepted that plaintiff or other persons have no concern with the said land. 6] The plaintiff asserts that there was a document between him and his brother Venkatrao (5) SA. 742.2004 effected in 1951, however, said document as said above did not see dawn at any time to assert and accept plaintiff's contention. Reference to earlier decree is also illusory and in air, not surfaced on the record. 7] Taking survey of the above facts the substantial questions of law tried to be formulated, would not arise as the evidence illustrate that the property land survey no. 223 was exclusively kept for Venkatrao and plaintiff had nothing to claim in it. Second Appeal lacks merit, dismissed. No costs. Sd/- (K.U. CHANDIWAL, J.) arp