1 37 sa 639.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 639 OF 2010 Dhondirao Shankar Masal & Anr. ..Appellants. Vs. Nana Narayan Masal & Ors. ..Respondents. Mr. R.V.Bansode for the appellants. Mr. Surel S.Shah for respondent no.1. CORAM : D.B.BHOSALE, J. DATED : 08/12/2010. PC: 1 Heard learned counsel for the parties. 2 This appeal is directed against the concurrent findings of fact recorded by the courts below finally decreeing the suit instituted by respondent no.1-plaintiff for partition and separate possession of his 1/3rd share in the suit properties. The property in dispute is an agricultural land being Gut no.363 ad-measuring 6 H 33 Ars. Admittedly, Shanker, the father of the appellants; Narayan, the father of the plaintiff; and Sadashiv, the father of remaining defendants were cultivating the suit land as tenants. The proceeding under section 32-G of the Bombay 2 37 sa 639.10.doc Tenancy and Agricultural Lands Act, 1948 (in short “the Act”) was initiated and concluded by issuing a certificate under section 32-M of the Act in favour of all the three brothers (Shanker, Narayan and Sadashiv). Respondent no.1-plaintiff is the son of Narayan whereas the appellants are the sons of Shanker. The order passed by tenancy authorities under section 32-G of the Act, so also the certificate issued under section 32-M of the Act has not been challenged by the appellants till this date. These facts have not been disputed by the appellants. This itself, in my opinion, is sufficient to hold that all the three brothers (Shanker, Narayan and Sadashiv) are having 1/3rd share each in the suit property. 3 Mr. Bansode, learned counsel for the appellants vehemently submitted that on the basis of an application jointly made by all the three brothers mutation entry no.114 (Exhibit 46) was effected and only 6 pai share (approximately 1/17) was shown/entered in the record of rights in the name of respondent no.1-plaintiff and in view thereof, respondent no.1-plaintiff is not entitled for 1/3rd share as allotted by the court below. I have perused the pleadings, so also the other material placed before the court. It is worth noticing the case of the appellants- defendants. In the written statement they have stated that since 3 37 sa 639.10.doc Narayan started obstructing possession of the appellants- defendant nos.1 and 2 and started quarrelling with Shanker, Mutation entry no.114 was effected. Further, it is specifically stated in the written statement that the said mutation entry is hollow entry. Mr. Bansode, learned counsel further submitted that in any case, the respondent no.1- plaintiff cannot claim any right in the suit property since he has not paid purchase price and that he was not tenant in the suit property. This submission is devoid of any merits and deserves to be rejected outright, in view of the fact that the certificate under section 32-M of the Act is in favour of all the three brothers (Shanker, Narayan and Sadashiv). I do not find any merit in the contentions urged by learned counsel for the appellants warranting interference in the concurrent findings recorded by the courts below. 4 Mr. Bansode, learned counsel at this stage invited my attention to paragraph 5 of the judgment in the first appeal and submitted that the matter may be remanded to the first appellate court in view of the fact that its judgment and order is ex-parte. It appears that though the advocate for the appellants was absent, appellant no.1 was present and he submitted that the appeal may be decided by taking the grounds of appeal into consideration. He did not make any grievance about the same. 4 37 sa 639.10.doc As a matter of fact, I have heard learned counsel for the appellants for quite sometime and perused the entire material on record. On merits, I am satisfied that the appellants have no case and that the impugned judgments do not deserve remand as prayed for by the learned counsel for the appellant. The appeal is dismissed. 5 At this stage, learned counsel for the appellant prayed for stay of the execution for a period of six weeks. Mr. Surel Shah, learned counsel for the decree-holder, on instructions from his client who is present in the court, submits that for a period of six weeks from today the decree-holder will not execute the decree. His statement is recorded and accepted. In view thereof, it is not necessary to pass any order as prayed for by Mr.Bansode. (D.B.Bhosale, J.)