1 S.A.No.367.05 +1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 367 OF 2005 1] Laxman S/o Pandharinath Baraskar, (deceased) through his legal heirs. 1A] Suhadrabai Dadaba Gale-Dead 1B] Smt Parubai Madhav Shewale,Age 72 years,Occupation Nil, R/o Wadgaon Gupta, Taluka and District Ahmednagar. 1C] Bhagwanta Laxman Baraskar, Age 70 years Occupation Agriculturist R/o Bhistbag, Taluka and District Ahmednagar. 1D] Sou Sarubai Dattatrya Nehul,Age 66 years Occupation Agricultrist, R/o Javkhede, Taluka Pathardi, District Ahmednagar. 1E] Hanmant S/o Laxman Baraskar,Age 58 years,occupation Nil, R/o Bhistbag, Taluka and District Ahmednagar. APPELLANTS V E R S U S Bhausaheb Firodiya Vrudhashram Santsh,Ahmednagar through its Trustees 1] Motilal Multanchand Bora,Age 55 years,Occupation Business 2] Abhaykumar Navlmal Firodiya,Age 56 years,occupation Business, 2 S.A.No.367.05 +1 3] Vasantlal Punamchand Bhandari, Age 58 years, Occupation Business 4] Shantilal Nemichand Munot, Age 60 years Occupation Business 5] Prakash Motilal Firodiya,Age 52 years Occupation Business, 6] Suresh Yashwant Bhalerao,Age 54 years Occupation Business. 7] Shantilal Hiralal Bora, Age 55 years, Occupation Bussiness 8] Hastimal Chandmal Munot (Dead) 9] Shankarlal Amarchand Bhandari, Age Years,Occupation Business 10] Hastimal Dagdumal Muthiyan, Age59 yearsOccupation Business. 11] Ashoklal Motilal Firodiya -Dead 12] Shamsundar Pemraj Sarda, Age years, Occupation Business. 13] Hiralal Uttamchand Bhandari, Age years Occupation Business. 14] Dhanraj Shrimal Pitale, Age Years, Occupation Business. 15] Ashokchand Daulatram Gandhi, Age years, Occupation Business. 16] Somanth Sangappa Kauthi, Age years Occupation Business. 3 S.A.No.367.05 +1 17] Ramayya Ransayya Kodam, Age years Occupation Business. 18] Sou Kanchanbai Rameshlal Bhalgat, All R/o Ahmednagar. 19] Baburao Pandharinath Baraskar (Since Deceased) Through his Legal Heirs. 19A. Abasaheb Baburao Baraskar, Age 35 years Occupation Agriculture, R/o Bhistbag Taluka and District Ahmednagar. 19B. Laxmibai Baburao Baraskar-Dead 19C. Tulsabai Baburao Baraskar-Dead 20] Govind Dagdu Dongare-Dead. ..RESPONDENTS WITH CIVIL APPLICATION NO.12783 OF 2005 IN SECOND APPEAL NO. 367 OF 2005 Laxman Pandharinath Baraskar (Deceased) Through Legal representatives ... Applicants V E R S U S Bhausaheb Firodiya Vrudhashram Santsh, Ahmednagar through its Trustees and others ... Respondents ... Mr. R.N.Dhorde,Advocate holding for Mr. B.T.Bodkhe,Advocate for Appellants Mr. R.R.Mantri,Advocate for respondent Nos 2 to 6,8,9,12 and 13. Mr. A.K.Gawali Advocate for respondent No.19A, 19/B,19/C and 20. ... 4 S.A.No.367.05 +1 WITH SECOND APPEAL NO. 466 OF 2005 Bhausaheb Firodiya Vrudhashram Santsh, Ahmednagar A Trust registered under the Bombay Public Trust Act, 1955, impleaded as co-plaintiff vide order dated 30-3-79 below Exh.64 through its trustees- 1] Motilal Multanchand Bora, President Age 89 years, Occupation Business 2] Abhaykumar Navalmal Firodiya, Vice-President Age 58 years, occupation Business, 3] Vasantlal Punamchand Bhandari, Vice-President Age 67 years, Occupation Business 4] Shantilal Nemichand Munit, Treasurer Age 70 years Occupation business 5] Prakash Motilal Firodiya, Secretary Age 60 years Occupation Business, 6] Suresh Yashwant Bhalerao, Secretary Age 60 years Occupation Business. 7] Shantilal Hiralal Bora, Member, Age 69 years, Occupation Business 8] Hastimal Chandmal Munot, Member, Age 69 years.Occupation Business 9] Shankarlal Amarchand Bhandari, Member, Age 66 Years,Occupation Business. 10] Hastimal Dagdumal Muthiyan, Member, Age 69 years Occupation Business. 5 S.A.No.367.05 +1 11] Ashokmal Motilal Firodiya Member, Aged Major -Died 12] Shamsundar Pemraj Sarda, Member, Age 63 years, Occupation Business. 13] Hiralal Uttamchand Bhandari, Member, Age 53 years Occupation Business. 14] Dhanraj Shrimal Pitale, Member, Age Major (DIED) 15] Amlokchand Daulatram Gandhi, Member, Age Major, (DIED) 16] Somanth Sangappa Kanthi, Member, Age 61 years Occupation Business. 17] Ramayya Narsayya Kodam, Member, Age 63 years Occupation Business. 18] Sou Kanchanbai Rameshlal Bhalgat Member, Age 49 years, Occupation Business All R/o Ahmednagar. ..APPELLANTS. V E R S U S. 1] Laxman Pandharinath Baraskar (Deceased) Through its Legal Heirs. 1A. Sau Subhadrabai Dada Gale,Age 75 years Occupation Agriculturist, and household work, R/o Miri Tal. Pathardi District Ahemadnagar. 1B. Smt. Parubai Madhav Shevalee, Aged 72 years Occupation Agriculturist and household work,R/o wadgaon Gupta Taluka and District Beed. 6 S.A.No.367.05 +1 1C. Sou Sarubai Dattatrya Nehul, Age 66 years Occupation Agriculturist, and Household Work R/o Navkhede Tal. Pathardi, District Ahmednagar. 1D. Sou Bhamabai Jagannath Kardile, Age 55 years Occupation Agriculturist and Household Work,R/o Jakhangaon Tal. and District Ahmednagar. 2] Hanumanta Laxman Baraskar,Age 55 years,Occupation Service,R/o Bhistbag Taluka and District Ahmednagar. 3] Bhagwanta Laxman Baraskar,Aged 60 years Occupation Service R/o Bhistbag Taluka and District Ahmednagar. ..RESPONDETS ... Mr. R.R.Mantri,Advocate for Appellant Nos. 2 to 6,8,9,12,13 and 16 to 18 Mr.R.N.Dhorde,Advocate holding for Mr.B.T.Bodkhe,Advocate for respondent Nos 1A to 1/D,2 and 3 ... CORAM : A.V. NIRGUDE, J. DATED : 3rd MARCH, 2010 ORAL JUDGMENT : 1] Both these two appeals can be disposed of by this common judgment. The Second Appeal bearing No. 367 of 2005 arose from the suit bearing Regular Civil Suit No. 188 of 1974, whereas another Second Appeal No.466 of 2005 arose from suit bearing Regular Civil Suit No. 384 of 1974. 7 S.A.No.367.05 +1 2] The facts leading to the litigation can be summarised as under- . Baburao and Laxman were brothers. They were gifted certain property in the form of pieces of lands and a house at Bhistbag area, Ahmadnagar. In the year 1974, a dispute arose between the brothers. On one hand Baburao filed Regular Civil Suit No. 384 of 1974 against Laxman and his children stating, the lands which were gifted to both the brothers were partitioned, and he received certain pieces of land as his share. He said, since he was old and issueless, his brother Laxman and his sons were trying to grab his property. He sought permanent injunction. On the other hand, Laxman filed his Regular Civil Suit No. 184 of 1974, in which he contended, the lands, which were gifted to both the brothers remained their joint property, so he sought partition and separate possession. 3] Baburao filed written statement and reiterated his stand that the lands were already partitioned and he received his share, and became owner of the same. However, Laxman did not file written statement in Baburao's suit. Only one of his sons viz. Bhagwan filed his written statement, in which he admitted that there occurred a partition between the brothers, and Baburao was cultivating the certain lands, but he said that Baburao having no resources/implements to 8 S.A.No.367.05 +1 cultivate the same, he requested him to cultivate the lands. He also claimed that, he acquired tenancy right in respect of the lands belonging to Baburao. . Both these suits were pending, Baburao having no issue of his own, he probably thought to gift his property to a suitable person. Sensing this, Laxman and his children filed registered lis pendence about the properties likely to be transferred during the pendency of the suit. Despite of such precaution, Baburao, eventually gifted the lands, which according to him fell to his share, to a public trust by name Bhausaheb Firodiya Vradhashram Sanstha, in 1976, vide a registered gift deed. Soon thereafter the trustees of this public trust sought intervention in Baburao's suit, where they were allowed to get themselves to impleaded as co-plaintiffs. However, apart from becoming parties to this suit in such manner the trustees of the trust did not add anything to the pleadings. In 1981, they made an application for making them as party-defendants in the other suit. Again they did not specifically made their pleadings but adopted the written statement filed by Baburao. Baburao during the pendency of the suit died in 1986, whereas Laxman also died in the year 1989. 9 S.A.No.367.05 +1 4] After this, the alleged legal representatives of Baburao namely, his adopted son Abasaheb, his divorced wife Laxmibai and his widow Tulsabai on one hand, entered into compromise with the sons of Laxman, who were already parties to the suit. In the compromise, the so-called legal representatives of Baburao admitted that their occurred no partition between the original parties to the suit and they gave up their opposition to the suits. However, the trustees were already parties to the suit bearing Regular Civil Suit no. 384 of 1974, filed by Baburao. The suit continued. Since the trustees were also party to the suit bearing Regular civil Suit No. 188 of 1974 filed by Laxman, same also continued. The trustees contested both the suits. . In suit ( Regular Civil Suit No. 384 of 1974), rather belated in 1988, after recording of part of their oral evidence they sought amendment in the plaint. They alleged that, during pendency of the suit, though Baburao had obtained an order of injunction, protecting his possession of the suit property, after Baburao's death the sons of Laxman dispossessed them from the suit lands etc. They sought prayer for possession added to the plaint. The learned Judge of the Trial Court held that the such amendment was not necessary, he said the co-plaintiffs/trustees could still lead their evidence in respect of the events that took place during the pendency of the suit. The trial Court, 10 S.A.No.367.05 +1 eventually dismissed the suit mainly because the trustees co-plaintiffs could not prove that they were put in possession after they took property as gift. The trial Court, however, indicated that he would otherwise accept their case in respect of gift etc., but suggested to them that they should file a fresh suit for possession. 5] In a suit (Regular Civil Suit No. 188 of 1974), as said above, the contest was between the sons of Laxman on one side and Trust on other side. The learned Judge of the trial Court held that, no partition took place between Baburao and Laxman in 1953, as asserted by Baburao in his written statement, so he decreed the suit. In view of these two judgments the Trustees alone went in Appeal. The appellate Court accepted their case that there was partition between Baburao and Laxman, way back in 1953, long before the litigation started in 1974. The appellate Court took into account various circumstances to give its findings that the partition not only took place but it was given effect also. On the other hand, the learned Judge of the Appellate Court dismissed the appeal arising from the judgment of dismissing the suit of Baburao. 6] These two judgments give rise to these Second Appeals. The first question that is required to be considered is, "Whether any substantial question of law is involved in the litigation that 11 S.A.No.367.05 +1 arise from Laxman's suit ? 7] The learned counsel appearing for the appellants contended that the learned Judge of the first Appellate Court did not notice the lacuna in the case of the trustees. He pointed out that neither they or their representatives entered into witness box to adduce substantial evidence about the partition that had allegedly taken place in the year 1953. He also pointed out that, the learned Judge of the first Appellate Court gave undue importance to the mutation entry of 1953, which apparently showed that the partition had taken place. He said, a mutation entry in respect of partition alone can not prove an act of partition unless substantial evidence is adduced in its support. He also pointed out that virtually there is no evidence on record to show that a witness having deposed about the factum of partition having taken place. He suggested that the Judgment of the first Appellate Court is perverse and requires interference. I am, however, not accepting this plea. Having gone through the judgments of the Courts below, I realized that the findings of the first Appellate Court in respect of the alleged partition is correct. Apparently, it was for the plaintiffs (Sons of Laxman) to prove that the mutation entry was not given effect, when they pleaded that no partition took place and mutation was never acted upon, and that the mutation entry was taken behind back of their 12 S.A.No.367.05 +1 father Laxman. Despite availability of the prime witness to this event Laxman, he was not examined as witness at all. His son Hanumant entered into witness box, but apparently he did not have personal knowledge about the events that took place between the brothers,in 1953 or so. He simply denied the factum of partition. This conduct on the part of Laxman and his son Hanumant became one of the reasons why the learned Judge of the first Appellate Court held that the partition took place. Other cogent reasons are mentioned in the judgment, as to why the learned Judge accepted the case of the partition in year 1953. I am not inclined to interfere in this finding of fact at this stage. 8] As regard the Second Appeal No. 466 of 2005, which arose from the suit filed by Baburao and continued by the trustees, I am not inclined to interfere in the findings recorded by the Courts below. I noticed that though the trustees had an opportunity to plead their case independently, though they had independent case in respect of their title, their attempt to take possession, their allegation that their adversaries namely Laxman and his sons did not allow them to take possession of the lands, they did not make suitable amendment in the plaint after they became co-plaintiffs way back in 1979. Their attempt to amend the plaint in 1989 was rather futile and though the Courts below did not deal with their 13 S.A.No.367.05 +1 application seeking amendment to the plaint, I am not inclined to interfere in such lapse, because the Courts below gave them liberty and rightly so, to file a suit for possession on the basis of title. So, in view of the litigation, I am not inclined to interfere in the findings recorded by the Courts below. The appeals should fail. The Second Appeals are dismissed. 9] In view of the dismissal of appeals, the Civil Application No. 12387 of 2005 in Second Appeal No. 367 of 2005 for stay also stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ok