1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.414 OF 2005 WITH CIVIL APPLICATION NO.1315 OF 2004 Shri Ankush Dyaneshwar Patil & Anr. ...Appellants. v. Janabai Namdeo Kalsule ...Respondents. And Shri Sitaram Nivrutti Patale & Anr. ...Respondents. Mr.Sugandh B. Deshmukh i/by Anil V. Anturkar, advs. For the Appellants. Mr.Milind Deshmukh, adv. For the Respondent No.1. CORAM : J.H. BHATIA, J. DATED : 5th August , 2009 P.C. 1 Heard the learned counsel for the appellants, who are the original defendant nos.3 and 4 and the respondent no.1, who is the original plaintiff. None for the other respondents. 2 Admitted facts are that, one Daji Krishna Pawar left behind certain property inherited by three daughters namely Anusuyabai, Tanabai and Sugandhabai. Tanabai expired in 1961 and she was succeeded by her son respondent no.2/Sitaram and daughter, respondent no.3 Lochanabai. Anusuyabai died issueless. Three sisters had inherited 21 acres of land in survey no.215. Out of that, said sisters had initially 2 sold away 7 acres of land, 14 acres of land remained with them and it is comprised in gat no.980 admeasuring 12 acres and 3 gunthas and in gat no.955, admeasuring about 2 acres. Anusuyabai had bequeathed 78 R of land out of gat no.955 to plaintiff Janabai by executing a will. Sitaram son of Tanabai leased out 10 acres and 3R land in favour of the defendant no.3 and 4, who are the present appellants. Sugandhabai and her daughter Janabai filed regular civil suit no.497/92 for partition and separate possession in respect of 12 acres 3 gunthas. Sugandhabai died during the pendency of the suit and her daughter Janabai continued the same. The suit was decreed. The trial Court passed the decree and directed that land gat no.955 be given to the share of the plaintiff and at the time of partition plaintiff would be entitled to 1/3rd share by way of partition. That judgment was challenged in Civil Appeal No.132 of 1995 by the defendant nos.3 and 4. Appeal was partly allowed. The appellate Court directed that the respondent no.1, i.e., the original plaintiff shall get 1/3rd share in the suit land by way of partition and the respondent nos. 2 and 3, i.e., original defendant nos.1 and 2 shall together get 1/3rd share. It was further declared that plaintiff/ respondent no.1 is entitled to 78 R of land out of 1/3rd share of Anusuyabai and the plaintiff and the defendant nos.1 and 2 (Respondent nos2 and 3) would be entitled to 1/3rd 3 share each out of the remaining share and Anusuyabai. That judgment has been challenged in the second appeal by the original defendant nos.3 and 4. 3 The learned counsel for the appellants could not point out any illegality in the impugned order. However, he contended that the respondent no.2 Sitaram had leased out 10 acres 3 gunthas land to the present appellants and they are the tenants of the same and, therefore, their tenancy should have been protected. However, it appears that three sisters were co-owners and Sitaram was representing only branch of his mother. As one of the co-owners, he could not have created tenancy over the property of other co-owners. Even if the present appellants are the tenants, they could claim tenancy only to the extent of share of Sitaram and not of other two sisters or other co-owners. The learned counsel for the appellants contended that the Courts below should have given direction that at the time of partition, the land leased out to the present appellants be allotted to the share of Sitaram so that the possession of the present appellants as tenants could be protected. It appears that out 14 acres of land, plaintiff would be entitled to 1/3rd share in her own right and Sitaram and Lochanabai would be entitled to 1/3rd share as representative of their mother Tanabai. 78 R of land out of 1/3rd share of 4 Anusuyabai would also go to plaintiff and out of that remaining share, Anusuyabai would be entitled to 1/3rd share as per the decree passed by the Appellate Court. Directions can be given to protect the possession of the appellants, as far as possible, within the limit of the share of the respondent no.2 Sitaram. 4 Therefore, in the interest of justice, I pass the following order: i At the time of partition, as far as possible the land in possession of the appellants shall be allotted to the share of Sitaram subject to the limit of his share. Subject to this observation, appeal stands dismissed. 5 As the appeal itself is finally disposed off, civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)