1 sa66-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.66 OF 2010 Nathu Dattu Tungar since deceased through legal heirs Prabhakar Nathu Tungar and ors. ..Appellants Vs. Bhausaheb Murlidhar Tungar and ors. ..Respondents ......... Mr.P.B.Shah, for appellants. Mr.Sandeep Shinde, for respondent nos.1 to 3. ......... CORAM: R.G.KETKAR, J. DATE : 2nd AUGUST, 2010. P.C. : Heard Mr.P.B.Shah, learned counsel for the appellants and Mr.S.K.Shinde, learned counsel for the respondent nos.1 to 3. 2] This appeal is preferred by the heirs and legal representatives of original defendant no.1 Nathu Dattu Tungar challenging the judgment and decree dated 11 th September, 2009 passed by learned Adhoc District Judge-1 Nashik in Civil Appeal No.347 of 2007 arising out from the judgment and decree dated 17 th April, 2004 passed by the learned Single Judge, J.D., Nashik Road, Nashik in Regular Civil Suit No.185 of 1995 (Old R.C.S.No.235 of 1983). By these judgments, the courts below decreed the suit instituted by the respondent/plaintiffs and declared that they are entitled to half share in the suit 2 sa66-2010.sxw properties, more particularly, described in paragraph no.1 of the plaint. The courts below directed the original defendant nos.1 and 3 to 14 to hand over the half share out of suit properties to original plaintiffs and defendant no.2. 3] Mr.Shah submitted that initially the suit was instituted in the court of the Civil Judge, Junior Division, Sinnar, District Nashik which was subsequently transferred to the court of Civil Judge, Junior Division, Nashik Road, Nashik. The heirs and legal representatives of Nathu could not get instructions from the advocate representing them and, consequently, they did not get sufficient opportunity to participate in the trial. He submitted that the heirs of the original Defendant no.1 Nathu were not vigilant in the proceedings and, therefore, by imposing certain conditions upon them, the decree passed by the courts below may be set aside and the matter may be remanded to the trial court for deciding the same afresh in accordance with law. He submitted that the written statement was filed on behalf of the original defendant no.1 which was adopted by his legal representatives by filing a purshis at exhibit 44. They have raised valid defence in the written statement and since they did not get opportunity, the matter may be remanded to the trial court. In support of submissions, he relied upon the judgment in the case of M.K.Prasad Vs. P. Arumugam, AIR 2001 SUPREME COURT 2497. 4] On the other hand, Mr.Shinde submitted that the contesting defendant no. 1 Nathu was duly served. After his death, legal representatives were brought on record and they adopted the written statement filed by Nathu. The legal representatives of Nathu had filed Vakilpatra on 9 th January, 1998 and engaged two advocates namely Mr.R.P.Lone and Mr.V.G.Pekhale. He, therefore, 3 sa66-2010.sxw submitted that if the legal representatives of the defendant no.1 did not avail of the opportunity, they cannot make any grievance about passing of decree by the courts below. On merits, he submitted that the suit is instituted in the year 1983 and despite service of the suit summons and filing of the written statement by the legal representatives of the defendant no.1, they did not cross-examine the evidence of plaintiffs’ witness Bhausaheb. They also did not lead their evidence in support of their defence. Their defence was that by way of family arrangement, the properties of the maternal uncle of respondent No.1 at Gonde were allotted to the share of original plaintiffs and the properties at Mouje Shinde came to the share of the original defendant no.1 Nathu. The other plea in the written statement was about the acquiring ownership by way of the adverse possession. However, in order to substantiate their defence, the defendant no.1 or legal representatives of the defendant no.1 did not enter the witness box. He, therefore, submitted that no fault can be found in the impugned judgments and decree of the learned courts below. 5] Perusal of the material on record indicates that the defendant no.1 Nathu was duly served and filed written statement at exhibit 15. In the written statement, it was contended that his maternal uncle Krishna Dagdu Tambe had agricultural land at village Gonde. His maternal uncle had only one daughter who predeceased him and therefore he transfered the properties at Gonde in the name of the plaintiff no.1 and the family arrangement was that the said properties were to remain with plaintiffs and the suit properties at Mouje Shinde will be transferred in the name of original defendant no.1 Nathu. In the alternate, it was submitted that original defendant Nathu became the owner by adverse possession. However, in order to substantiate this defence, no 4 sa66-2010.sxw evidence was led. Even, the plaintiffs’ witness Bhausaheb was not cross- examined. At any rate, the properties at Gonde were not ancestral of Defendant No.1 . In view of this, it cannot be said that there was family arrangement in respect of the properties. In so far as the plea of adverse possession is concerned, the same is not established by the legal representatives of the defendant no.1. It is the matter of record that the suit properties were originally belonging to Dattu who died on 9 th March, 1950 leaving behind the original defendant No.1 Nathu and Murlidhar, father of the plaintiff and defendant no.2. After the death of Dattu, names of Murlidhar and original defendant no.1 were recorded. In view of this, the courts below rightly came to the conclusion that the suit properties were joint properties and, accordingly, ordered partition. 6] I do not find that the courts below committed any error in decreeing the suit instituted by the plaintiffs. Second Appeal does not involve any substantial question of law. Second Appeal is dismissed. In view of the dismissal of the Second Appeal, the Civil Application does not survive. The same is rejected. 7] During the hearing of Second Appeal, Mr.Shinde, learned counsel for the respondent nos.1 to 3 made a statement that the respondent nos.1 to 3 will not execute the decree. Now, Mr.Shinde makes a statement that for a period of four weeks the said statement shall remain in force. The statement is accepted. Order accordingly. [R.G. KETKAR, J.]