1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.120 OF 1989 1 Vishwanath Baloba Nannajkar 2 Digambar Baloba Nannajkar ...Appellants.(Org.Defts.) v. 1 Ambrushi Somnath Nannajkar 1A) Smt. Malanbai Ambrushi Nannajkar 1B) Shri Nitin Ambrushi Nannajkar 1C) Shri Umesh Ambrushi Nannajkar 1D) Kum. Vandana Ambrushi Nannajkar All r/o 1570, Sanagargalli, Tal: Barshi, Dist. Solapur. 1E) Smt. Rudrani Bhagwant Bahirmal R/o. 54, Mandwa, Pune 36. 2 Shanting Somnath Nannajkar 3 Fulabai w/o Somnath Nannajkar All residents of 1570, Jayashankar Road, Barshi. ...Respondents. (Org.Plffs.) Mr. Rahul S. Kate, adv. For the Appellants. Mr. S.D.Thokade, adv. For the Respondent No.2. CORAM : J.H. BHATIA, J. DATED : 7th August , 2009 ORAL JUDGMENT: 1 This is the second appeal filed by the original defendants. 2 To state in brief, Shivling, Baloba and Baburao were real brothers. The plaintiff nos.1 and 2 are sons and plaintiff no.3 is widow of Somnath, who was son of Shivling. Defendants/appellants are sons of Baloba. According to the plaintiffs, their grandfather Shivling had some 2 disputes with his brothers and, therefore, dispute was referred to arbitration consisting of 3 arbitrators. Arbitrators passed an award on 13th July, 1966 and proposed partition of the family property including house property in three parts demarketed as portions A, B and C. Portion C was allotted to the share of Shivaling. Portion A was allotted to Baloba and Portion B was allotted to the share of Baburao. Accordingly, property was partitioned and the respective branches were in possession and use of the property allotted to them in the said oral partition. Defendants had no concern with suit property marked C or the machinery standing thereon or the manure stored thereon by the plaintiffs. In spite of this, defendants started obstructing possession of the plaintiffs and they threatened the plaintiffs against the sale of the manure and they also threatened to remove the machinery from the suit property belonging to the plaintiffs. With this contention, the plaintiffs sought perpetual injunction restraining the defendants from causing any interference in their possession of the suit property and from selling the manure stored on that land or causing any interference in the enjoyment of the machinery installed thereon by the plaintiffs. 3 Defendants contested the suit and denied that any partition had taken place. According to them, award passed by the arbitrator was 3 not registered nor it was filed in any Court nor it was acted upon. According to them, plaintiffs and Baburao and his sons had joined hands just to deprive defendants of their properties. According to them, plaintiffs are not exclusive owners of the suit property, machinery and the manure thereon and, therefore, suit is liable to be dismissed with costs. 4 Several issues were framed by the trial Court. After hearing the learned counsel for the parties, trial Court decreed the suit. Defendants preferred Regular Civil Appeal No.336/84. Their main contention was that award passed by the arbitrators was not admissible, therefore, the plaintiffs could not claim any exclusive right over the suit property on the basis of that award. Contention was rejected by the Appellate Court also. Both the Courts below came to conclusion that plaintiffs are in possession of the suit property in pursuance of the partition, which was accepted by all the co-sharers and which was acted upon by them. In the result, appeal came to be dismissed. Hence, the Second Appeal. 5 This appeal was admitted on the substantial questions of law incorporated in grounds 6 and 7 in the grounds of appeal: “6 Even if it is assumed that the Defendants were also party to the said award without admitting the 4 same it cannot be relied upon as the private award is a non testamentary instrument and would require registration under Section 17 of the Arbitration Act. If the award is not registered as required under the said Section, it must be taken as if the award does not exist at all. Therefore, it was wrong on the part of the Lower Courts to rely on the terms of this award to consider that there was a partitioned. The award should have been rejected into to.” 7 Both the Lower Courts ought to have seen that there is a presumption under the Hindu Law that all the properties belong to joint family are joint unless the contrary is proved. According to this presumption it should have been held that the Property in dispute is in possession of the joint family and not individually in the possession of the plaintiff.” 6 Heard the learned counsel for the Parties. There is no dispute that Shivling and his two brothers were members of the joint family and the said joint family was holding joint family property also. As long as partition would not take place, the said property would continue to be joint family property. None of them could claim exclusive title or possession over the same. However, in the present case, plaintiffs came to the Court on the ground that in view of the award passed by the arbitrators and the proposal made by them, joint family property was actually partitioned by metes and bounds among all the three branches of Shivling, Baburao and Baloba. The sketch map of the property was 5 also prepared and as per the proposal of the partition, property was divided into three parts A, B and C. Portion C was allotted to the plaintiffs while portion A was allotted to the share of the defendants while portion B was allotted to Baloba. Agricultural properties were also divided and entries were taken in the record of rights as well as city survey record showing the partition. Evidence was placed on record to show that not only entries of partition had taken place but the parties had acted on the basis of that partition. 7 Record reveals that defendant no.1 Vishwanath admitted in the cross-examination that the partition effected by the arbitrators was accepted. He also admitted that plaintiff Ambrushi was running the floor mill standing on the suit property and he was paying all the electricity charges for the floor mill. He also admitted that he had mortgaged western portion of the residential house in 1972 to Vijaykumar Bagale. Western portion of the property falls in portion A. He admitted that after the entries were taken in the revenue record about the partition of agricultural land, he had dealt with that property standing in his name without obtaining consent of any member of the other branches. He and his mother sold away gat no.1582 and half portion of gat no.1581 by registered sale deed in 1979. That property was allotted to the share of 6 the defendants in that partition. It was also admitted that parties were living separately since February, 1971 when the entries in city survey were recorded. It was also admitted that there is Ruston oil engine on the suit property and it is being used by the plaintiffm Ambrushi. Taking into consideration the material on record as well as the admissions given by the defendants, not only partition had taken place but it was also acted upon and the parties have used their respective property as exclusive owners. 8 It is contended by the plaintiffs that before causing obstruction in their possession over the suit property, same defendants had also some dispute with Baburao and said Baburao had filed a suit against Baloba, father of the defendants. That suit was decreed. It appears that after death of Baloba , First Appeal No.537/75 was filed by the legal heirs of Baloba, including defendants in this litigation. That appeal was dismissed by the High Court on 22nd November, 1988. In that litigation also Baloba had taken a stand that award of the arbitration was not acted upon but that was rejected. It is material to note that suit was not filed by the plaintiffs for implementation of the award made by the arbitrators . According to them, not only arbitrators had made award but had actually effected the partition. It is immaterial whether the award 7 was registered or whether it was submitted to the Court. It is also immaterial if no partition deed was executed and registered. It is well settled legal position that oral partition is permissible under the law and if on the basis of that award passed by the arbitrators, partition was actually effected and was acted upon by the parties, plaintiffs would become exclusive owners of the property allotted to their share in the partition. In the present litigation, plaintiffs filed suit for perpetual injunction on the ground that they were already owners of the suit property on the basis of partition and defendants were in interfering and obstructing in their possession. Therefore, there is no substance in argument that as the award passed by the arbitrators was not registered, it could not be admissible in evidence. Infact, even if that award is not admissible in evidence, it makes no difference, particularly when partition of the joint family property had taken place and it was acted upon. In view of these circumstances, I find no substance in the present appeal. Concurrent findings of the facts given by the trial Court suffer from no fault or drawback. 9 For the aforesaid reasons, appeal stands dismissed. (J.H. BHATIA,J.)