1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 675 OF 2008 Sunil Narayan Wadekar & ors........Appellants versus Pratap Ramchandra wadekar & ors........ Respondents. Mr. Sanjeev J. Rairkar i/b N.C. Walimbe adv. for the Appellants Mr. N.V. Walawalkar i/b S.N. Chandrachood adv. for the respondents CORAM: RANJIT V. MORE, J. DATED : 10th DECEMBER,2008. P.C.: 1. Heard Mr. Rairkar learned counsel for th appellants and Mr. Walawalkar learned senior counsel for the respondents. The appellants are the original plaintiffs and the respondents are the original defendants. 2. The suit was filed for partition, separate possession and perpetual injunction. There are five suit properties namely (1) Survey no. 27/3 admeasuring about one acre and 17 gunthas, (2) Survey no. 71/13-B admeasuring about three acres and 35 gunthas, (3) survey no. 89/A-7 admeasuring 5 R., (4) City survey no. 29 admeasuring 210 sq.mtres and (5) City survey no. 386 admeasuring 54.4 sq.metres. The case of the Plaintiffs is 2 that the land at serial no.2 i.e. 27/13-B admeasuring about three acres 35 gunthas is self acquired property of plaintiff no.3. It was also their case that the property at serial no.1 i.e. Survey no. 23/3 admeasuring about one acre 17 gunthas belonged to joint family property which was sold out by the father of defendant nos. 1 to 3 and therefore the same should be alloted to their share. The partition was claimed in the property at serial nos.3, 4 and 5. The trial court granted partition to the plaintiffs in the property at serial nos. 3, 4 and 5. So far as the property at serial no. (2) is concerned, the trial court granted injunction in favour of Plaintiffs and defendants were restrained from causing any obstruction over this land, on the ground that the same is self acquired property of plaintiff no.3. The respondent/defendants challenged the trial court's decree by filing appeal before the lower appellate court and the lower appellate court partly allowed the appeal and the partition was granted to appellant and respondent in all the properties except S. No. 27/3 the property at serial no.1. 3. As far as the land at survey no. 27/3, which is mentioned at serial no. 1 in the annexure, annexed to the plaint is concerned, the finding of fact has recorded by the lower appellate court that this property was sold out in the year 1950 to one Pathare. The finding of fact is also recorded that this property was also sold out for legal necessity. The finding was also recorded on the basis of recitle in the sale deed that this 3 property is being sold out for the purposes of marriage of sister of Ramachandra and Narayan. There is no reason to interfere in this finding of fact. 4. Mr. Rairkar, learned counsel submitted that the appellants are mainly aggrieved by the impugned order in respect of property at serial no. 2, i.e. S.No. 71/13-B. He does not dispute the findings of courts below regarding the properties at serial nos. 3, 4 & 5. So far as the property at serial no.2 namely land survey no. 71/13B is concerned, there is no dispute that the property initially was joint family property, and this property was taken into the possession by the Government under section 72 of the Land Revenue Code for want of payment of irrigation dues. The possession was taken over in the year 1952. There is also no dispute that the plaintiff no.3 Narayan deposited the arrears of irrigation dues with the Government in the year 1973 and thereafter this property was alloted to him. Now the question which is required consideration is whether this property is self acquired property of plaintiff no.3. Narayan or is a joint family property? If the property is held to be self acquired property of Narayan then obviously same will not be available for partition. The learned counsel for the appellant in this regard submitted that this property was taken into possession by the Government for arrears of irrigation dues and in view of the provisions of section 72 of the Land Revenue Code, same was vested with the Government, and after the irrigation dues were 4 paid over by the plaintiff no.3 the property was alloted to Narayan and therefore same becomes his self acquired property, and hence trial court's order could not have been interfered by the lower appellate court. Mr. Walawalkar learned senior counsel for the respondent per contra submitted that the plaintiff has made out a case in the plaint that on the failure of Mr. Genu father of Narayan and Ramachandra to pay the irrigation dues, the land was attached, and merely because plaintiff no.3 Narayan paid over the arrears in the year 1973, the property will not become his self acquired property. 5. I find no merit in the submission of learned counsel for the appellant in this regard. The land survey no. 17/13B was belonging to joint family and for failure to pay irrigation dues on the part of father of plaintiff no.3 and grand father of the defendant, the land was attached by the Government. In my considered view, merely because the plaintiff no.3 cleared the arrears of irrigation dues and got alloted the property in his own name, same will not become his self acquired property, especially when it is not case of Plaintiff no.3, that said property was lest to the joint family. The plaintiff no.3 at the most is entitled for ½ contribution from the defendant for the payment of arrears of irrigation dues which he deposited with the Government in the year 1973. 6. In the facts and circumstances mentioned above I am of the view that the conclusions arrived at by the lower appellate 5 court cannot be faulted with. The appeal is devoid of any merit. Second appeal is therefore dismissed. 7. In view of the dismissal of the second appeal, civil application does not survive and the same is also dismissed. 8. At this stage, the learned counsel for the appellant seeks protection for a period of 12 weeks. Mr. Walawalkar senior counsel for the respondent submitted that 12 weeks will be too longer period. The trial court granted permanent injunction in respect of suit land 71/13B and there was no stay of this decree during pendency of the appeal. Admittedly appellants are in possession of the property. In that view of the matter and in the interest of justice both the parties are directed to maintain statusquo for a period of eight weeks. (R. V. More, J.)