( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ SECOND APPEAL NO.223 OF 1985 SECOND APPEAL NO.223 OF 1985 SECOND APPEAL NO.223 OF 1985 Vasant Shankar Patil (Deceased) Through his LRs. Residing at Pezati-Dholpada, Tal. Alibag, Dist. Raigad 1. Smt.Nirmala Vasant Patil 2. Mohan Vasant Patil 3. Sharad Vasant Patil 4. Sudhir Vasant Patil 5. Vikas Vasant Patil 6. Prafulla Vasant Patil 7. Sou.Chaya Harishchandra Thale ..Appellants V/s. 1. Shankar Balu Patil (Deceased) 2. Prakash Shankar Patil 3. Chandrakant Shankar Patil All residing at Ambeghar, Pali-Naka, Taluka Alibag, Dist.Raigad. ..Respondents And Smt. Parvatibai Shankar Patil (Deceased) heirs of Respondent No.1 ( 2 ) ...... Mr.Rajiv L. Patil with A. Kulkarni for the appellant Mr. G.V. Limaye for respondant Nos.1 to 3. ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 8th April, 2009 DATED : 8th April, 2009 DATED : 8th April, 2009 Oral Judgment : Oral Judgment : Oral Judgment : 1. The appellant filed Regular Civil Suit No.66 of 1980 against the respondents herein seeking partition in respect of certain properties in the Court of learned Civil Judge, Senior Division, District Raigad. During the pendency of the suit, the appellant applied for amendment of the plaint and wanted to include two properties namely land bearing survey No.15 Hissa No.3B2 and land situated at village Pezari Survey No.55 Hissa No.1B as the properties which should become the subject matter of partition. That application for amendment was granted and that is how the plaint was amended so as to add clause (d) after clauses 2 a, b and c. In the prayer clause, it was prayed that partition be effected in respect of properties listed in paragraph 2 a, b and c. It ( 3 ) appears that through oversight, the amendment was not made so far as prayer clause is concerned and it appears that the word (D) remained to be added in the prayer clause. The learned Civil Judge, Senior Division at Alibag by his judgment and decree dated 20th June, 1981 dismissed the suit. Being aggrieved by the said judgment, the appellant preferred the appeal before the learned District Judge being Appeal No.114 of 1981. The said Civil Appeal No.114 of 1981 was decided by judgment and decree dated 13th September, 1984. The learned District Judge, Raigad dismissed the said appeal. Against the said judgment and decree dated 13th September, 1984 this second appeal has been filed. 2. It is seen that a document at Exh.25 purported to have been executed between the parties to the suit was produced before the Court. The said document was typed on a stamp paper purchased on 26th June, 1961 and an agreement dated 13th September, 1960 was written on the said document. On the said document, the learned District Judge has given sufficient thought however ultimately he has not accepted the said document to hold that there was a family arrangement / partition. 3. The learned Judge before whom the suit was ( 4 ) tried had observed that various properties in regard to which partition was sought were not joint family properties. The learned District Judge gave a contrary finding and arrived at conclusion that the various properties in regard to which partition was sought were joint family properties. Against this findings no appeal is filed by respondents and as such the said finding will have to be read for the purpose of deciding the appeal. 4. The learned District Judge after appreciating the text of the plaint came to the conclusion that according to the appellant there was a family arrangement prior to the filing of the suit and therefore appellant’s claim for partition is not maintainable and that is how he dismissed the appeal. 5. I have perused the judgment delivered by learned District Judge. Once it is observed that various properties covered in the plaint are properties of the joint family properties, the only question which remains to be decided is whether the appellant is entitled to partition. 6. Reference to document at Exh.25 is found in the judgment of the learned District Judge, however the said document at Exh.25 cannot be read in evidence ( 5 ) as the said document was scribed on stamp paper purchased in the year 1961 and the substance of the document was of the date 3rd September, 1960. Hence, the said document is of no use to any of the parties. 7. In paragraph 15, the learned District Judge has arrived at conclusion that there was a family arrangement between the parties and hence there was no question of partition of the various properties. With the assistance of learned advocates on both the sides, I have perused the original plaint. In the original plaint at para 1, the plaintiff has specifically stated that in order to see that there are no quarrels on day to day basis, the appellant started residing in a different house with the consent of all concerned and there is a specific averment in the plaint at para 1 that there is no partition between the appellant and the respondents. The appellant has fairly stated in paragraph 1 that land bearing survey No.15 Hissa No.3B2 was mutated in his favour so that he does not suffer in terms of day to day food as he was staying separately. 8. In paragraph No.2 of the plaint, various properties are stated in respect of which partition is demanded and thus properties are divided into sub-paras as 2A, B, C and D. ( 6 ) 9. The question before this Court is whether the observations of the learned District Judge that there has been already a partition based on the averments in paragraph 1 should be accepted or not. After having considered the text of paragraph 1, I am inclined to observe that the appellant at the time of drafting of the said plaint, wanted to indicate that survey No.15 Hissa 3B2 was given to him for use so that the appellant does not suffer on day to day basis. The learned advocate Mr.Limaye had submitted that the said survey No.15 Hissa 3B2 was given to the appellant forever by way of the partition. After having considered the text of the said paragraph read with paragraph 2, I am inclined to observe that the finding recorded by learned District Judge that there was a family arrangement prior to the filing of the suit cannot be accepted and the averment in paragraph 1, prima facie, indicates that the appellant wanted to contend that because he was staying separately, the land bearing Survey No.15 Hissa No.3B2 was given to him for enjoyment and not forever as has claimed by respondents. Precisely, this fact will have to be re-investigated and the trial Court will have to give a finding thereon. It is pertinent to note that in paragraph 2(d) the land bearing Survey No.15 Hissa 3B2 is also included, which will mean that according to ( 7 ) the appellant said land bearing Survey No.15H 3B2 had not undergone a partition. 10. After having considered the entire matter it is necessary to set aside the finding given by the learned District Judge as regards existence of a family arrangement as between the parties and the matter will have to be remanded to the Court of learned Civil Judge, Senior Division, Alibag, District Raigad for deciding as to whether there was a family arrangement between the parties as contended by the respondent before filing of the suit and as to which properties are required to be partitioned if family arrangement has not taken place. Whether Survey No.15 Hissa 3B2 is given to the appellant forever and nothing is due and receivable by the appellant is also required to be decided. In my view, once this course is adopted, the rights of the respective parties shall get crystalized and the parties shall be able to enjoy their respective properties. 11. In my view, the learned District Judge misconstrued the entire matter and recorded a finding that there was a family arrangement. For the reasons mentioned aforesaid, I pass the following order. ORDER ORDER ORDER ( 8 ) . The judgment and decree dated 13th September, 1984 passed by learned District Judge in Civil Appeal No.114 of 1981 is set aside. . The Civil Suit No.66 of 1980 is restored to the file of learned Civil Judge, Senior Division, Alibag, District Raigad. . Record and proceedings received by this Court be sent back to the Court of learned Civil Judge, Senior Division, Alibag, District Raigad. . The learned Civil Judge, Senior Division, Alibag, District Raigad shall give opportunity to the respective parties to lead additional evidence if any of the party wishes to do so and thereafter decide the suit on merits by deciding following points. (i) Whether there was a family arrangement between the parties as contended by the respondents i.e. original defendants before the filing of the suit and as to which properties are required to be partitioned if ( 9 ) family arrangement has not taken place. (ii) Whether land bearing Survey No.15 Hissa No.3B2 situate at village Ambepur is given to the appellant and nothing is due and receivable by appellant. . In the facts and circumstances of this case, there shall be no order as to costs. . The learned Civil Judge, Senior Division, Alibag, District Raigad shall hear and dispose of the matter within a period of six months from the receipt of the record from this Court. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)