1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.790 OF 2003 WITH CIVIL APPLICATION NO.1190 OF 2003 Sayaji Dnyaneshwar Bhandare : Appellant versus Bapu Daulata Madane and ors. : Respondents. Shri. L.S.Gaikwad for the Appellant. Shri Rahul S. Kate for Respondent No.1. None for Respondent Nos.2A to 2E, 3 and 4, though served. CORAM : R.M.SAVANT, J. DATED : August 12, 2008 P.C. 1. The above Second Appeal arises out of the judgment and decree dated 3.7.2003 passed by the learned Joint Additional District Judge, Satara by which the judgment and decree dated 12.8.1999 passed by the trial Court was modified to the extent that Defendant No.2 was held entitled to 5/12th share in land bearing Gat No.96 in stead of 1/2 share as held by the trial Court. The said decree was 2 also modified in respect of mesne profits. Though the trial Court had ordered separate inquiry to recover mesne profits against Defendant No.1, the lower Appellate Court had set aside the said direction. 2. The Appellant herein is the original Plaintiff who had filed Regular Civil Suit No.168 of 1988 for partition and possession in respect of agricultural land bearing Gat Nos.96, 67, 71 and 68 situated at village Bhandramachi Tal.Koregaon. The foundation of the said suit was the Plaintiff's undivided share in the said suit properties and denial on the part of the Defendants to effect the partition. The said suit land was previously owned by the father of the Defendant Nos.1 and 2. The Plaintiff claimed to have purchased the western 1/2 portion of the land bearing Gat No.96 by a registered sale deed dated 14.10.1986 executed by Defendant No.2 in his favour. The mutation entry was accordingly effected in favour of the Plaintiff pursuant to the said sale deed. Since Defendant No.1 was obstructing the Plaintiff's enjoyment over the said land in question and in fact had filed Regular Civil Suit No.17 of 1985 for permanent injunction, the Plaintiff was compelled to file the instant suit for partition and separate possession. 3 3. The Defendant No.1 opposed the said suit inter-alia on various grounds amongst which was that the suit was not maintainable unless other properties of the family of Defendant Nos.1 and 2 are brought in common hotch-potch. The said suit was also opposed on the ground that Kalabai and Shilabai – the sisters of the Defendant Nos. 1 and 2 were not parties to the said suit. Defendant No.1 also opposed the said suit on the ground that he is cultivating all the properties owned by the family except one which was mortgaged to the Land Development Bank. It was also the case of Defendant No.1 that Defendant No.2 could not sale the property in question i.e. 1/2 portion of the land bearing Gat No.96 towards western side as Defendant No.1 had a right of preemption in respect of the family properties. In so far as land bearing Gat No.68 is concerned, it was contended that the said land is the self acquired property of Defendant No.1. 4. Defendant No.2 had also filed his written statement and denied that Defendant No.1 had become the owner by way of ouster 4 and adverse possession. It was contended on behalf of Defendant No.2 that there was joint cultivation of the suit properties and that they had ½ share each in the suit properties as is shown in the Revenue Record. The right of preemption claimed by Defendant No.1 was denied by Defendant No.2. Defendant No.2 also relied upon the sale deeds by which certain properties belonging to the family were alienated by Defendant Nos.1 and 2 along with their sisters in support of his case that there was no right of preemption in favour of Defendant No.1. 5. The parties went to trial. The trial Court, on the basis of evidence that was recorded, held that Defendant No.2 had 5/12th share in the ancestral property which included land bearing Gat No.96. The trial Court also held that in so far as land bearing Gat No.68 is concerned, the case of Defendant No.1 that it is a self acquired property has also not been controverted. The trial Court also held that there was no right of preemption in favour of Defendant No.1. 5 6. Though, in the body of the said judgment, the trial Court has recorded a finding that Defendant No.2 has 5/12th share, in the operative part the trial Court held that Defendant No.2 is entitled to 1/2 share in Gat No.96 of which partition and possession was sought by the Plaintiff. 7. Aggrieved by the said judgment and decree dated 12.8.1999 passed by the trial Court, Respondent No.1 herein filed Regular Civil Appeal No.240 of 1999 challenging the same. The lower Appellate Court confirmed the finding recorded by the trial Court in so far as case of right of preemption, adverse possession and entitlement of the Plaintiff for partition is concerned, however, the lower Appellate Court modified the said decree to the extent that the Plaintiff could claim 5/12th share in the land bearing Gat No.96. The lower Appellate Court after so modifying the decree passed by the trial Court dismissed the said Appeal. 8. It is sought to be contended on behalf of the Appellant that though the trial Court had granted 1/2 share to the Plaintiff in the land 6 bearing Gat No.96, the lower Appellate Court, without there being any appeal by the sisters and without the sisters being parties to the proceedings, had modified the said share by holding that the Plaintiff is entitled to 5/12th share in stead of 1/2 share as held by the trial Court. 9. In my view, the said submission is totally mis-founded. As mentioned in the earlier part of this Judgment, the trial Court in para 14 of its judgment has specifically recorded a finding that the Plaintiff is entitled to 5/12th share. This the trial Court has arrived at the said finding taking into consideration the relevant Sections of the Hindu Succession Act. However, in the operative part of the order, the trial Court has erroneously recorded that the Plaintiff is entitled to 1/2 share in the land bearing Gat No.96. It is in the said circumstances that the modification of the decree by the lower Appellate Court holding that the Plaintiff is entitled to 5/12th share was necessitated 7 11. In my view, the lower Appellate Court has rightly exercised its appellate jurisdiction in modifying the said decree by holding that the Plaintiff is entitled to 5/12th share. 12. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The above Second Appeal is accordingly dismissed. In view of dismissal of the above Second Appeal, the Civil Application No.1190 of 2003 does not survive and the same is disposed of as such. [R.M.SAVANT, J]