1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.246 OF 1989 Baburao Vishwanath Adsul .. Appellant/ ori. Pltff. versus 1. Raghunath Vishwanath Adsul .. Respondent/ (died) by his Legal heirs:- ori.deft.1 (a)Lavangabai w/o Raghunath (b)Sow Suman w/o Waman Mahadal 2. Dagdu Vishwanath Adsul (died) through L. Rs.:- (i) Manohar s/o Dagdu Adsul, age 25 years, occup.business, r/o Nava Mondha, Beed. (ii) Ramesh s/o Dagdu Adsul, age 22 years, occup.business, r/o as above. (iii) Anusuyabai wd/of Dagdu Adsul age 47 years, occup. household, r/o as above. 3. Gangaram Vishwanath Adsul (died) through L.Rs.:- (A) Latabai w/o Bharat Zadap age 25 years, occupation nil R/O Opp. S.T.Stand, Navin Nagar Road, Janki Nagar, Sushil Apartment, Sangamner Tq.Sangamner District Ahmednagar. (B) Indubai wd/o Gangaram Adsul age 47 years occup. nil, r/of 2 Nava Mondha, Beed. 4. Sonabai w/o Vishwanath Adsul (deleted as per order below Exhibit 5 dtd.25th Oct.1988) Respondents ori. defts. 5. Rukhminibai w/o Narayan Paralkar No.2 to 5. (Name of defendant No.6 Rahibai w/o Nivrati Tamaber, was deleted in the lower court). WITH SECOND APPEAL NO.518 OF 1989 Dagdu Vishvanath Adsul Appellant/ (died) through L.Rs.:- Deft. No.2. 1/1. Manohar s/o Dagadu Adsul age 37 years, occup.business, R/of Old Mondha, Beed, Taluka and District Beed. 1/2.Ramesh s/o Dagadu Adsul, age 34 years, occup.business, r/of Old Mondha, Beed, Taluka and District Beed. 1/3. Anusayabai w/o Dagadu Adsul age 60 years, occup.household, r/of Old Mondha, Beed, Taluka and District Beed. VERSUS 1. Baburao Vishvanath Adsul 2. Raghunath Vishvanath Adsul, since deceased through Legal representatives:- 2/1. Lawangabai w/o Raghunath Adsul 2/2. Sau Suman w/o Waman Mahadar, 3 3. Rukhmanabai w/o Narayan Paralikar 4. Gangaram Vishvanath Adsul .. Respondents (No.1 original plaintiff, No.2(1) and 2(2) are legal representatives of original Defendant Nos.1 to 3. No.3 is original defendant No.5 & No.4 is original defendant No.3.) Shri Dhananjay Deshpande, Advocate for appellant in Second Appeal No.246 of 1989 and for Respondent No.1 in Second Appeal No.518 of 1989. Shri B.S.Kudale, Advocate for Respondent Nos. 2/1 & 2/2 in Second Appeal No.246 of 1989 and for Appellant in Second Appeal No.518 of 1989. Shri S.S.Chaudhary, Advocate for Respondent Nos.1(a) and 1(b) in Second Appeal No.246 of 1989. -------------------------------------------------- Coram: P.R. Borkar J. Date: September 24, 2009 ORAL JUDGMENT 01. These two second appeals arise out of judgment and decree in original Regular Civil Suit No.126 of 1979 for partition and separate possession decided by III Joint Civil Judge (Junior Division), Beed, on 31.3.1981. 02. Briefly stated, facts admitted before this court giving rise to these two appeals are 4 that one Vishvanath Adsul was the common ancestor. He died in 1959. He was survived by widow Sonabai who was original defendant No.4, sons Plaintiff- Baburao, defendant No.1 Raghunath, defendant No.2 Dagadu and defendant No.3 Gangaram and two daughters i.e. Defendant No.5 Rukhminibai and Defendant No.6 Rahibai. Rahibai married to Nivratti and was aged 35 years of age when the suit was filed. She was residing at village Tirthapuri, Taluka Ambad, with her husband. Following four properties were described as suit properties, namely; (i) House No.1579 (old No.1251) situated at Sale Galli, Beed. (Property "A") (ii) Plot No.2227 (old No.1777/1) situated in New Mondha, Beed, in which Kirana shop was being run by defendant No.2 Dagadu. (Property "B") (iii) Plot No.55 situated of Market Committee New Mondha, Beed, in which hotel in the name and style "Baba Bhavan" is run.(Property "C") (iv) Plot of Wakf Board situated New Mondha, Beed, in which Hotel Maher is run. (Property "D). 5 The properties are described in details in the plaint and hereinafter the same are referred to as properties "A", "B", "C" and "D" for the purpose of convenience. Rahibai, Dagadu, Raghunath and Gangaram have expired and their legal representatives are brought on record. 03. Original plaintiff Baburao filed suit averring that all four properties "A" to "D" are the ancestral properties and he claimed 8/35th share in the same. Defendant Nos. 2 to 5 filed written statement at Exh.30 and according to them, property "A" was the ancestral property and property "B" was purchased by defendant No.2 after partition in 1970. 04. Original Defendant No.1 Raghunath in his written statement stated that property "A" was given to his share in the partition in 1960 and that fact was admitted in compromise arrived at in R.C.S. No.93 of 1960 filed by Sonabai and her sons against him. He also claimed that he has become owner of the said property by adverse possession. 6 05. The trial court decreed the suit and held that the plaintiff Baburao was entitled to 8/42th share in all 4 properties. Theory of previous partition was disbelieved. It was also disbelieved that defendant No.1 Raghunath perfected title by adverse possession. 06. As against the said decision of the trial court, heirs of original defendant no.1 Raghunath filed Regular Civil Appeal No.93 of 1981 and original Defendant Nos. 2, 3 and 4 filed R.C.A. No.18 of 1982. The learned Additional District Judge, Beed, who decided those two R.C.As. by his common judgment dated 10.2.1989, allowed R.C.A. No.93 of 1981 and held that Raghunath was exclusive owner of property "A" (house No.1251) and so far as rest of the properties are concerned, the plaintiff is entitled to 8/42th share therein. Learned Judge dismissed R.C.A. No. 18 of 1982. Being aggrieved thereby, original defendant No.2 Dagadu filed Second Appeal No.518 of 1989 and plaintiff Baburao filed Second Appeal 7 No.246 of 1989. 07. Second Appeal No.246 of 1989 was admitted by order dated 7.11.1989 on the substantial questions of law enumerated in ground Nos. (1), (3), (4) and (5) of appeal memo which are as follows. "(1) The learned Additional District Judge erred in law in holding that the possession of Defendant No.1 Raghunath is adverse, when the Defendant No.1 Raghunath had taken a plea in written statement that he is in possession of the House No.1251 old, 1579 New at Salgali as an owner. (3) That, the learned Additional District Judge erred in holding the compromise as alleged by Defendants had taken place in Regular Civil Suit No.93 of 1960 when the compromise deed was not produced on record and was duly proved by the Defendant No.1. (4) The learned Additional District Judge misinterpreted the case law reported in AIR 1957 SC 314 P.Laxmi v/s L. Laxmi, when the Honourable Supreme Court itself in the aforesaid in para 4 had laid down that the possession of co- heirs cannot be presumed to be adverse but it should be presumed that it is on the basis of joint title. 8 (5) The learned Additional District Judge erred in law in holding that the suit House No.1251 is not under the common enjoyment of the joint family. When the Defendant Raghunath himself admitted that the suit property was joint Hindu family property and stood in his name of his father and when Raghunath had specifically pleaded that other Defendants including the step-mother did not allow him to reside in it. ?" 08. Second Appeal No.518 of 1989, by order dated 18.12.1989, was admitted on substantial questions of law enumerated in ground Nos.4,7,10 and 11 of the appeal memo, which are as follows; "(4) That the present Appellant had not been given opportunity to lead evidence. (7) That the lower Court have wrongly brushed aside the certified copy of compromise arrived at in Regular Civil Suit No.93 of 1960. (10) The Issue No.4 was whether the Defendants Nos. 2 to 4 (The present Appellant) prove that partition of joint family took place in 1970 and Plot No. 2227 was allotted to the share of Defendant No.2 i.e. present Appellant. This issue was answered in negative. When first two issues answered accordingly which ultimately shown that the partition took place, then the learned lower Appellate Court ought to have answered this issue in affirmative. 9 (11). The learned lower Appellate Court have wrongly answered the Issue No. 4 otherwise particularly when other issues are answered accordingly." 09. Heard Shri B.S. Kudale, learned counsel representing the heirs of deceased defendant Dagadu, Shri Dhananjay Deshpande, learned counsel on behalf of original plaintiff Baburao and Shri S.S.Chaudhary, learned counsel for original defendant No.1 Raghunath. Together, learned counsel for the parties, have taken me through the judgments of the trial court and first appellate court and also the record and proceedings. 10. One of the basic question that requires consideration is whether the evidence led by original Defendant No.1 Raghunath that in the partition that took place in 1960 he was allotted property A and thereafter his possession and allotment of property to him was confirmed in R.C.S. No.93 of 1960 is trystworthy. In order to prove the same, copy of plaint in R.C.S. No.93 is placed on record by Advocate Shri B.S.Kudale which is taken on record and marked "X" for the purpose 10 of identification. Admittedly, it was a suit filed by present plaintiff and defendant Nos. 2 to 6 against present defendant No.1 Raghunath. It is averred in the said suit that property "A" which was originally having house No.1251 was ancestral property and they have 6/7th share in the same. Raghunath refused to partition the house property and, therefore, they filed suit for partition and separate possession of their 6/7th share. The suit came to be withdrawn in view of compromise that was arrived at vide Exhibit 9. The copy of compromise is produced on record at Exh.51/E which is a certified copy and it shows that the original was signed by plaintiff and defendants. As per the compromise, the house was allotted to defendant No.1 Raghunath and it was also observed that the plaintiffs therein i.e. present plaintiff and Defendant Nos. 2 to 6 would not have any concern with the said property. At the same time, defendant Raghunath has given up his rights over all other immovable and movable properties of Vishvanath. It is true that as observed by the trial court when original file of R.C.S. No.93 of 11 1960 was called and produced in the court, duplicate file was destroyed and as such, original of the compromise pursis Exh. 9 was not available and it was, therefore, difficult to prove that the compromise was signed by present plaintiff and defendant Nos. 2 to 6. The court did not verify the compromise. Be that as it may. The fact remains that the said suit came to be withdrawn by present plaintiff and defendant Nos. 2 to 6. It was not withdrawal of suit with permission to file fresh suit. The compromise as per pursis Exh.9 was given as reason for withdrawing suit and so we can safely presume that plaintiffs in said suit accepted contents of purshis Exh.9.There is also evidence by Raghunath, supported by witness Kashinath. Defendant No.1 Raghunath stated that there was partition between plaintiff and defendants in the year 1960 and house No.1579 of Sal Galli was allotted to his share. His witness Kashinath supported this evidence. it is also stated that Defendant No.1 continued to be in possession of property "A" until filing of present suit. 12 11. Considering these probabilities, I concur with the conclusion drawn by the first appellate court that defendant No.1 Raghunath proved that the property "A" was allotted to his share as a result of compromise that was arrived at in previous suit i.e R.C.S. No.93 of 1960. Once we come to a conclusion that such compromise had taken place and Defendant No.1 Raghunath got property "A" to his share in the said compromise, he would not get share in remaining properties i.e. properties "B" to "D" and the first appellate court committed error in calculating shares and holding that the plaintiff was entitled to 8/42th share. Properties "B", "C" and "D" ought to have been divided between the three brothers and two sisters after death of Sonabai and if we are to consider shares, brothers Dagadu, Baburao and Gangaram would each get 42/150th share in properties "B", "C" and "D". Similarly, Rahibai and Rukhminibai each would get 12/150th share. In this case, Rahibai's name was deleted pending suit, but Rahibai was admittedly a married woman 13 of the age of 35 years residing at village Tirthapuri when the suit was filed. As such, her heirs are entitled to inherit her share. It is not claimed anywhere that only the plaintiff and remaining defendants inherited her property. In order to avoid further litigation, I determine share of Rahibai in these appeals with consent of the learned counsel for the parties. 12. It is also submitted by Advocate Shri Kudale that the heirs of Dagadu are running a Kirana shop in property "B" which is plot No.2227 situated in New Mondha and he requested that as far as possible said shop premises be allotted to the share of heirs of Dagadu to which other parties have no objection. 13. In the circumstances, both the appeals are partly allowed. It is held that property "A" (house No.1579) situated at Sale Galli, Beed is the property exclusively belonging to original defendant No.1. In properties "B", "C" and "D" described in the plaint, original plaintiff 14 Baburao, defendant No.2 Dagadu, Defendant No.3 Gangaram each will have 42/150th share and Defendant No.5 Rukhminibai and Defendant No. 6 Rahibai each has 12/150th share. It is further directed that the properties "B", "C" and "D" be partitioned amongst original plaintiff and heirs of original defendant Nos. 2, 3 and 5 and heirs of original defendant No.6 as per above shares and as far as possible the Kirana shop situated in property "B" i.e. plot No.2227 at New Mondha, Beed, may be allotted to the share of legal representative of original defendant No. 2 Dagadu. 14. In the circumstances, both the appeals are accordingly disposed of. Parties to bear their own costs. Interim orders, if any, stand vacated. pnd/SA246.89 (P.R.BORKAR, J.)