( 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.131 OF 1983 SECOND APPEAL NO.131 OF 1983 SECOND APPEAL NO.131 OF 1983 1. Gulab Abbas Patwekar Since deceased by heirs; 1-a. Shamsuddin Gulab Patwekar 1-b. Mansur Gulab Patwekar 1-c. Noor Banu Nisar (daughter) R/o. C.T.S.NO.536, Islampur, 2. Yusuf Abbas Patwekar Since deceased by heirs; 2-a. Sikandar Yusuf Patwekar 2-b. Smt.Hanifaba Yusuf Patwekar R/o CTS No.536, Islampur. 3. Musa Abbas Patwekar Since deceased by his heirs; 3-a. Afzal Mussa Patwekar 3-b. Rafique Mussa Patwekar 3-c. Aishabee Mussa Patwekar 3-d. Surayya w/o. Nazir Ahmed R/o Dhapade colony near, water tank, Uchgaon, Kolhapur 3-e. Nadira w/o. Noor Mohd.Momin R/o Near Masjid, Vai, Dist.Satara 3-f. Rakshana w/o. Haroon Momin R/o Qaziwada, Karad, Dist.Satara 4. Hussain Abbas Patwekar since deceased by his heirs; 4-a. Amaua Hussain Patwekar 4-b. Munir H. Patwekar 4-c. Shafique H. Patwekar 4-d. Smt.Sogarabee w/o. Hussain Patwekar R/o.Momon Mohaa, Islampur 4-e. Smt.Nargis Jubar Patwekar R/o. Umraj, Dist.Satara 4-f. Smt.Almas Nazir Mulla R/o.Momin Pura, Islampur. 4-g. Smt.Shahnaz Mohd. Momon, R/o. Bhoich, Dist.Satara. 4-h. Miss.Yasmin Hussain Patwekar R/o. Mohsin Mohalla, Islampur 5. Hashamatbi wife of Ayub Patwekar 6. Rahimatbi wife of Noormohmed Mulla ..Appellants (Orig.defendants) ( 2 ) Versus 1. Ahmed Mohamadhanif Patwekar 2. Kadar Mohamadhanif Patwekar 3. Jaharabi w/o Abdulrazak Patwekar since deceased her heirs; 3-a. Zohar Ab. Razaque 3-b. Majeed Ab.Razaque 3-c. Hanifa Abdul Razaque 3-d. Rajiya Abdul Razaque 3-e. Shamshadbee Abdul Razaque 3-f. Dilshadbee Abdul Razaque All R/o. Momin Mohalla, Islampur 4. Noorbi w/o Musa Patwekar 5. Lalbi w/o Ajmouddin Momin 6. Abdulrazak Karim Patwekar 7. Abdulsamad Karim Patwekar 8. Ashabi w/o Nasaruddin Momin 9. Maimun Abdulgafar Momin 10. Habja w/o Noormohamad Patel ..Respondents (Orig.plaintiffs) ...... Mr.A.R.Shaikh for the appellants None for respondents ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 16th April, 2009 DATED : 16th April, 2009 DATED : 16th April, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Before I proceed to dispose of this appeal, it is required to be mentioned that the appeal has abated as per Court’s order dated 24th January, 2008 as against respondent No.5. Appeal has abated as against respondent No.3A. Appeal has dismissed for want of prosecution as against respondent Nos.3b, 3d and 3f. 2. In all twelve persons instituted the suit in ( 3 ) the Court of Civil Judge, Junior Division, Islampur being Regular C.S. No.202 of 1976 for partition in respect of property bearing City Survey No.536 situate at Islampur against the appellants. The learned trial Judge after conducting the trial dismissed the suit by judgment and decree dated 6th August, 1980. The original plaintiffs instituted Appeal No.262 of 1980 in the District Court at Sangli against the said judgment and decree dated 6th August, 1980 and the learned Extra Assistant Judge, Sangli vide his judgment and decree dated 17th January, 1983 allowed the appeal and set aside the order of dismissal of the suit and passed an order decreeing the suit and observed that the appellants had 144 1/3 / 192 share in the suit property. Other formal orders as regards partition came to be passed. This judgment and decree dated 17th January, 1983 is challenged in this Second Appeal. Few facts necessary for the disposal of this appeal are as under:- 3. One Mr.Suleman purchased properties bearing City Survey No.536 and 557 situate at Islampur. Said Suleman had two sons Abbas and Hanif. He had two daughters and a wife. According to the appellants during the lifetime of Suleman, City Survey No.557 came to be allowed to Hanif and City Survey No.536 came to be allowed to Abbas. The present appellants ( 4 ) are the heirs of the Abbas, whereas the respondents are heirs of Hanif. Said Hanif during the lifetime of Suleman in the year 1928 executed a sale deed in favour of one Mhabari in regard to Survey No.557 vide sale deed at Exhibit 57. 4. After this sale-deed in the year 1928 Suleman expired in 1932, Abbas expired in the year 1935 and Hanif expired in 1967. According to the appellant present appellants in their capacity as heirs of Abbas continued to enjoy property being City Survey No.536 uninterruptedly and the present respondents had no concern with the said property. According to the appellants in the year 1976 the respondents woke up and instituted the suit for partition. The said suit came to be disposed of in the manner aforesaid and that is how the present appeal is filed. 5. The learned advocate Mr. Shaikh arguing on behalf of the appellants contended that there was no bar for Suleman to distribute his property between two sons during his lifetime so as to see that the property is settled during his lifetime. One may not have any objection to this proposition, however, it is required to be mentioned that such a disposal during the lifetime of Suleman could be in accordance with well established principles of transfer of property ( 5 ) namely such disposal during the lifetime of Suleman could have been by a sale-deed, gift deed or deed of exchange. No such document is produced before the Court at any stage. In fact, in the order passed by the learned Extra Assistant Judge, there is a reference that no document in the nature of a declaration and other requirements in accordance with provisions of Muslim law are produced. In view of this, the stand taken by the appellants that property viz. suit property came to be allotted to Abbas as well as property bearing City Survey No.557 came to be allotted to Hanif as owners cannot be accepted. May be that two branches started enjoying the properties. 6. It is on record that Hanif disposed of Survey No.557 in favour of the Mhabari while his father Suleman was alive. Why this transaction was not objected to by Suleman or Abbas, is not on record. In any case, that disposal in favour of Mhabari need not be gone into at this stage because the said property was not transferred in accordance with provisions of Transfer of Properties Act in favour of Hanif. Hence, Suleman held City Survey No.536 i.e. suit property as owner at the time of his death. 7. It is true that Hanif till 1967 and heirs thereafter till 1976 did not think of applying for ( 6 ) partition and applied for partition of the Court only in the year 1976 Learned advocate Mr.Shaikh submitted that all along the heirs of Abbas enjoyed the suit property and therefore acquired ownership in respect of the property. Such a stand cannot be accepted because the appellant No.2 at the stage of recording of evidence in the trial Court had given up the stand of adverse possession which was otherwise open to them. The observation to this effect is found in paragraph 18 of the judgment of the appellate Court. If this be so, the appellants could not claim ownership over the suit property by adverse possession. 8. It seems that the respondents as heirs of Hanif did not insist the enjoyment of suit property but that by itself will not mean that their right in regard to the suit property was taken away because no evidence is placed before the court by the appellants to show the heirs of Abbas had specifically told respondents that they have no concern that the suit property and they are being excluded forever. 9. It was argued by learned advocate Mr. Shaikh that in the year 1942 i.e. after the death of Sulman as well as Abbas and while the property was being enjoyed by heirs of Abbas, city survey scheme came to ( 7 ) be implemented to Islampur and name of Yusuf i.e. present appellant No.2 came to be recorded in the city survey record. According to Mr. Shaikh this would clearly go to show that the heirs of Abbas became the owners of the suit property. This argument of Mr. Shaikh cannot be accepted keeping in view the nature of the entry in the city survey record. The name of Yusuf Abbas Patwekar i.e. the present appellant No.2 was incorporated as ’manager of joint family heirs and grandson of the purchaser Suleman Patwekar held revenue free by custom’. If this is the entry available in the city survey record in the year 1942, it will not lie in the mouth of the appellants to say that they became owners of the suit property. The very fact that the entry of Yusuf appellant No.2 was in his capacity as a manager of the joint family and heirs and grand son of purchaser Suleman shows that the said entry was made to a limited extent and that the appellants were not termed as owner of the suit property. In any case, entry in the city survey record would not confer ownership on the appellants because ownership can be conferred upon a particular person by proper deed as stated earlier. No doubt, after the death of Suleman, Abbas and after his death his heirs could succeed to the suit property CTS No.536. However, nothing is placed before the Court to show that the heirs of Hanif were excluded in ( 8 ) inheriting the suit property. If this is the position, the right of the present respondents to institute a suit for partition did not extinguish and institution of a suit may be in the year 1976 cannot be faulted upon. 10. The learned Extra Assistant Judge, Sangli has rightly observed that there is no question of joint family property in the Muslim law. He has arrived at the conclusion about share of respondents in the suit property as has been mentioned in the impugned judgment and no fault therein can be found as no specific arguments were advanced across the bar in the course of hearing of the appeal that the quantum of share mentioned in the final order is incorrect. 11. In the circumstances mentioned aforesaid, no substantial question of law is involved in this appeal. The judgment delivered by learned Extra Assistant Judge, Sangli dated 17th January, 1983 cannot be faulted and no interference is required therein. Hence, this appeal will have to be dismissed. In the peculiar facts and circumstances, appellants need not be saddled with costs of this appeal. Hence, the order:- ORDER ORDER ORDER ( 9 ) . Appeal is dismissed with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)