CIVIL APPELLATE JURISDICTION v. Parshuram Sakharam Parab, Since Deceased

Judgment

1. Parshuram Sakharam Parab, Since Deceased through his Legal Representatives: (a) Mathurabai Parshuram Parab, Aged about 70 years, Residing At & Post Kalse, Taluka- Malvan, District – Sindhudurg. ] ] ] ] ] ] ] ] (b) Sakharam Parshuram Parab. ] ] Aged about 46 years, Residing At Abhyudayanagar, MP19/1321] Third Floor, Kala Chouki, M. P. ] ] Bombay. (c) Subhash Parshuram Parab. ] ] Aged about 34 years, Residing C/o Sakharam Parshuram Parab ] Abhyudaya Nagar, M.P.19/1321,] 3rd Floor, Kala Chouki, M.P., ] ] Bombay. (d) Pratibha Bhaskar Parab. Aged about 38 years, Residing At 35/771, Adarsh Nagar, Bombay – 18.

2. Yamunabai & Kashibai Tate Parab, Aged about 73 years, Residing at Nandrukh, Tal. Malvan, Sindhudurg. ] ] ] ] ] ] ] ] ____________ …..Appellants. S. A. stands dismissed As against Res. Nos. (1(b) and 1(c), as per Registrar's order dated 15.02.2012, passed herein. …..Respondents. S. S. MORMARE 2 of 10 3

214.sa.530.90

Mr. D. S. Sawant for the Appellants. CORAM: K. K. TATED, J. DATED : JUNE 13, 2012. ORAL JUDGMENT: Heard learned counsel appearing on behalf of the Appellants. None appeared for the Respondents though duly served.

2. This Second Appeal is preferred by the original Defendants against the Judgment and Decree dated 6th September 1990 passed by the Additional District Judge, Sindhudurg in Civil Appeal No. 89 of 1981 partly modifying the Judgment and Decree dated 19th September, 1981 passed by the Civil Judge, Junior Division, Malvan in Regular Civil Suit No. 54 of 1979.

3. For the sake of convenience the nomenclature of the parties as mentioned in the Trial Court is referred as the Appellant is the original Defendant No.1, the Respondents No.1(a) to 1(d) are the original Plaintiffs and Respondent No.2 original Defendant No.2.

4. A few facts of the matter are as under: S. S. MORMARE 3 of 10 4

214.sa.530.90 The Plaintiff filed Regular Civil Suit No. 54 of 1979 for partition of the properties as described in the paragraph-1 of the plaint. It is the case of the Plaintiff that all these properties were ancestral properties and, therefore, he is entitled to half share in the property described in paragraph-1a and 1b and joint possession in property described in paragraph-1c. The said suit was partly decreed by the Trial Court by Judgment and Decree dated 19th September, 1981. The Trial Court rejected the Plaintiff's claim in respect of the property described at Schedule B of the plaint. Being aggrieved by the said Judgment and Decree, the Plaintiff preferred Civil appeal No. 89 of 1981 in the Court of Additional District Judge, Sindhudurg at Sawantwadi. The Appellate Court held that the Defendant has admitted that his father was tenant of the property described at Schedule-B and, therefore, it could be presumed that the tenancy was continued in respect of the property described in Schedule B and, therefore, the Plaintiff is entitled to half share in that property also. On the basis of these findings, the Additional District Judge, Sindhudurg by Judgment and Decree dated 6th September, 1990 allowed the Appeal preferred by the Plaintiff holding that the Plaintiff is entitled to partition and separate possession to the extent of his S. S. MORMARE 4 of 10 5

214.sa.530.90 half share in property described in Schedule B. Hence, the Present Second Appeal:

5. The learned counsel appearing on behalf of the Appellant/original Defendant No. 1 submits that the Appellate Court erred in coming to the conclusion that the property mentioned in Schedule-B, i.e., Survey Nos. 107 and 108 was tenanted property in the hands of their father and, therefore, the Plaintiff is entitled to half share in those properties also. He further submits that the Appellate Court failed to appreciate that notice under Section 32G and the Certificate issued under Section 32M of the Tenancy Act were issued in the name of the Defendant No. 1 only and, therefore, the Plaintiff is not entitled to any share in that rented property. He further submits that the Appellate Court failed to appreciate that the entire consideration amount for purchase of the tenanted property in the year 1967 was paid by the Defendant No. 1 from his self earning and, therefore, the Plaintiff is not entitled to any share in that property. On the basis of these submissions, the learned counsel appearing on behalf of the Defendant No. 1 submits that the impugned Judgment and Decree passed by the Appellate Court in Civil Appeal No. 89 of S. S. MORMARE 5 of 10 6

214.sa.530.90 1981 is liable to be set aside.

6. At the time of admission of the Second Appeal, following two questions of law were framed by this Court.

1. That the substantial question of law is that in respect of the properties mentioned at Schedule “B”, the tenancy proceedings were held in the name of the Appellant Namdev and ultimately same were sold in the name of Namdeo and necessary 32M Certificates have been issued accordingly.

2. That it ought to have been seen that if the tenancy in respect of the properties mentioned at Schedule “B” of the Plaint, commenced during the life time of the father of the Plaintiff and Defendant, then after the demise of the father, it ought to have been recorded in the name of Plaintiff being eldest member of the family. In the present case, in all revenue records, name of the present Appellant has been recorded as protected tenant in respect of the S. S. MORMARE 6 of 10 7

214.sa.530.90 properties mentioned at Schedule “B” and the same have been sold under the provisions of Tenancy Act.

7. I have heard the learned counsel appearing on behalf of the Appellant Original Defendant No.1 at length. I have gone through the records and proceedings of both the Courts below. In respect of the first question of law, i.e., “that the substantial question of law is that in respect of the properties mentioned at Schedule “B”, the tenancy proceedings were held in the name of the Appellant Namdev and ultimately same were sold in the name of Namdeo and necessary 32M Certificates have been issued accordingly”, it is to be noted that Namdeo in his cross examination stated that he handed over a sum of Rs.996.10 to the Plaintiff for depositing payment of purchase price in the Treasury of Government. He failed to satisfy that he used the amount which was earned by him independently without taking assistance of HUF property. It is to be noted that the Defendant No. 1 in his cross examination in paragraph-7, specifically, stated that he got Rs.1,050/- by selling the sugarcane from the land of HUF because till 1957, all the properties were in possession of Namdeo- S. S. MORMARE 7 of 10 8

214.sa.530.90 Defendant No. 1 who used to look after the same as the Plaintiff stayed at Mumbai. Even Namdeo in his evidence, specifically, stated that though the Plaintiff is staying at Mumbai, his wife stayed with him at native place in HUF family. It is no where stated in his evidence that he purchased the tenanted land by his self acquired money without assistance of HUF property. In any case, Namdeo admitted in his evidence that his father was tenant of some of the properties prior to 1938. His father expired in

1938. Though the Certificate under Section 32M was issued in the name of Namdeo in Tenancy Proceedings, the same was in respect of the HUF property. Therefore, the Appellate Court, rightly, held that the property described in Schedule “B” i.e., Survey Nos. 107 and 108 were HUF properties and the Plaintiff is entitled to half share.

8. With regard to another question of law i.e., “that it ought to have been seen that if the tenancy in respect of the properties mentioned at Schedule “B” of the Plaint, commenced during the life time of the father of the Plaintiff and Defendant, then after the demise of the father, it ought to have been recorded in the name of Plaintiff being eldest member of the family. In the S. S. MORMARE 8 of 10 9

214.sa.530.90 present case, in all revenue records, name of the present Appellant has been recorded as protected tenant in respect of the properties mentioned at Schedule “B” and the same have been sold under the provisions of Tenancy Act” cannot come to the help of the Defendant No. 1. The Defendant No.1 himself admitted in his evidence that he sold the sugarcane and handed over money to the Plaintiff for depositing in the Treasury towards purchase price of the tenanted property. Though the property was purchased in the name of the Defendant No. 1, the same was purchased by using corpus of HUF. Therefore, the Defendant No. 1 cannot deny the share of the Plaintiff in those properties.

9. In any case, the present Second Appeal is dismissed for non-prosecution against the Respondent Nos.1(b) and 1(c) by order dated 15th February, 2012 passed by the Registrar. The Respondent Nos. 1(b) and 1(c) are the legal heirs of the original Plaintiff. In the present litigation, the dispute is about partition and once the share of parties are determined by the Court and if the Appeal is dismissed against some of the parties, then the entire Second Appeal must fail. Therefore, on that ground also, nothing survives in the Second Appeal. The Second Appeal is dismissed S. S. MORMARE 9 of 10 10

214.sa.530.90 with no order as to costs.

10. In view of dismissal of the Second Appeal, nothing survives in the Civil Application No. 4791 of 1990 and the same is dismissed as infructuous. (K. K. TATED, J.) S. S. MORMARE 10 of 10