Sitaram Pandurang Chavan v. Shivaji Aba Chavan

The Appellant -original plaintiff in Regular Civil Suit NO.21 of 1979 has preferred this Appeal against the judgment and order passed by the Court of the Joint District Judge, Sindhudurg-Oros in Regular Civil Appeal NO.163 of 1984 whereby decree for partition and separate possession passed in favour of the plaintiff by the Joint Civil Judge,J.D., Malwan was set aside and the suit was dismissed.

For the sake of convenience hereafter the parties shall be referred to as the plaintiff and defendants.

In order to appreciate the facts of the case it would be worthwhile to set out genealogy which would indicate the relations between the parties. Aba Sonu _______________________!_______________________ ! ! ! ! Gopal Sonu Shivram (died 1950) Narayan ! ! (widow) Laxmi (died in 1947) ! ! (died in 1950) (widow) ! ! (daughter) Yashoda ! ! Satyabhama (died in 1947) ! died in 1978 ! ! (died in 1978) ! Aba ! (Widow)-Saraswati (Deft3) ! ! Pandurang ! ! ____ !__________________________________ ! ! ! ! ! ! ! Shivaji Vasudeo Leela Nalini Hemlata ! (Deft1) (Deft2) (Deft4) (Deft5) (Deft6) ! ___ !___________________ 3 ! ! ! Sitaram Anant Rajaram (Plff.) (Deft.7) (Deft.8)

Plaintiff Sitaram Pandurang Chavan filed Regular Civil Suit No.21 of 1979 stating therein that the suit properties described in para 1A of the plaint are the joint family properties of the plaintiff and defendants. According to the plaintiff, the suit properties were initially owned by their common ancestor Aba Sonu Chavan i.e. great grand father of the plaintiff. After the death of Aba Sonu Chavan, his four sons viz. Gopal, Sonu, Shivram and Narayan inherited the property. All of them were cultivating the suit land jointly and partition had never taken place between them. Thus it is plaintiff’s case that he is having 8 anna share in the suit properties described at Sr.No.1 to 4 while in properties at Sr.Nos.5, 6 and 7 he is having 10 anna shares. The property mentioned at Sr. No.29 which is house property was partitioned previously and each sharer is having possession of his respective share in the said property. It is plaintiff’s case that Narayan, brother of his grand father Gopal died prior to 1947 and his wife Yeshoda also died in the year 1947. After her death her property devolved to the share of the father of the plaintiff and defendants. Similarly Shivram, brother of plaintiff’s grand father died prior to 1950 and his wife Laxmi died in the year 1950. Her property was devolved to her daughter Satyabhama. However, prior 4 to her death in 1978, Satyabhama sold her 1/4th share in the suit property mentioned at Sr.Nos.5, 6 and 7 to plaintiff by registered sale deed dated 22-1-1963. It is plaintiff’s case that as the suit properties were joint it became difficult to carry out improvement in the suit property. Besides that, there often used to be quarrels on account of the land. The plaintiff therefore filed the present suit for partition and separate possession of his share.

Though plaintiff included properties at Sr.Nos. 8 to 28 as joint family properties he averred that there are many other sharers in the said property and most of the properties are in possession of tenants and as such he did not claim any partition in the said property. It is also alleged that the plaintiff and his mother Satyabhama had previously filed Regular Civil Suit NO.72 to 1959 for partition and separate possession of joint family properties. However, with the permission of the Court plaintiff withdrew the said suit on 25-3-1967. Thus, according to him plaintiff’s action of filing such suit will not operate as a bar to the present suit.

The defendant no.1 filed his written statement at Exh.30 and opposed the suit claim. He admitted the relationship between plaintiff and defendants. However, contended that there is no joint family of the plaintiff and dependants and oral partition has already taken 5 place long back in between the plaintiff and defendants’ ancestors. Thus, according to the defendants as partition had already taken place plaintiff’s suit for partition was not tenable. The defendant also denied all other allegations of the plaintiff and prayed for dismissal of the suit.

The defendant no.2 filed purshis Exh.31 and adopted the written statement filed by the defendant no.1.

The defendant nos. 3 to 8 remained absent though duly served and the suit proceeded exparte against them.

On the pleadings of the parties, the learned trial Judge framed issues at Exh.32. In order to prove the suit claim plaintiff examined himself at Exh.56 and also produced certain 7x12 extracts, revenue assessment receipts and copy of sale deed executed by Satyabhama.

As against this, defendant no.2 examined himself at Exh.59. He also produced khata extract and assessment receipts along with Exh.61.

After considering the evidence of both the parties, the learned trial Judge came to the conclusion that defendants have failed to prove that the partition had already taken place between plaintiff and defendants’ ancestors. He therefore held that plaintiff is entitled 6 for partition and separate possession and therefore decreed the suit in plaintiff’s favour.

Being aggrieved by the above mentioned order. the original defendant no.1 filed Regular Civil Appeal No.163 of 1984. After hearing the arguments of both the learned Advocates, the learned Joint District Judge, Sindhudurg Oros came to the conclusion that the decree passed by the learned trial Trial Judge was not legal and correct and the partition had in fact taken place long back between the plaintiff’s grand father and his brothers. Naturally, he allowed the appeal and dismissed the plaintiff’s suit.

The above mentioned order passed by the first appellate court is challenged in the present second appeal. From the perusal of the record it appears that while admitting the appeal this Court has formulated following substantial question of law :- "Whether the lower appellate court erred in holding that the partition was already effected between the parties without there being any evidence to that effect?"

In this appeal before me, Shri Salunke, learned advocate for the plaintiff has urged two points, Firstly, he submitted that the learned first appellate 7 court has not properly appreciated the evidence on record. Secondly, he canvassed before me that the learned trial Judge has given undue importance to the entries in the revenue record. According to him, the entries in the revenue record showing separate possession cannot be regarded as proof of partition and title to the land. He, therefore, submitted that in the absence of any documentary evidence adduced by the defendants regarding partition the first appellate court wrongly held that the partition had already taken place between the plaintiff and defendants’ ancestors and the suit is liable to be dismissed. He, therefore, submitted that the appeal be allowed and the decree passed by the trial Court be restored.

As against this Shri Rege, learned Advocate for the defendants supported the judgment and order passed by the first appellate court. He submitted that though there is no document of partition the other evidence, circumstances and the conduct of the parties clearly go to show that the partition had already taken place between the parties long back. He, therefore, submitted that the appeal be dismissed.

The relation between the parties is not in dispute. It is also an admitted fact that the properties mentioned in Schedule A i.e. properties 1 to 7 were initially owned by Aba. It is nobody’s case that Aba 8 had divided his property amongst his four sons. Thus the suit property was initially joint family property of plaintiff’s grand father and his brothers. However, it is the contention of the defendant nos.1 and 2 that partition had taken place between the plaintiff’s grand father and his brothers. Admittedly, there is no document of partition. However, it is needless to say that in the absence of any specific document regarding partition it cannot be said that there was no partition at all. After all partition is a severance of joint status. All that is necessary therefore to constitute a partition, is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severality. It is well settled that where there is no any document of partition in such a case, when the question arises as to whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of the fact to be decided with due regard to the cumulative effect of all the facts and circumstances, and primarily burden of showing that there has been a partition is on the person setting it up.

Bearing in mind the above position of law, let us scan the evidence on record and find out whether the learned first appellate court was justified in holding that the suit property was already partitioned and as 9 such the plaintiff was not entitled to file the suit for partition. Firstly, it must be noted that the plaintiff has stated in his deposition that they have a common vahiwat in the suit lands and no partition was effected between their branches. However, in the cross examination he has stated : "I cannot tell whether my grand father and his brothers were cultivating the suit land jointly or separately". So, this admission of the plaintiff itself shows that the plaintiff is not even sure as to whether the status of their family has remained joint and whether the joint family has joint family property. As against this, the defendant nos.1 and 2 have come out with a specific case that partition has taken place between 4 sons of their common ancestors long back and accordingly each branch was having separate vahiwat of the property allotted to their respective share.