Panchappa Kallappa Kalshetti v. Gurulingappa Kalappa Kal

defendant. The Trial Court decreed the Suit for partition and separate possession filed by the original plaintiff. An Appeal was preferred before the District Court by the appellant-3rd defendant which has been dismissed by the 1st Appellate Court.

For the sake of convenience, the parties are hereinafter referred to with reference to their status : 2 : in the Trial Court. According to the plaintiff, one Kallappa Shivalingappa died on 3rd March, 1964. He had five sons and two daughters. The plaintiff is one of the sons of the said Kallappa. The 3rd defedant is also a son of the said Kallappa. As stated earlier, the Suit was for partition.

According to the case made out by the plaintiff, the suit property described in paragraph No.1 of the plaint was a joint family property held by Kallappa and the said property continued to be joint. The 4th defendant filed a written statement supporting the plaintiff. The 2nd defendant filed a written statement accepting the averments made in the plaint. The 2nd defendant contended that he is also entitled to possession of his separate share and he offerred to pay Court fees. The 3rd defendant filed a written statement contesting the Suit. According to the case of the 3rd defendant, there was a joint family by Kallappa and his brother Sawantappa. It was contended by the 2nd defendant that the land bearing Gat Nos.1, 2 and 3 at Village Karajagi was not made a part of the suit property though the said property is a property of a joint family. It was contended that the adopted son of Sawantappa ought to have been impleaded as a party defendant to the Suit. It was specifically : 3 : contended that from the income of the properties bearing Gat Nos.1, 2 and 3 situated at Village Karajagi, the 2nd defendant has acquired a land at Village Mangarool, Taluka Akkalkot. It was submitted that even the said property will have to be subjected to the partition. It was submitted that as the aforesaid properties were not the part of the suit property, the Suit was liable to be dismised. The 1st defendant supported the 3rd defendant.

The Trial Court held that the 1st and 3rd defendants have failed to establish that the aforesaid lands bearing Gat Nos.1, 2 and 3 are the properties of the two joint families. The Appellate Court has confirmed the said finding.

The learned Advocate for the appellant has invited my attention to various findings recorded by the Courts below and especially the finding recorded by the Appellate Court in paragraph No.12 of the Judgment. It is submitted that merely because the name of the 2nd defendant appeared as a tenant in respect of land bearing Survey No.1, 2 and 3 at Village Karajagi, it cannot be said that he was a tenant in his personal capacity. He submitted that though there is a finding recorded in proceedings : 4 : under Section 32(g) of the Bombay Tenancy Agricultural Lands Act, 1948 holding that the 2nd defendant is a deemed purchaser, the said finding will bind only the 2nd defendant and the landlords. It is submitted that the issue whether the said lands at Village Karajagi were self acquired properties of the 2nd defendant or whether the said properties were held by him on behalf of the joint family could have been decided only by the Tribunal constituted under the said Act of 1948 and the Civil Court could not have decided the said issue. It is submitted that however the Trial Court and Appellate Court have purported to decide the said issue. It is submitted that the Courts below ought to have made a reference to the Agricultural Lands Tribunal in view of the decision of learned Single Judge of this Court in the case of Rama Dhondu Date V/s. Krishnaji Bhikaji Kadam & Ors. [2003 (4) Bom. C.R. 365].

The learned Advocate appearing for the legal representatives of the 1st defendant as well as the Advocate for the 2nd defendant have opposed the Appeal. The learned Advocate for the 2nd defendant pointed out that there was a certificate of purchase under Section 32-M of the said Act of 1948 issued in the name of the 2nd defendant. It is submitted that : 5 : the said certificate was the conclusive evidence of purchase by the 2nd defendant insofar as Civil Court was concerned. He submitted that one such a certificate was issued by the authorities under the said Act of 1948, the same authority cannot go into the question whether the property subject matter of the certificate was a joint family property. He placed reliance on a decision of another learned Single Judge of this Court in the case of Savitra Bapu Shinde & Ors. V/s. Rau Rama Shinde & Anr. [2006 (2) Mh.L.J. 243]. He submitted that no interference was called for in this regard.

I have carefully considered the submissions. I have perused the pleadings and notes of evidence as well as the impugned Judgments of the Courts below. Perusal of the written statement of the 3rd defendant shows that there is no specific case made out that lands bearing Gat Nos.1, 2 and 3 at Village Karajagi were held as tenant by the joint family. There is no specific case made out that either the ancester of the parties was a tenant or that the 2nd defendant was holding the said property on behalf of the joint family. There is only a bald assertion that the said property ought to have been included in the suit properties. The perusal of the examination-in-chief : 6 : of the appellant shows that he has not even referred to the land at Village Karajagi. In the cross-examination he admitted that name of his father Kallappa was never entered in the records as the owner of the lands at Village Karajagi. If this is the pleading and this is the evidence led by the appellant, it is very difficult to find fault with the findings recorded by the Courts below and specially the Appellate Court. The issue which was sought to be canvassed in the Second Appeal has not been specifically pleaded in the written statement of the appellant and there is no evidence led by him on this aspect. On the other hand, the 2nd defendant is holding a purchase certificate under Section 32-M of the said Act of 1948. In view of the aforesaid discussion, no substantial question of law arises. There is no merit in the Second Appeal and the same is accordingly dismissed.

In view of dismissal of the Appeal, Civil Application No.3181 of 2000 does not survive and the same is rejected.

At this stage learned Advocate for the appellant prays for continuation of the ad-interim relief. The said request is opposed by the Advocate : 7 : appearing for the respondents. Considering the fact that the ad-interim relief is operating from May, 2000, the same will continue to operate for a period of eight weeks from today. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]

[ABHAY S. OKA, J.]