Narayan Bhau Wagh v. Laxman Shankar Wagh @ Mali

Mr.Vijay Patil i/by Vinod Jadhav for the appellants. Mr.P.J.Thorat i/by Mr.R.A.Thorat for the respondent nos.1 to 4. ---- ---- CORAM : MRS.MRIDULA BHATKAR, J. DATE : 30th AUGUST, 2012. P.C. :- 1 Second Appeal is preferred challenging the judgment and order dated 12.9.2011 passed by the First Appellate Court. The respondent nos.1 to 4 are the original plaintiffs who have filed the suit for partition which is decreed by the trial Court. The present appellants are the original defendant nos.2, 3 & 6, however defendant nos.2 & 6 did not challenge judgment and order of the trial Court in first appeal but it was solely filed by one of the present appellant i.e original defendant no.3. 2 The original plaintiffs and the defendants are the cousin brothers. They inherited property from one Chimnappa Wagh who 2 SA778.11 died in 1946. Chimnappa Wagh had two sons. One is Shankar and other is Bhau. Shankar is missing and his whereabouts are not known. The successors of Shankar filed the suit for partition. It is an admitted fact that both the families are having separate mess and cultivating land separately. However, there was neither written nor oral partition since 1946. The entire properties are divided in 3 sets. There are some properties which are admittedly jointly owned. The 2nd set of properties is of a self acquired property and the 3 rd set of properties is of landed property for which Chimnappa was a tenant. There is no dispute in respect of the property i.e 1 to 7 falling in set no.1. However, in respect of self acquired properties, it is contended by the learned Advocate for the appellants that appellate court has not considered the evidence of the income and the source of purchase of this self acquired property. The another point in respect of error in appreciation of evidence, the learned Advocate pointed out that the tenanted property survey no.144 was sold to one Mr.Kanetkar and thereafter it was purchased by the appellants so also out of other tenanted properties, one was surrendered and tenancy of the 3rd property was terminated. 3 I have gone through the judgments of the appellate court and of the trial court. The learned Advocate for the appellants went through the relevant paragraphs of the judgments and also 3 SA778.11 compilation of the documents and the evidence tendered by both the parties. The grievance was made that the trial court did not admit evidence on the point of his income though the defendants were working and having sufficient income to buy these properties. Thus the courts below have committed gross error of law in not properly appreciating evidence on purchase of self acquired properties. 4 The appellate court and the trial court, both have discussed this aspect. Defendant did not contend about the purchasing of these properties falling in 2nd and 3rd set out of his own income and salary was the source of his income. It was rightly held that if properties would have been purchased out of the salaried income, the defendant would not have been hesitated to mention the source of income of buying those properties in his written statement. 5 A question before the trial court was whether joint family had sufficient and adequate nucleus to buy newly purchased properties ? In the evidence, it is shown that there was adequate income from the agricultural properties. The appellate court has considered that the financial position of the family was sound and the income out of the joint family properties was sufficient. Once adequacy and existance of nucleus is established then onus that the properties were purchased are self acquired shifted on the 4 SA778.11 defendants. Defendants did not discharge the burden. The tenanted properties were admittedly inherited from Chinappa. One property was sold to Mr.Kanetkar and again purchased by the defendant but burden casts on the defendant to establish that it was purchased from his self acquired property. Learned Counsel submitted that civil court has no jurisdiction to decide the issue of tenancy as its jurisdiction is barred under the Bombay Tenancy and Agricultural Lands Act. There is no substance in these submissions. Neither the trial Court nor the appellate court have decided the issue of tenancy but have considered the possibility of financial capacity to re- purchase the right of tenancy. On assessing evidence of existence and adequacy of the nucleus and in the absence of any evidence of the defendant, the appellate court rightly held that tenancy right is not a self acquired property. 5 On the point of burden of proof and on appreciation of evidence of the property, joint or self acquired, learned Advocate for the appellants relied on following 3 judgments. (1) P.S.Sairam & Anr. Vs. P.S.Rama Rao Pisey & Ors. (AIR 2004 SC 1619) (2) D.s.Lakshmaiah Vs. L.Balasubramanyam (AIR 2003 SC 3800) (3) Makhan singh Vs. Kulwant Singh (AIR 2007 SC 1808) These rulings are of no use to the appellant in the light of his case and the evidence. 5 SA778.11 6 Considering the evidence tendered by the defendants and the original plaintiffs, I find that neither the appellate court nor the trial court have committed any error in appreciating the evidence. No perversity is found. No substantial question of law is made out. Appeal is dismissed. 7 In view of dismissal of Second Appeal, Civil Application is also dismissed. 8 Learned Advocate Mr.Patil for the appellants submits that order be stayed for a period of 8 weeks. The learned Advocate for the respondent nos.1 to 4 submits that a decree is already executed on 13.7.2012. The learned Advocate for the appellants relies on the order dated 18.7.2012 passed by this court in which this court has directed in paragraph-5, Tahsildar, Koregaon not to take any action pursuant to notice dated 28.6.2012 in Darkhast No.38 of 2001. In view of the statement made by the learned Advocate for the defendant nos.1 to 4 that execution is already taken place on

13.7.2012, no stay is granted. (JUDGE) 6 SA778.11