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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 115 of 1997
Appellant : Atmaram son of Ganu Nagrale, aged about
53 years, occ: cultivator, resident
Baman Wada, tahsil Rajura, District
ig Chandrapur
versus
Respondent : Baliram son of Ganu Nagrale, aged about
35 years, occ: cultivator, resident of
Baman wada, Tahsil Rajura, District
Chandrapur
Mr M.B. Badiye, Advocate for appellant
Mr M.P. Khajanchi, Advocate for respondent
Coram : A.P. Bhangale, J
Dated : 16th December 2009
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Judgment
1. This is an appeal from judgment and order dated
26.8.1996 passed by the Additional District Judge,
Chandrapur in Regular Civil Appeal No. 165 of 1985 whereby
judgment and order passed in Regular Civil Suit No. 20 of
1981 by the Civil Judge, Junior Division, Rajura on
29.3.1985 was reversed.
2. It is not in dispute that Ganu Nagrale had died
in the year 1974-75 and his wife had predeceased him in
1973-74. Ganu had three sons. Eldest son Hari died in
the year 1973. However, he was separated in 1950-51 and
land admeasuring 12 and half acres was given to his share.
The joint family property viz. old survey number 23 (re-
numbered as survey number 289) and old survey number 25
(re-numbered as survey numbers 209 and 210) was
partitioned in the year 1966 after appellant and
respondent were separated. Old survey number 23 (new
289) was given in the share of plaintiff Atmaram and old
survey no. 205 (new 209, 210) was given in the share of
defendant Baliram. Mutation entries in revenue record
relied upon in the suit proceedings as exhibits 69, 70,
77, 78 and 79 indicated that partition had been effected
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accordingly and since 1966-67 parties were cultivating the
land given in their share separately as Ganu Nagrale
himself had effected partition during his life-time.
3. Plaintiff Atmaram instituted Regular Civil Suit
No. 20 of 1981 in the Court of Civil Judge, Junior
Division, Rajura claiming possession of 3 acres of land
from his brother Baliram (defendant) or in the
alternative, for partition of entire landed property
equally by metes and bounds, claiming half share in the
entire property. According to plaintiff, after the death
of his father Ganu, immoveable property of Ganu was
partitioned between him and defendant. Land survey number
289 came to the share of plaintiff as also further 4
acres of land from survey no. 210 while land survey no.
209 (remaining land) and survey no. 210 was given to the
share of defendant. Plaintiff referred to the dispute as
to immovable property initiated by defendant Baliram under
Section 145 Cr.P.C. which was decided by the Sub-
Divisional Officer, Rajura in favour of plaintiff, but the
revisional court decided it in favour of defendant.
Plaintiff sent registered notice through his counsel to
defendant and demanded 3 acres and 20 gunthas out of land
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survey no. 210, but the defendant denied the claim. Thus,
plaintiff filed suit for possession of land or in the
alternative for equal partition.
4. Defendant resisted suit claim by filing written
statement. He contended that property was partitioned in
the year 1966-67 and entries in revenue record were
effected accordingly. He denied claim of plaintiff that
there was no partition and that there was oral family
arrangement of temporary nature.
5. The trial Court by judgment and decree dated
29.3.1985 directed equal division of land survey nos. 289,
210, 209 of village Bamanwada between the parties. Being
aggrieved by the said judgment and decree, defendant
filed Regular Civil Appeal No. 165 of 85. The 1st
Appellate Court reversed judgment and decree of the trial
Court and thereby dismissed the suit. Hence, this appeal.
6. This appeal was admitted on 30.4.1998 on the
following substantial question of law :-
“Whether the appellate court was justified
in reversing the judgment of the trial
Court ?
7. The question of law framed earlier was re-
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formulated vide order dated 30.9.2009 as under :
“Whether the conclusion of the First
Appellate Court that there was in fact
a partition of the suit property on
account of the long standing entries in
the revenue record was correct or as
suggested by the plaintiff it could
only be treated as family arrangement ?”
8. The answer to this substantial question of law
has to be answered in the manner that it was a partition
of joint family property acted upon since 1966-67 and
evidenced by long-standing mutation entries in revenue
records. In other words, it was not a temporary oral
family arrangement as claimed by the plaintiff.
9. In support of the appeal, learned counsel for
the appellant submitted that partition can be reopened on
the ground that it was not equal division between the two
brothers and therefore, 1st Appellate Court was in error to
direct dismissal of the suit. According to learned
counsel for the appellant, the division of property
between appellant and respondent was merely a family
arrangement as orally set out by their father Ganu and,
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therefore, appeal deserves to be allowed.
10. Learned counsel for the respondent, on the other
hand, submitted that arguments advanced on behalf of
appellant are contrary to settled legal position. He
submitted that plaintiff and defendant had separated since
the year 1959 and parties were separate in residence since
then and agricultural lands were partitioned between them
inasmuch as land survey no. 23 (old) 289 (new) was given
in the share of plaintiff Atmaram and land survey no. 25
(old), 209 and 210 (new) was given in the share of
defendant Baliram and accordingly, entries in the revenue
records were taken which are at exhibits 56, 57, 58, 77
and 78. He submits that entries in revenue records show
that plaintiff and defendant were separately cultivating
the lands partitioned.
11. Learned counsel for respondent has pressed into
service judgment of the Supreme Court in Gangabai and ors
v. Frakirgowda and ors reported in Indian Appeals, Vol.
LVII 61. The Apex Court in the said case found that there
was no allegation that entries in revenue records were
made in collusion and the entries were made after public
enquiry. The Court observed thus –
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“….. These entries were made after public
inquiry and it is impossible to believe that
Somappa would not have heard of them during his
lifetime. There was no cross-examination
suggesting that the entries were collusive, nor
was any evidence led on this point. Bahaguni
was nominated to his office by Somappa as his
deputy, and was a friend of his. Their
Lordships are
ig therefore unable to give any
weight to mere suggestions of fraud and
collusion based on suspicion without any
evidence to support the same. The
plaintiff/respondents alleged throughout that
the partition was unequal and was therefore
improbable, but it seems to their Lordships
that, if the partition was improbable, the
arrangement of separate enjoyment of the
properties unequal in value lasting for a
considerable number of years, and the
acquiescence in the alienations by Baswantrao
and the enjoyment of the property to the same
extent by the widow of Baswantrao, is more
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improbable.”
Learned counsel for respondent, thus, contended
that since partition was acted upon evidenced by long-
standing revenue entries, there was acquiescence on the
part of plaintiff and he is estopped from challenging the
partition. Learned counsel for respondent has further
relied upon Brijraj Singh and anr v. Sheodan Singh and ors
reported in Indian Appeals Vol XL 161. The following
observations in the said judgment are relevant ：
“The claim of the plaintiffs in this action
evidently arose from the suggestion of the
pleaders whom they consulted after quarrels arose
in the family and was based on the fact that the
document which evidences the partition is termed a
will. It is obvious that such a partition could
not have been made by Balwant Singh by will
strictly so called. But, as has been already
pointed out, the document is much more than a will
(if indeed it is in any sense a will at all), for
it describes and witnesses to a family arrangement
contemporaneously made and acted on by all
parties. Every one treated it as such at the
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time. The mutations of names showed this beyond
contro9versy. There is nothing, therefore, in the
fact that the document is called a will which
invalidates the parties, which was undoubtedly
made in fact, and which was acted on by all
parties for ten years without any dispute or
misunderstanding as to their respective rights
under it.”
Learned ig counsel then relied upon Munna Lal
(Dead) by LRs and ors v. Suraj Bhan and ors reported in
(1975) 1 SCC 556. Paragraph 7 of the judgment, relevant
for the present purpose, reads as under :
“As regards the second contention that Ex. Y is not
binding on defendant No. 1, he not having signed it, the
absence of defendant no. 1’s signature on the memorandum
of partition will not invalidate the partition effected by
the Panch. Besides, as held by the High Court, the
conduct of the parties subsequent to the parties shows
that the arrangement effected under the guidance of the
Panch was mutually accepted and acquiesced in. After the
parties, the erstwhile partners began to look after their
respective properties separately. The property allotte4d
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to the share of the plaintiff was in the possession of a
tenant but defendants nos. 1 to 3 did not even ask for a
share in the rent of the property. It is urged on behalf
of the appellant that there is nothing to show that the
tenant paid the rent. But, in the absence of any
allegation that the tenant had not paid the rent, it would
be reasonable to assume that the tenant had not committed
default in payment of the rent. Further, taxes in respect
of the shop allotted to the share of defendants Nos. 1 to
3 were separately paid by them. Thus the second
contention must also fail.”
12. Learned counsel for appellant was unable to
contradict these submissions.
13. The 1st Appellate Court appears to have arrived
at a correct conclusion in view of the facts and
circumstances of the case that even if the family
arrangement is assumed to have taken place in the year
1966, the parties accepted and the same can be termed as
partition. The acquiescence as to partition is evidenced
by entries in revenue records. Considering the fact that
there was partition of family property between the
parties in the year 1966-67, suit for possession or for
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reopening of partition in the alternative, ought to have
been dismissed by the trial Court since the plaintiff and
the defendant were already in possession of their
respective share and there was no need for further
partition. The conclusion drawn by the 1st Appellate Court
that property of the family was partitioned since the year
1966 and it had been acted upon continuously as evidenced
by the entries in revenue records, cannot be interfered on
the ground raised by learned counsel for appellant that
there was merely oral family arrangement of temporary
nature.
14. The view taken by the 1st Appellate Court is
consistent with the principles of law and the ratio laid
down in the aforesaid rulings. There would be no
justification to interfere with the impugned judgment and
order. Second Appeal is, therefore, dismissed with costs.
A.P. BHANGALE, J
hsj
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