{"id":115124,"date":"2003-02-19T00:00:00","date_gmt":"2003-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandramohan-ramchandra-patil-vs-bapu-koyappa-patil-dead-thr-on-19-february-2003"},"modified":"2017-09-14T12:06:42","modified_gmt":"2017-09-14T06:36:42","slug":"chandramohan-ramchandra-patil-vs-bapu-koyappa-patil-dead-thr-on-19-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandramohan-ramchandra-patil-vs-bapu-koyappa-patil-dead-thr-on-19-february-2003","title":{"rendered":"Chandramohan Ramchandra Patil & … vs Bapu Koyappa Patil (Dead) Thr. … on 19 February, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chandramohan Ramchandra Patil & … vs Bapu Koyappa Patil (Dead) Thr. … on 19 February, 2003<\/div>\n
Author: Dharmadhikari<\/div>\n
Bench: Brijesh Kumar, D. M. Dharmadhikari<\/div>\n
           CASE NO.:\nAppeal (civil)  9393 of 1995\n\nPETITIONER:\nChandramohan Ramchandra Patil & Ors.\n\nRESPONDENT:\nBapu Koyappa Patil (dead) Thr. LRs. & Ors.\n\nDATE OF JUDGMENT: 19\/02\/2003\n\nBENCH:\nBRIJESH KUMAR & D. M. DHARMADHIKARI\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dharmadhikari J.\n<\/p>\n
\tThe present appellants were defendants before the Trial Court
\nin suit for partition instituted in the Court of  Civil Judge, Jr. Division,
\nKagal, District\t Kolhapur in the State of  Maharashtra.\t The suit filed
\nby the deceased plaintiff [now represented by his legal
\nrepresentatives impleaded as respondents herein] for partition of the
\nerstwhile Watan or Inam lands of his family was dismissed by the
\ntrial court.  The First Appellate Court by judgment of reversal decreed
\nthe suit of the plaintiff and it has been confirmed by the High Court in
\nsecond appeal recognising the plaintiff’s right of partition of the suit
\nlands to the extent of 1\/3 share. The preliminary decree has been
\nframed for passing a final decree and grant of separate possession.\n<\/p>\n
\tLearned counsel appearing for the defendants, assails the
\ndecree of partition granted to the plaintiff\/respondent but does not
\ndispute the legal position settled by the two Judges Bench decision of
\nthis Court in the case of Kalgonda Babgonda Patil vs. Balgonda
\nKalgonda Patil<\/a>\tetc. etc. [AIR 1989 SC 1042]  and three Judges
\nBench decision of this Court  in the case of  Annasaheb Bapusaheb
\nPatil vs. Balwant [1995 (2) SCC 543].  In the aforesaid two
\nJudges and three Judges Bench decisions of this Court,\tit has been
\nheld that erstwhile Inam or Watan lands held by the senior most
\nmember of the family through lineal descendant on the rule of
\nprimogeniture, on abolition of Inamdari or  Watandari under the
\nprovisions of Bombay Pargana and Kulkarni Watans  Abolition Act (60
\nof 1950) and thereafter by the Bombay Inferior Village Watans
\nAbolition Act, 1958, after re-grant of those categories of land to the
\nWatandar or Inamdar, become partible properties between the
\nmembers of the family of the Watandar or Inamdar.  See the
\nfollowing statement of law in the decision of three Judges Bench in
\nthe case of  Annasaheb Bapusaheb Patil (Supra) :-\n<\/p>\n
“The lineal primogeniture  regulating succession to the
\nestate cannot prevail under Section 4 of 1955 Act, as being
\nnothing more than incidents of the watan which stand
\nabrogated by Section 4 of that Act. It was, therefore, held
\nthat watan families  if had a hereditary interest in the
\nwatan property, such inheritance enures to the benefit of
\nall the members of the family as the property belongs to
\nthe family and all persons belonging to the watan family
\nwho had a hereditary interest in such watan property were
\nentitled to be called “watandars of the same watan” within
\nthe Watan Act. The members of the joint Hindu family
\nmust be regarded as holders of the watan land along with
\nthe watandar for the time being and therefore, the re-
\ngrant of the lands to the watandar under Section 4 of that
\nAct must enure to the benefit of the entire joint Hindu
\nfamily. This Court upheld the full Bench judgment of the
\nBombay High Court reported in Laxmibai Sadashiv Date v.
\nGanesh Shankar Date and another judgment in Dhondi
\nVithoba Koli v. Mahadeo Dagdu Koli. The Division Bench
\njudgment  in Babgonda case was overruled”.\n<\/p>\n
\tThe first ground urged by the learned counsel for the
\ndefendants is that the original deceased plaintiff  Bapu Koyappa Patil
\nfailed to prove his relationship with the main ancestor\t Suryaji, who
\nwas the first Watandar, hence his claim for partition to the extent of
\n1\/3 share was rightly negatived by the trial court.\n<\/p>\n
\tThe question of relationship and the dispute on the correctness
\nof the pedigrees produced by the parties in the case for proof of
\nrelationship of the parties with the original ancestor Suryaji, is
\nessentially a question of fact. The trial court in non-suiting the
\nplaintiff has recorded a finding amongst others that in the pedigree
\nEx.71 the branch of sons of Suryaji, to which the plaintiff claims to be
\nbelonging, is not shown and that was produced in proceedings in the
\nyear 1945. The First Appellate Court  went thoroughly into the
\ndispute of correctness of the rival pedigrees  filed by the parties and
\nchose to rely on the oldest pedigree Ex.69 which explains relationship
\nof the members of the family of Suryaji on 05.1.1874.  In that
\npedigree all the branches of sons of Suryaji including the plaintiff’s
\nbranch was shown. There were, thus, three pedigrees of different
\nperiods Ex. 67, 69 and 71 before the court and court came to the
\nconclusion that Ex.71 which is\tthe pedigree produced by the plaintiff
\nhas to be accepted as genuine as it gets support from the earliest
\npedigree of the years 1870 and 1874.\n<\/p>\n
\t The above discussion of evidence have been duly taken note of
\nby the High Court in second appeal and the decision of the appellate
\ncourt on that issue has been upheld.  For the aforesaid reasons, it is
\nnot open to the defendants  to raise ground on the correctness of the
\nfinding of fact on the issue of relationship.  The evidence of pedigree
\nrelied by the first appellate court and the High Court is relevant and
\nadmissible to prove relationship  under Section 30 (5) and Section 50
\nof the Evidence Act.\n<\/p>\n
\tLearned counsel appearing for the appellants then urged that
\nthe courts below ought to have dismissed the suit for partition on the
\nground that it was barred by limitation as the predecessors-in-title  of
\nthe defendants had prescribed his adverse possession on the land. In
\nsupport of this argument, it is submitted that the most important
\ndocument was ignored by the courts below being order of the then
\nRegency Court of  Kolhapur Estate dated 30th March, 1945 [Ex.68].
\nThe order of the Regency Court of the erstwhile Estate of Kolhapur
\nwas passed in appeal in revenue proceedings  in which predecessors-
\nin-title of the plaintiff objected to the claim of predecessors-in-title of
\nthe defendants to the status of Watandar. The claim of the
\npredecessors-in-title of the defendants to the status of Watandar was
\non the basis of his adoption by Hari who was one of the sons of the
\noriginal Watandar Suryaji.\n<\/p>\n
\tIt is argued that by order dated 30th March, 1945 of the
\nRegency Court, the objection of the predecessors-in-title of the
\nplaintiff was rejected and the predecessors-in-title of the defendants
\nwas recognised as Watandar. The erstwhile Watandar, thus, came in
\npossession of the suit lands and there was thus, a clear ouster from
\nthe lands of the plaintiff’s predecessors-in-title. It is submitted that
\nthe possession of  the predecessors-in-title of the defendants from
\nthe year 1945 was, thus, adverse and had ripened into title by
\nprescription. The trial court, therefore, was right in dismissing the
\nsuit for partition on the ground of defendants having prescribed
\nadverse possession.\n<\/p>\n
\tWe find that there is a serious flaw in the legal argument
\nclaiming title by adverse possession. The suit lands held by erstwhile
\nWatandar or Inamdar were impartible under the then existing law.
\nThe contest inter se for the status of Watandar between members of
\nthe family ended by order of Regency Court dated 30th March, 1945
\nand the only result was that the predecessors-in-title of the
\ndefendants was allowed to  possess the land as Watandar being the
\neldest member of the family of original Watandar on the rule
\nprimogeniture.\tAfter the abolition of Watan or Inam and when a re-
\ngrant of the land was made to the Watandar, the properties came
\nback to the whole body of joint family of the erstwhile Watandar and
\nhe then possessed the land for and on behalf of the family. Such
\nlands which were re-granted to Watandar became properties returned
\nto the family of the Watandar and became partible. The possession of
\nthe predecessors-in-title of the defendants pursuant to the order of
\nRegency Court on 30th March, 1945 as Watandar cannot be held to be
\nadverse to the other members of the family after the abolition of
\nInams and Watans and regrant of those lands to the Watandar.  The
\nInam and Watan lands thus  regranted to the Watandar enured for
\nthe benefit  of whole family of Watandar and it is only thereafter they
\nbecame partible. Two courts below have not found any evidence on
\nrecord to infer adverse possession of the defendants after the lands
\nwere returned to the family of Watandar on abolition of Inams and
\nWatans. The right to partition was denied only when the plaintiff
\ndemanded partition by a notice. The suit thereafter was filed within
\nthe prescribed period of limitation. Similar argument based on
\nadverse possession and limitation has been repelled by three Judges
\nBench of this Court in the case of of  Annasaheb Bapusaheb Patil
\n(Supra) and the following legal position explained therein fully
\nanswers the plea against the defendants :-\n<\/p>\n
“The possession of the family property by a member of the
\nfamily cannot be adverse to the other members but must
\nbe held to be on behalf of himself and other members. The
\npossession of one, therefore, is the possession of all. The
\nburden lies heavily on the member setting up adverse
\npossession to prove adverse character of his possession by
\nestablishing affirmatively that to the knowledge of other
\nmember he asserted his exclusive title and the other
\nmembers were completely excluded from enjoying the
\nproperty and that such adverse\tpossession had continued
\nfor the statutory period. Mutation in the name of the elder
\nbrother of the family for the collection of the rent and
\nrevenue does not prove hostile act against the other. The
\nright of the plaintiff to file suit for partition had arisen after
\nthe Act has come into force and re-grant was made by the
\nCollector under sub-section (1) of Section 5. The
\ndefendant, therefore, must plead and prove that after the
\nre-grant, he asserted his own exclusive right, title and
\ninterest to the plaint schedule property to the knowledge
\nof the plaintiff and the latter acquiesced to such a hostile
\nexercise of the right and allowed the defendant to remain
\nin continuous possession and enjoyment of the property in
\nassertion of that hostile title during the entire statutory
\nperiod of 12 years without any let and hindrance and the
\nplaintiff stood thereby.\n<\/p>\n
\tThe learned counsel then urged some technical grounds. It is
\nargued that since the High Court did not frame substantial questions
\nof law as required by Section 100 of Code of Civil Procedure, the case
\nshould be remanded for fresh decision as is being done by this Court
\nafter interpretation of Section 100  of Code of Civil Procedure in the
\ncase of\t Santosh Hazari vs. Purushottam Tiwari<\/a> (deceased)
\nThr. LRs. [2001 (3) SCC 179].\n<\/p>\n
\tFrom the judgment under appeal, we find that the High Court in
\nits body of judgment has clearly formulated for answer two questions
\nthus :-\n<\/p>\n
“Firstly, whether the plaintiff respondent has
\nestablished his relationship (as given in the
\npedigree) and secondly whether the plaintiff is
\nentitled to claim partition?”\n<\/p>\n
\tIn our opinion, these two questions have been lucidly answered
\nby the High Court by considering the arguments advanced before it
\non relationship and adverse possession. We, therefore, find that there
\nis more than substantial compliance of the provisions of Section 100
\nof Code of Civil Procedure and a prayer for remand is absolutely
\nwithout any merit. The suit of the year 1977 under the second appeal
\nin the High Court was decided in the year 1990. We have given full
\nhearing to the parties on all questions of law raised or which would be
\nraised before the High Court. A prayer for remand of the case in such
\ncircumstances for fresh decision of second appeal is wholly uncalled
\nfor.\n<\/p>\n
\tLastly, it is urged that not all the legal representatives of the
\noriginal plaintiff had preferred appeal against the dismissal of suit by
\nthe trial court. In accordance with  Order 41 of Rule 4 of Code of Civil
\nProcedure, the appellate court could not have varied the judgment of
\nthe trial court against the defendants at the instance of only some of
\nthe plaintiffs appealing against the decree.\n<\/p>\n
\tThis argument has no merit. In a suit for partition, plaintiff and
\ndefendants are parties of equal status. If the right of partition has
\nbeen recognised and upheld by the court, merely because only some
\nof the plaintiffs had appealed and not all,  the court was not
\npowerless. It could invoke provisions of Order 41 of Rule 4 read with
\nOrder 41 of Rule 33 of Code of Civil Procedure. The object of Order
\n41 of Rule 4 is to enable one of the parties to a suit to obtain relief in
\nappeal when the decree appealed from proceeds on a ground
\ncommon to him and others. The court in such an appeal may reverse
\nor vary the decree in favour of all the parties\t who are in the same
\ninterest  as the appellant. [See  Ratanlal vs. Firm Lalman Das
\n(1970) A. SC. 108; and Jiwan Nath vs. State of M.P. (1971) A.
\nSC. 742].\n<\/p>\n
\tOrder 41 Rule 4 of the Code enables reversal of the decree by
\nthe court in appeal at the instance of one or some of the plaintiffs
\nappealing and it can do so in favour of even non-appealing plaintiffs.
\nAs a necessary consequence such reversal of the decree can be
\nagainst the interest of the defendants vis–vis\t non-appealing
\nplaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33.
\nOrder 41 Rule 33 empowers the appellate court to do complete
\njustice between the parties by passing such order or decree which
\nought to have been passed or made although not all the parties
\naffected by the decree had appealed.\n<\/p>\n
\tIn our opinion, therefore, the appellate court by invoking Order
\n41 Rule 4  read with Order 41 Rule 33 of the Code Could grant relief
\neven to the non-appealing plaintiffs and make an adverse order
\nagainst all the defendants and in favour of all the plaintiffs. In such a
\nsituation, it is not open to urge on behalf of the defendants that the
\ndecree of dismissal of suit passed by the trial court had become final
\ninter se between the non-appealing plaintiffs and the defendants.\n<\/p>\n
\tConsequent upon the aforesaid discussion, this appeal fails and
\nis hereby dismissed with costs.\n<\/p>\n
\tCounsel’s fee be allowed as per rules.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chandramohan Ramchandra Patil & … vs Bapu Koyappa Patil (Dead) Thr. … on 19 February, 2003 Author: Dharmadhikari Bench: Brijesh Kumar, D. M. Dharmadhikari CASE NO.: Appeal (civil) 9393 of 1995 PETITIONER: Chandramohan Ramchandra Patil & Ors. RESPONDENT: Bapu Koyappa Patil (dead) Thr. LRs. & Ors. DATE OF JUDGMENT: 19\/02\/2003 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-115124","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChandramohan Ramchandra Patil & ... vs Bapu Koyappa Patil (Dead) Thr. ... on 19 February, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandramohan-ramchandra-patil-vs-bapu-koyappa-patil-dead-thr-on-19-february-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandramohan Ramchandra Patil & ... vs Bapu Koyappa Patil (Dead) Thr. ... on 19 February, 2003 - 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