IMPORTANT POINT
High Court was right in affirming the holding of 1st appellate Court that plaintiff respondent has established his relationship (as given in the pedigree) and that the plaintiff is entitled to claim partition.

Headnote:(i) Suit for Partition of the erstwhile Watan or Inam lands of his family by plaintiff-Dismissed by trial Court-Decreed by 1st appellate Court which was affirmed by High Court-Appeal against to Supreme Court-Whether plaintiff (respondent) has established his relationship (as given in the pedigree)? (Yes)-Whether plaintiff s claim is barred by adverse possession and limitation? (No).
       Held : The above discussion of evidence have been duly taken note of by the High Court in second appeal and the decision of the appellate court on that issue has been upheld. For the aforesaid reasons, it is not open to the defendants to raise ground on the correctness of the finding of fact on the issue of relationship. The evidence of pedigree relied by the first appellate court and the High Court is relevant and admissible to prove relationship under Section 30(5) and Section 50 of the Evidence Act. (Para 5)
       Held further : Two courts below have not found any evidence on record to infer adverse possession of the defendants after the lands were returned to the family of Watandar on abolition of Inams and Watans. The right to partition was denied only when the plaintiff demanded partition by a notice. The suit thereafter was filed within the prescribed period of limitation. Similar argument based on adverse possession and limitation has been repelled by three Judges Bench of this Court in the case of Annasaheb Bapusaheb Patil (Supra) and the following legal position explained therein fully answers the plea against the defendants :-
       "The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other member he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and re-grant was made by the Collector under sub-section (1) of Section 5. The defendant, therefore, must plead and prove that after the re-grant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile title during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby. (Para 8)
       (ii) Civil Procedure Code, 1908-Section 100-Second appeal-High Court in its judgment formulated for answer two questions-A prayer for remand of the case-Whether sustainable? (No) (see paras 9 and 10).
       (iii) Civil Procedure Code, 1908-Order 41 Rules 4 and 33-Suit for Partition by plaintiff-Dismissed-Plaintiff dying-LR s brought on record-All LR s not filing appeal-Appellate Court reversed trial Court-Whether sustainable in law? (Yes)-Appeal dismissed.
       Held : In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non-appealing plaintiffs and the defendants. Consequent upon the aforesaid discussion, this appeal fails and is hereby dismissed with costs. (Paras 14 and 15)

JUDGMENT

Dharmadhikari, J.-The present appellants were defendants before the Trial Court in suit for partition instituted in the Court of Civil Judge, Jr. Division, Kagal, District Kolhapur in the State of Maharashtra. The suit filed by the deceased plaintiff [now represented by his legal representatives impleaded as respondents herein] for partition of the erstwhile Watan or Inam lands of his family was dismissed by the trial court. The First Appellate Court by judgment of reversal decreed the suit of the plaintiff and it has been confirmed by the High Court in second appeal recognising the plaintiffs right of partition of the suit lands to the extent of 1/3 share. The preliminary decree has been framed for passing a final decree and grant of separate possession.

2. Learned counsel appearing for the defendants, assails the decree of partition granted to the plaintiff/respondent but does not dispute the legal position settled by the two Judges Bench decision of this Court in the case of Kalgonda Babgonda Patil vs. Balgonda Kalgonda Patil etc. etc. [AIR 1989 SC 1042] and three Judges Bench decision of this Court in the case of Annasaheb Bapusaheb Patil vs. Balwant [1995 (2) SCC 543]. In the aforesaid two Judges and three Judges Bench decisions of this Court, it has been held that erstwhile Inam or Watan lands held by the senior most member of the family through lineal descendant on the rule of primogeniture, on abolition of Inamdari or Watandari under the provisions of Bombay Pargana and Kulkarni Watans Abolition Act (60 of 1950) and thereafter by the Bombay Inferior Village Watans Abolition Act, 1958, after re-grant of those categories of land to the Watandar or Inamdar, become partible properties between the members of the family of the Watandar or Inamdar. See the following statement of law in the decision of three Judges Bench in the case of Annasaheb Bapusaheb Patil (supra) :-

"The lineal primogeniture regulating succession to the estate cannot prevail under Section 4 of 1955 Act, as being nothing more than incidents of the watan which stand abrogated by Section 4 of that Act. It was, therefore, held that watan families if had a hereditary interest in the watan property, such inheritance enures to the benefit of all the members of the family as the property belongs to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called "watandars of the same watan" within the Watan Act. The members of the joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being and therefore, the re-grant of the lands to the watandar under Section 4 of that Act must enure to the benefit of the entire joint Hindu family. This Court upheld the full Bench judgment of the Bombay High Court reported in Laxmibai Sadashiv Date v. Ganesh Shankar Date and another judgment in Dhondi Vithoba Koli v. Mahadeo Dagdu Koli. The Division Bench judgment in Babgonda case was overruled".

3. The first ground urged by the learned counsel for the defendants is that the original deceased plaintiff Bapu Koyappa Patil failed to prove his relationship with the main ancestor Suryaji, who was the first Watandar, hence his claim for partition to the extent of 1/3 share was rightly negatived by the trial court.

4. The question of relationship and the dispute on the correctness of the pedigrees produced by the parties in the case for proof of relationship of the parties with the original ancestor Suryaji, is essentially a question of fact. The trial court in non-suiting the plaintiff has recorded a finding amongst others that in the pedigree Ex. 71 the branch of sons of Suryaji, to which the plaintiff claims to be belonging, is not shown and that was produced in proceedings in the year 1945. The First Appellate Court went thoroughly into the dispute of correctness of the rival pedigrees filed by the parties and chose to rely on the oldest pedigree Ex.69 whic

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2003 Supreme(SC) 217

IMPORTANT POINTHigh Court was right in affirming the holding of 1st appellate Court that plaintiff respondent has established his relationship (as given in the pedigree) and that the plaintiff is entitled to claim partition.

Cases Referred (3)

IMPORTANT POINT
High Court was right in affirming the holding of 1st appellate Court that plaintiff respondent has established his relationship (as given in the pedigree) and that the plaintiff is entitled to claim partition.