JUDGMENT

OZA, J. :— This appeal is filed by the original plaintiff whose suit for partition and possession was decreed by the trial Court but on appeal before the Bombay High Court the judgment was reversed and the suit was dismissed. After grant of leave by this Court the present appeal is filed.

2. The property in suit was Inam land held by the ancestors of the appellant under Vat Hukums of Kolhapur State. The ancestors of the appellants respondents have been holding this Watan (Inam) land in lieu of service and as they were holding in the capacity of Vatan or Inam they were impartible. After contesting on various grounds the suit was decreed so far as the Watan lands were concerned. As regards Survey No. 397/1-2 the trial Judge found that they were converted into Rayatwari lands in 1904 and were allotted in an earlier partition to defendant No. 3 and therefore in the present suit they could not be claimed as properties liable to partition. About the lands held as Vatan lands the suit was decreed.

3. The present appellants filed a first appeal before the High Court of Bombay in respect of Survey No. 397/1-2 suit regarding which was dismissed by the trial court whereas the respondent No. 3 who was original defendant No. 3 also preferred a first appeal before the High Court in respect of the decree for partition granted against him and in favour of appellants. A Division Bench of the Bombay High Court heard both these matters and allowing the defendants respondents appeal dismissed the suit of partition holding that when Watan (Inam) rights were abolished all rights including the right of partition also stand abolished. As the suit itself was dismissed the appellants appeal in respect of Survey No. 397/1-2 also was dismissed.

4. Before the High Court of Bombay when another appeal of the similar type came up the Bench hearing the appeal did not agree with the view taken in the judgment of this case and therefore made a reference to the Full Bench so far as the judgment in the appellants case. The appellant filed the SLP before this court which was granted.

5. The Full Bench of the Bombay High Court in the case of Laxmibai v. Ganesh, AIR 1977 Bom 350 overruled the impugned judgment by taking the view that on the abolition of Inam the property tenures for the benefit of the joint family and the other members of the family are entitled to claim partition and possession.

6. It was contended by learned counsel for the appellant that in Nagesh Bisto Desai v. Khando Tirmal Desai, (1982) 3 SCR 341 this Court approved the Full Bench view and disapproved the view taken by the High Court of Bombay in the appeal of the appellant i.e. the impugned judgment and consequently the view taken by the High Court in the impugned judgment could not be sustained.

7. In Nagesh Bisto Desais case (AIR 1982 SC 887) a Bench of three Judges of this Court considered the effect of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and while considering the effect of abolition considered the view taken in the impugned judgment by the Bombay High Court and it observed (at p. 901) :

"In Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil (1976 (78) Bom LR 720) a Division Bench of the High Court took a view to the contrary and observed :

..........The words "all incidents appertaining to the said Watans shall be and are hereby extinguished", must include every kind of incident, including the so-called incident of a right to partition as claimed by the plaintiff in this case, even if such right existed. Further, the lands were resumed by the Government on that date in law and vested in the Government till the lands were re-granted under S. 5 or 6, or 9 of that Act.

........It is not possible for us to consider it reasonable to hold that although the lands were resumed by the Government and the holder himself had lost all his rights till the lands were re-granted to him except the right of asking for re-grant, the incidents of the property under personal law apper