2016(5) ALL MR 913
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. K. DESHPANDE, J.
Wamanrao Vyankatrao Kawane Vs. Vyankatrao Karkaji Kawane (D) through LRs. & Ors.
Second Appeal No.483 of 2002,Second Appeal No.491 of 2002
19th August, 2016.
Petitioner Counsel: Shri P.R. AGRAWAL, h/f Shri A.M. DESHPANDE
Specific Relief Act (1963), S.6 - Suit for possession - On basis of title acquired by virtue of - Dispute between father and sons - Finding of Lower Appellate Court that suit property is joint family property and not self acquired property of father - Not challenged by father - Partition deed was also held as unregistered document and therefore, inadmissible in evidence - Findings of Lower Appellate Court along with finding that sons have failed to establish their independent title over suit property shall remain intact - Parties shall be at liberty to file separate suit for partition and separate possession. (Paras 3, 5, 6)
JUDGMENT :- Regular Civil Suit No. 553 of 1995 was filed by Narayan Vyankat Kawane against his father Vyankatrao for possession based on title on the basis of partition effected on 11.04.1976. The suit was dismissed on 20.02.2001. Regular Civil Appeal No. 72 of 2001 filed by Narayan was also dismissed on 31.07.2002. Hence, the Second Appeal No.491 of 2002 by Narayan, the original plaintiff.
2. Regular Civil Suit No.9 of 1996 was filed by Wamanrao against his father Vyankatrao and two brothers Atmaram and Narayan, for declaration of title and it was dismissed on 06.03.1998. Regular Civil Appeal No.82 of 1999 preferred by Wamanrao was dismissed by the lower appellate Court by its common judgment and order dated 31.07.2002. Hence the Second Appeal No. 483 of 2002 is preferred by Wamanrao - the original plaintiff.
3. The dispute in both these matters is between the father - Vyankatrao and the sons Wamanrao, Atmaram and Narayan. The Courts below have held that the partition deed dated 11.04.1976 was an unregistered document and hence inadmissible in evidence. Though the trial Court recorded the finding that the property was the self acquired property of Vyankatrao, the father, the lower appellate Court has reversed the said finding and it is held that the property is the joint family property. The father Vyankatrao has not challenged such a finding recorded by the lower appellate Court in the common judgment delivered in both the appeals. In view of this, the finding recorded by the lower appellate Court that the property is the joint family ancestral property of the plaintiffs and the defendants in both the suits becomes final.
"Whether it is necessary for the members of the joint family to effect partition by a solitary document and whether the joint family properties could be partitioned by two separate documents executed on the same day at the same time?
5. The Courts below have held that the plaintiffs in both the suits have failed to establish their independent title to the suit property. It is not necessary to consider the aforesaid substantial question of law framed by this Court and since Vyankatrao, the father, has not challenged the findings recorded by the lower appellate Court that the suit properties are ancestral properties of the plaintiffs and the defendants in both the suits, it can be left open for the parties to file a suit for partition and separate possession.
6. In the result, both the second appeals are dismissed. The findings recorded by the lower appellate Court that the suit property was the joint family property remains intact along with the finding that the plaintiffs in both the suits have failed to establish their independent title over the suit property shall remain intact. The parties shall be at liberty to file separate suit for partition and separate possession and none of the observations made by the Courts below shall come in the way of the parties, except the findings which are confirmed by this Court.