Second Appeal No.669 of 1990,Civil Application No.5894 of 1990

6th October, 2018.

Petitioner Counsel: Mr. P.K. DHAKEPHALKAR, Sr. Adv. a/w S.V. DHAKEPHALKAR, a/w SANJAY GUNJKAR
Respondent Counsel: Mr. J.V. DANGE I/b HEMANT GHADIGAONKAR, Mr. DILIP BODAKE

Cases Cited:
T.K. Mukherjee Vs. Afzal Baig, 1915 ILR 37 Allahabad 155 [Para 5,9]
Gafur Mulla Vs. Kutubi, 1990 (2) BCR 478 [Para 5,10]
Laxmanrao Mahadeo Nikose Vs. Narayan Mahadeo Nikose, 2015(1) ALL MR 278=2014 (6) BCR 228 [Para 5,11]
Jujivarapau Kotamma Vs. Pappala Simhachalam, AIR 1969 AP 76 [Para 5,8]
Nagesh Bisto Desai Vs. Khando Tirmal Desai, 1982 ALLMR ONLINE 85 (S.C.) : AIR 1982 SC 887 [Para 19]
Ganpati Madhav Sawant Vs. Dastur Madhav Sawant, 2008(2) ALL MR 807 (S.C.)=2008 (3) SCC 183 [Para 20]

JUDGMENT

JUDGMENT :- This second appeal, arising out of separation of shares of the Muslim co-heirs, has been admitted on substantial questions of law, relating to (a) grounds of maintainability, (b) partition of re-granted property, and (c) renunciation of rights by the plaintiff. After hearing the arguments and after giving intimation , the parties are heard on additional substantial question of law relating to res judicata in view of judgment and decree in Regular Civil Suit No. 335/1952.

2. The facts relevant for deciding this appeal lie in narrow compas are as under:

2.1. Respondent No. 1 Gafur is the original plaintiff. The parties are descendants of Bapu Patel. Babu had three wives by name Begam, Bayama, Chhamubi. The plaintiff Gafur and defendant No. 7 Chhotubi are children of Bayama and Bapu. Deceased Chamubi was mother of 2 sons and 3 daughters, who are defendant No. 1 to 6. Third wife Begam had one son by name Baban. Both died much earlier. The deceased Bapu Patel was owner of following properties (the suit properties) :

A] Agriculture lands:
Survey No.	Area H R
1. 583/3	0-84
2. 306	0-36
3. 307/1	0-20
4. 307/2	0-21
5. 307/3	0-53

B] House property : City Survey No. 1227 of village Ramdoha Ali, admeasuring 223.2 Sq. mt.

2.2 After Bapu's death, according to plaintiff, he was having one-half share in the suit properties. He demanded separation of his share from his step brothers and sisters. As they refused to effect separation, the suit for partition (?) was filed for separation of the shares and mesne profit @ Rs. 100/- per month.

2.3 The defendants did not dispute relationship but claimed that Regular Civil Suit No. 335 of 1952 was filed earlier and after the judgment and decree in the same suit, the execution proceeding, viz. Regular Darkhast No. 33 of 1957 was taken out for separation of the properties, but the plaintiff did not claim his share for 22 years, and thereby he has relinquished his share. In 1960, the plaintiff tried to get the possession but the defendants opposed it and since then the defendants were in adverse possession of the suit properties for 22 years, and therefore, the suit claim was barred. The suit lands were Vatan lands. Those Vatan were abolished and the lands were taken by the Government, but those were re-granted in favour of Chamubi, mother of the defendants on 27.3.1964. Said regrant was on condition of individual terms.

2.4 After the writtenstatement, the plaintiff amended the plaint. He admitted that in Regular Civil Suit No. 335 of 1952, the suit was decreed for separation of shares. The plaintiff took his separate share in 1958 and entrusted it to Chamubi, she as manager of the family took possession of the property. It was kept in her name with the consent of the plaintiff. She was sharing the income from the suit properties with the plaintiff. She died in 1974, and thereafter the defendants refused to share income, and challenged the plaintiff's right by obstructing him.

2.5 On the basis of these pleadings, the issues were framed at Exhibit 25.

2.6 After recording the evidence, the learned Civil Judge held that the plaintiff is entitled to 7/ 32nd share in the suit properties mentioned at Sr. Nos. 1, 3 to 5 (Survey Nos. 583/3, 307/1, 307/2, 307/3) and 7/52nd share in the suit house mentioned at Sr. No. 1B, and the land at mentioned at Sr. No. 1A(2), viz. Survey No. 306. Learned Civil Judge, held that there was no res judicata; the defendants failed to prove adverse possession; partition of re-granted property was maintainable. He granted mesne profits @ Rs. 100/- per annum.

2.7. The aggrieved defendants preferred Regular Civil Appeal No. 599 of 1989 in District Court Satara. After hearing the parties, the District Judge, Satara was pleased to dismiss the appeal with costs. Hence, this second appeal.

3. Mr. P. K. Dhakephalkar, learned senior counsel for the Appellant argued that in Regular Civil Suit No. 335 of 1952 the decree for separation of shares was passed. The copies of judgment and decree were filed in the first appeal. The first appellate court erred in neglecting those documents and held that the decree was only for joint possession. There was admission in the pleadings of the plaintiff that he had received possession of the land and it was entrusted with Chamubi, his stepmother. It was not proper on the part of the first appellate court to hold that pleadings of the plaintiff were defective. The decree specifically directed separation of the shares and the only course open for plaintiff was to apply for final decree, which the plaintiff has not done. The new suit was not tenable.

4. He submitted that in Muslims, there is no concept of joint family and Chamubi could not have been manager of the property. He also pointed out that the plaintiff did not take any action from 1957 to 1981. He argued that though the suit property was tenanted property, it could be partitioned and separate possession could have been given to the plaintiff of his share. The fresh suit was certainly barred as res judicata.

5. Per contra, learned advantage Mr. Dange supported the judgment and decree of the trial court and the first appellate court, contending that there are concurrent findings of both the courts below. At the time of decree in Regular Civil Suit No. 335 of 1952, the land was in possession of the tenant and only constructive joint possession was received by the plaintiff. There was no scope for effecting partition and when Chamubi succeeded in getting the possession from tenants, then the only cause of action accrued to the plaintiff to claim separation of his share. He relied on (i) T.K.Mukherjee vs Afzal Baig 1915 ILR 37 Allahabad 155; (ii) Gafur Mulla vs Kutubi 1990 (2) BCR 478 (iii) Lakshman vs Narayan 2014 (6) BCR 228 : [2015(1) ALL MR 278] and (iv) Jujivarapau Kotamma vs Pappala Simhachalam AIR 1969 ANDHRA PRADESH 76, to submit that res judicata is not applicable to suit for partition.

The substantial question of law with my findings are as under:

1.	Whether both the courts below erred in coming to the conclusion that the plaintiff’s suit for partition is maintainable?	In the affirmative.
2.	Whether it was legal and proper on the part of the courts below to come to the conclusion that the suit for partition is maintainable even though the suit properties are re-granted in the name of Chamubi?	In the affirmative with respect to regrant.
3.	Whether it was legal and proper on the part of the courts below to come to the conclusion that the plaintiff has not renunciated his right in the suit property, in spite of keeping quiet for about 22 years?	In the affirmative.
4.	Whether the suit is barred by res judicata in view of judgment and decree in Regular Civil Suit No. 335 of 1952?	In the affirmative.
Reasons

6. Most of the facts in this matter are admitted. The issues involved are only law points.

7. Bapu Patel was the owner of 5 agriculture lands mentioned at Sr. No. 1A and house property at Sr. No. 1B in the plaint. He had only one wife living at the time of his death Chamubi and he had one son Gafur - the plaintiff and one daughter Chhotubi (defendant No. 7) from Bayma. He left behind two more sons Hasan (defendant No. 1) and Kasam (defendant No. 2) and four daughters, viz. Husenbi (defendant No. 3), Niyamabi (defendant No. 4), Habibbi (defendant No. 5) and Fatima (defendant No. 6) from Chamubi. The record shows that in the first appeal, the defendants produced the certified copy of judgment and decree in earlier suit Regular Civil Suit No. 335 of 1952 alongwith list Exhibit 39. Though these are public documents, these are not exhibited. It is necessary that these documents should be kept in "C" file of the trial court. These documents indicate that the plaintiff Gafur had filed Regular Civil Suit No. 335 of 1952 for the same reliefs. The suit remained uncontested. It was decreed. In the said suit, Chamubi, Babya and Jafar Ahmed were additional parties. Chamubi was widow of Bapu. That time Gafur, Babya, Kasam and Hasan were four sons and defendant Nos. 5 to 9 were five daughters. Jafar Ahmed was a third party. Chamubi admitted the suit claim and defendant Nos. 2 to 9 did not contest. Defendant No. 10 Jafar Ahmed alone contested in respect of property mortgaged to him. The court held that plaintiff has 7/32nd share in the properties described at Sr. Nos. 1 to 5 and 7/52nd share in the properties described at Sr. Nos. 6 and 7. Sr. No. 6 is land Survey No. 306 admeasuring 36 R and Sr. No. 7 is the house property. Though the judgment in Regular Civil Suit No. 335 of 1952 is silent about the manner in which the shares were determined, it appears that share were determined as follows:

Chamubai - 1/8th, remaining four sons 7/8th shares in respect of regrant properties, daughters were given no shares in lands as those were Vatan Inam properties. The plaintiff got 1/ 4th of 7/8th i.e. 7/32nd share in lands mentioned at Sr. Nos. 1 to 5. In respect of other properties five daughters were given one share and four sons were given double shares i.e. two shares each, total 13 shares in the 7/8th share in respect of property at Sr. No. 6 and 7. The shares of daughters would be for 7/104th share whereas shares of sons would be 7/52nd .

8. Mr.Dangle Advocate relied on :

Jujivarapau Kotamma vs Pappala Simhachalam AIR 1969 ANDHRA PRADESH page 76. The husband of 5th defendant was a a party but, the 5th defendant herself was not a party. It was held that said decision would not operate as resjudicata against the wife when she was not a party. (The same is not applicable to the facts of the present case.)

9. T.K. Mukherjee vs Afzal Beg (1915) ILR 37 Allahabad page 155. In this matter, earlier suit for partition was dismissed on 11.11.2005. The plaintiff filed a fresh Suit without seeking permission of the Court. It was observed that when the previous suit was pending, there was an agreement between the defendant's predecessor-in-title of the defendants agreed to execute a sale deed to the plaintiff of all his rights for a sum of Rs.5700/-. The said agreement was never carried out and therefore, the fresh a Suit was brought. The High Court held that as soon as defendants-predecessor in title failed to carry out the compromise the parties were relegated to their rights as they existed prior to the compromise. The right to bring a Suit for partition unless other Suits is a continuing right incidental to the ownership of joint property. It may be that at one time the desire for partition may cease, circumstances may again occur which make it desirable or necessary that partition should take place.

10. Further reliance is placed on Gafur Bandu Mulla vs Khutubbi Mard Kondiba Mulla 1990 (2) Bom C.R.478. In this case, a consent decree was passed in Suit No.602 of 1925. The parties were given 1/3rd share each. The said decree was for a declaration of 1/3rd share of plaintiff nos.1 and 3 and their father. But, the parties continued to stay together till 1965. At that time the plaintiff no.2 was hardly 5 to 6 years old and the plaintiffs were staying jointly with their uncle Kondiba. By lapse of time, the said Judgment and decree became un-enforceable. It was held that it was competent for the parties or any of them if they still continue to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition. In this Suit, by reason of former decree for partition, though that decree may operate as resjudicata in respect of any claim or defence which was or might have been raised in the Suit in which it was passed. Nonetheless, it was a joint family property while attracting the principles of resjudicata.

11. In Laxmanrao Mahadeo Nikose vs Narayan Mahadeo Nikose, 2015(1) ALL MR 278 it is observed as under:

" Moreover as pointed out in the case of Nasratullah vs Mujabulla (1) "When a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them if they still continue to be interested in the joint property to bring another suit for a declaration of a right to partition in case their right to partition is called in question at a time when by reason of limitation or otherwise, they cannot put into effect the decree first obtained. In this respect, suits for declaration of right to partition differ from most other suits. So long as the property is jointly held, so long does a right to partition continue."

"Her right to a share if possession is a recurring right. If the plaintiff, for any reason, Date of Decision: 2nd April 1946 not to enforce the right immediately, she should be deemed to have chosen to continue the tenancy in common for sometime or till she would find it necessary to seek its termination. A suit which is barred by withdrawal of the claim under Order 23 Rule 1 (3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may now be brought will be on a cause of action arising upon a demand now made and refused :(Radhe Lal vs Mulchand) 4,46 All. 820 :AIR 1924 (11) All.905.If defendant 11 made a promise to give an equal area out of his other lands and if that is enforceable in law, the plaintiff can sue for specific performance of that contract and, in the alternative make a claim on the original cause of action for share in the lands of her father."

12. Learned senior counsel Mr.Dhakephalkar strenuously argued that these rulings will not govern muslim family as there is no concept of joint family in Muslims. It is true that in Muslims, there is no concept of joint family. The present Suit and earlier Suit being Regular Civil Suit No.335 of 1952 were also not for partition as contemplated under the Hindu law. Both the Suits were for separation of shares of the plaintiffs and the defendants by virtue of succession as per Muslim law. When the parties are jointly enjoying any property left behind by a common ancestor, they may continue to hold it jointly or they may seek separation of their shares. Even if there is no concept of joint family in Muslims, the parties can continue to enjoy the property jointly. However, in the present case, Regular Civil Suit no.335 of 1952 was filed by the plaintiff. It was between the same parties, in respect of same properties, for same right of shares in the properties and it was before a competent Court. The only difference was that the agricultural lands belonging to the parties jointly, were in possession of agricultural tenants. Learned advocate for the plaintiff raised two contentions.

(a) The point of resjudicata can be decided only by filing copy of the plaint, written statement and judgment of the trial Court. It cannot be decided merely on the basis of judgment. .

(b) In the peculiar facts of the present case, I find that the said judgment is not applicable. The respondentplaintiff has filed not only copy of the judgment but, also copy of the decree at (page 159). It is typed below copy of the plaint and it contains all necessary averments from the plaint. The judgment shows that the defendant no.1 had filed written statement of admission, as well as defendant nos. 2 to 9 had not filed any written statement at all. The said suit was contested by defendant no.10 who was not a family member. His dispute was regarding the claim for only one property bearing survey No.583 of 2003 on the basis of mortgage. The said dispute raised was not in connection with rights of the plaintiffs and defendant nos.1 to 9 with regard to the Suit properties. The plaintiffs in the Suit itself has recorded that he had filed Regular Civil Suit No.335 of 1952 for partition of the same properties. The facts indicate that there was no dispute that previous Regular Civil Suit No.335 of 1952 was in respect of the same property and same parties and relating to the same controversy of separation of shares on the death of common ancestral Bapu Patel. In fact, after filing of the written statement by the defendants, the plaintiffs amended the plaint and pleaded that even there was execution of the said judgment and decree and he had received possession. I therefore, find that there is no manner of doubt that Regular Civil Suit no.335 of 1952 is a previous Suit between the same parties.

13. The rulings which laid down that there is no res judicata in case of non-execution of a decree of partition are in respect of Hindu families. In Hindus, there is a concept of joint family. A co-parcener can even after decree can come together and again form a joint family or there can be blending of properties or separate shares of the parties. No such concept can be assumed in case of muslims. When a muslim person dies, his legal heirs have specified shares. Once the shares are decided by the Court, it becomes a preliminary decree. The further continuation of joint enjoyment by co-heirs will not bring any change in the shares determined by the Court. The parties may get their shares separated by filing a final decree proceedings but the preliminary decree would bind the parties and as the jointness of the family or properties cannot be equated with joint family property and separation of their shares cannot be equated with the principles of partition. I therefore, find that the judgment and decree in Regular Civil Suit No.335 of 1952 would be binding on the parties in the present matter, to the extent to which it declares the shares. However, the said judgment was a preliminary decree only. With regard to the grounds of final decree, it was observed as follows :

"Looking to the extent of land and use and it was argued before me that the plaintiff will rest content if he has been given the joint possession of the share in property. In the alternative, the plaintiffs pleaded for benefit under the Indian Property Act. I, for myself agree and shall like to give the plaintiff all the options. This being a Suit for partition, Article 182 of the Indian Limitation Act, will not be applicable and hence, proceedings in absence of the decree shall never be barred by limitation."

In the order, it has been recorded :

Point no.3:

"If the plaintiff wants separate possession after partition of shares of the property described at serial nos. 1 to 4 and 6, 9, he do get the same through the Collector or through the subordinate of him, as the case may be, under section 54 of the Code of Civil Procedure, 1908 and if he wants separate possession pertaining to the property at serial no.5, he do the same as above, after recovering the court fee." (last sentence is in writing of the Judge and is not wholly legible).

14. I, therefore agree with Mr.Dhakephalkar learned senior counsel that the plaintiff could not have filed separate Suit, and should have gone for final decree proceedings to execute the decree in Regular Civil Suit No.335 of 1952. In the facts of the present case, it is not disputed that the Suit properties were in possession of the tenants and Chamubi, the step mother of the plaintiff and real mother of defendant nos.1 to 6 had filed proceedings against the tenant and recovered possession much later.

15. Mr.Dhakephalkar learned senior counsel appearing for the appellants tried to impress that the decree is comprehensive and it permitted separation of the shares of the land in possession of the tenant and the decree could have been executed and constructive possession of the specified shares of the plaintiffs could have been carved out. This argument cannot be accepted.

16. The learned trial Judge had determined the shares and given discretion to the plaintiffs either to hold the joint possession or to go for separation of the properties but, the facts on record shows that separation could have been made only through the Collector by sending a precept under section 154 and no such precept was ever sent. The possession receipt and the copies of the execution Application and orders disclose that Chamubi received joint possession of all the properties from the tenant through the bailiff and there was no separation of shares and the bailiff could not have separated the shares. No such shares were demarcated nor those were given to the plaintiff.

17. In the light of the observations made in the judgments, referred to herein above, the plaintiff was entitled to get the final decree proceedings initiated with a request for sending a precept to the Collector. At any rate, the cause of action for such a prayer accrued only after physical possession, as received from the tenants in the years 1966 and 1973. I therefore, find that the Suit in the present form was not maintainable but the plaintiff has a right to request the Civil Judge, Senior Division to send a precept for separation of shares. It is needless to state that if the plaintiff makes such a request, the defendants shall be at liberty to take all appropriate defences as may be available in-law.

18. In view of the above findings, I hold that the Suit in the present form was hit by the provisions of the resjudicata and was thus not maintainable. The substantial question of law framed are answered accordingly.

19. Another point raised was that the suit property was re-granted to Chamubi and therefore, it was not available for partition. The order of regrant dated 27.3.1964 itself shows that Chamubi received it as Manager of the joint family. Though, there is no concept of joint family property, the order indicates that Chamubi receives it on behalf of all the legal heirs of deceased Bapu Patel. Therefore, there is no substance in the contention that by virtue of regrant, Chamubi became the exclusive owner of the Suit property and the property was not amenable to partition. In this regard, reliance is rightly placed by the learned advocate for the respondents on the following ratio from Nagesh Bisto Desai vs Khando Tirmal Desai AIR 1982 SUPREME COURT 887 : [1982 ALLMR ONLINE 85 (S.C.)]. There is no such custom pleaded or proved. Para 16 reads as under :

"16. It has always been the accepted view that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who is the watandar for the time being. In order to understand the arguments on this point, it is necessary to deal with the incidents of a Deshgat watan. In the Bombay Presidency, it has always been treated to be the joint family property. It may be worthwhile to refer to the decision of the Privy Council in Adrishappa vs Gurshindappa L.R,. (1880) 7 I.A. 162 the head note of which is that:

Deshgat watan or property held as appertaining to the office of Desai is not to be assumed prima facie to be impartible. The burden of proving the impartibility lies upon the Desai, and on his failing to prove a special tenure or a family or district or local custom to that effect, the ordinary law of succession applies."

Hence, I find no substance in this challenge on this ground.

There are concurrent findings that there was no right was acquired by the defendants by adverse possession, nor there was renunciation of the rights by the plaintiff. The evidence on record, shows that there is no scope for interference with the concurrent findings of both the Courts on these points. Hence, I hold that the Suit is not maintainable only on the ground as it is hit by the principles of res judicata to the extent of determining the shares of the parties.

20. The learned trial Court erred in answering the issue of res judicata in negative so also erred in granting mesne profits at the rate of Rs.100/- p.a. without holding any inquiry. In this regard, the first appellate Court erred in coming to the same findings. In this regard, in Ganpati Madhav Sawant vs Dastur Madhav Sawant 2008 (3) SCC 183 : [2008(2) ALL MR 807 (S.C.)] it was held that inquiry into mesne profit is a must, and therefore the judgment of both the Courts cannot be sustained.

21. It is also necessary to mention here that the decree passed in Regular Civil Suit No.335 of 1952 cannot be implemented in the final decree in the same condition. In Regular Civil Suit no.335 of 1952, Baban son of Begum was alive and 7/32th and 7/52th shares were given to him. He subsequently died in 1957-58 as can be seen from the records in the execution proceedings. While there was a final decree and the decree in Regular Civil Suit No.335 of 1952, will have to be modified so as to grant shares to the deceased and the plaintiff, and the shares alloted to the deceased Baban but, he seems to have died issue-less.

22. With these observations, the appeal is allowed, The Judgment and decree of both the lower Courts are set aside and the Suit is dismissed as barred by the principles of resjudicata to the extent of preliminary decree proceedings i.e. for determination of shares. In view of disposal of Second appeal, Civil Application No.5894 of 1990 does not survive.

Ordered accordingly.