SAKHAHARI PAWATRAO KARAHALE Vs. BHIMASHNKAR PARWATRAO KARALHE

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The present appeal is directed against the order passed by the High Court in second appeal, setting aside the concurrent findings recorded by both the Courts below. The plaintiff and the present appellant-defendant are the real brothers. According to the plaintiff-respondent partition took place in the year 1968 in which he got land gut No. 6, admeasuring 7 acres and 30 gunthas. Based on that, the present suit was filed against the appellant- defendant for perpetual injunction restraining the appellant from obstructing his possession of the suit land. The case of the appellant is that the suit land is a part of the joint family property and denied any partition between the members of the family. The trial Court dismissed the suit of the plaintiff-respondent holding that there was no family partition and there was no evidence oral or documentary to prove the partition. The trial Court also held that the suit land is in the possession of the plaintiff-respondent. However, it refused the injunction and dismissed the suit. In appeal, the appellate Court dismissed the appeal and confirmed the findings recorded by the trial Court. The plaintiff-respondent preferred second appeal which was allowed. The High Court held that there was no family partition but the respondent is in possession of the suit land under a family arrangement. It further held, even if the plaintiff has failed to prove the partition, he is entitled to perpetual injunction on the basis of the findings that he is in possession.

(3.) Having given our consideration to the submissions raised by the learned counsel for the parties, we find, the High Court committed error in allowing the second appeal by setting aside the concurrent findings recorded by both the Courts below. The High Court held, even in the absence of ah partition, there was family arrangement under which the plaintiff came in possession of the suit property. This finding of family arrangement is a new case taken by the High Court. Apart from partition, we do not find any pleading by the plaintiff of such a family arrangement. Not only there is no pleading, but no issues, no adjudication by any of the two Courts below. How can such a finding then be sustained In the absence of this, once a finding is recorded there was no partition between the members of the Joint family, each member of the joint family is co-sharer and possession of one is the possession for all. Even if there be exclusive possession of the plaintiff-respondent before partition it would be possession on behalf of all. Thus it cannot disentitle the defendant- appellant's claim against the suit property. In view of this it is inconceivable that injunction could be granted against another co-sharer of the joint Hindu property as has been done in the present case. Thus the findings recorded by the High Court, as aforesaid are unsustainable in law. We quash the impugned order of the High Court and confirm the findings recorded by both the Courts below. Accordingly, the present is allowed with costs.