VITTAL BHAGUJI ARINGALE Vs. RAMDAS KHANDU ARINGALE

JUDGEMENT

(1.) THIS appeal by the Defendants is against the decree for partition of the property claimed by the Plaintiffs as joint family property. The learned Civil Judge, Senior Division, Nasik. in special Civil Suit No. 163 of 1972 made the decree for partition. The appellants contend that the two properties bearing Survey Nos. 22/a-1 and 22/a2 which are listed at Sr. No. 3 in paragraph 1 (B) of the plaint are self-acquired properties of the Defendants and cannot be partitioned.

(2.) ONE Bhagoji was the ancestor of the parties. He owned lands set out in Paragraph 1 of the plaint which included Survey Nos. 173/1-A and 173/1-B. Bhagoji who died on 26th May, 1946 was survived by his widow manjulabai and three sons ; viz. Khandu, Shrihari and Vithal. The Appellants represent the Branch of Khandu. According to the Respondents, survey Nos. 173/1-A and 1731-B which belonged to the joint family were acqiured in 1960-61 for a compensation of Rs. 7,000/ -. The lands bearing survey Nos. 22/a-1 and 22/a-2 were acquired by this amount and, therefore, belong to joint family. The Appellants dispute this claim.

(3.) ON the basis of the evidence and the testimony of Vithal and other witnesses, the learned trial Judge has found that Shrihari who received compensation of Rs. 7,000/, distributed it between the three brothers with the result that each became separate owner of the amount received by them. This amount together with their separate income forms the consideration for acquisition of the two lands to which this appeal relates. In paragraphs 17, 20 and 24 of his judgment, the learned trial Judge has held that Shrihari distributed the amount to each brothers and paid them 1/3rd share. The finding also is that the Defendants supplemented this amount by their own separate incomes and acquired the two lands. The decree for partition made by the learned trial Judge is inconsistent with the evidence, as also his own finding. In our opinion, the decree is erroneous, so far as survey Nos. 22/a-1 and 22/a-2 are concerned. It has not been pointed out by learned Counsel for the Respondents that the findings recorded by the learned trial Judge are not based on evidence or that they are consistent with the prohabilities of the case. We are satisfied that the findings referred to above are based on evidence. We confirm them.