RAMA HARIBA KHAVALE Vs. GOPIKA RAMLING SURVASE

JUDGEMENT

(1.) THE petitioner is original defendant 1 in Regular Civil Suit No. 313 of 1980. The suit came to be be filed by heirs of one Ganpati Hariba Khavale, the deceased brother of the petitioner and defendant 2 for partition and separate possession of the suit property.

(2.) THE trial Court by its judgment and order dated 26/09/1986 decreed the suit. The trial Court declared that plaintiffs 1 to 3 and defendants 1 and 2 will have one third share in the suit properties and the parties are entitled to the partition and possession of their one third share. The trial Court ordered that partition of lands be got effected by the Collector, Solapur or by the Gazetted subordinate appointed by him for this purpose.

(3.) BEING aggrieved by this judgment and decree, the petitioner carried an appeal to the Court of IV Addl. District Judge, Solapur being Civil Appeal. No. 752 of 1986. In that appeal the petitioner preferred an application. In the application he stated that prior to consolidation, Gat No. 570 was comprising Survey No. 237/1 and Survey No. 238/1. In respect of Survey No. 237/1 admeasur-ing 14 Acres 21 gunthas certificate dated 28-10-1966 was issued under Section 32m of the Bombay Tenancy and Agricultural Lands Act, ("the said Act" for short) in his favour. He purchased the land out of his own funds. The respondents have no concern with it. The respondent's case that it is purchased for the joint family from the joint family funds but the certificate was issued in petitioner's favour because he was the manager of the joint family is false. It is necessary to decide whether the plaintiff had proved that whether the joint family was the tenant or whether the petitioner was the tenant in his individual capacity. This question cannot be decided by the Civil Court. It was, therefore, necessary for the trial Court to formulate an issue in that behalf and refer it to the tenancy Court for determination. The trial Court did not do so and, therefore, its judgment is vitiated. In the circumstances it was prayed that the necessary issue be framed and it may be referred to the Tahsildar and after receipt of the report appropriate orders be passed.