DATTATRAYA LAXMAN PATIL Vs. NARHARI

JUDGEMENT

(1.) APPELLANTS, who are Original Paintiffs have filed present First Appeal against the judgment and decree passed by the Joint civil Judge, Senior Division, Kolhapur, dismissing the Special Civil Suit no. 18 of 1974, for partition and possession of the suit property.

(2.) THE undisputed position, in the present case can be stated thus : -One Ranoji Appaji was the common anestor of the Plaintiffs and defendants. He had two sons, Tukuram and Laxaman. Defendant no. 1 Narhari alia Jaywant Patil and Defendant No. 2 abasaheb Patil are the sons of Tukaram. Tukaram incidently is elder son of Ranoji. Dattatrya Paul, Plaintiff No 1, Shankar rao patil, Plaintiff No 2 and Rasaram Patil, Plaintiff No. 3. are the sons of Laxman. The family or fathar Ranoji had in his possession, certain joint family property which was in the nature of 'rayatawa' as well as certain inam lands consisting of 'huzur sanadi' 'patil watan' and 'goon sanadi Inam'. These lands were in the family for more than hundred years. After the death of ranoji, it appears that on account of disput s between the parties, the whole of the property belonging to this family was taken in the custody of the Court of Wards of the then state of Kolhapur. It further appears that while the property in the custody of the Court of Wards, the parties agreed to affect a partition, in respect of the joint family property A cordingly, Defendant No 1 Narhari Patil executed a Deed of petition, in favour of Plaintiff on 15 th may, 1939, which is at Exhibit 70 in tut sun. By this Deed, defendant No. 1 admitted the share of the Plaintiff's branch and authorised them to take possession of the said property from the custocy of the Court of Wards Simultaneously, on the same day. plaintiffs executed a Partition Deed exhibit 72, in favour of Defendant No. 1; admitting the share of defendant No 1 and authorising him to take possession of the said share, from the custody of the Court or Wards. So far as the inam property is concerned there is no dispute that under the then law existing in Kolhapur State, in the form of 'vat Hukums', it was to continue with the eldest member of the eldest branch in the family in accordance with the rule of primogeniture. Therefore, the inam property, continued in the name of Defendant No. 1. After merger of the State of Kolhapur, all the laws in force in the then state of Bombay, were extended and accordingly in pursuance of further legislation. effecting the abolition of various inams, by about the year 1962, ail the three inams namely, Huzur sanadi, patil watan and gaon sanadi main, came to be abolished. The inam lands under the respective legislations were allowed to be covered into ''rayatawa'' on payment of certain nazrana. Accordingly, defendant No. 1 got the Inam lands converted into 'rayatawa' and started us enjoyment as lands. It is, in these circumstances, that the Appellants-Original Plantiffs filed special Civil Suit No. 18 of 1974, tor partition and separate portion of their share, in the erstwhile in m lands, on the allegation that these lands were not included in the 1939 portition, because, they were not subject to partition in accordance with the law then existing According to Plaintiffs, since they were impartible and governed by the rule of promogeniture, they were continued with defendant No 1 but, after the abolition of Inams, they have become 'rayutawa' and as such liable to partition. Contention of plaintiff was that these lands were ancestral lands that had remained to be partitioned in the 1939 partition, because of the then legal provision that existed but, in view of the changed in the legal provision, they have now, become liable to partition.

(3.) RESPONDT nts, contended that in the 1939 partition, the Inam property was taken into consideration and it was put to the share of Defendant No 1, and in lieu thereof, the Plaintiffs were given, more lands from the 'rayatawa' property It was their contention, that therefore, in the 1939 partition, the inam property was also taken into consideration and Plaintiffs have clearly relinquished their rights in the Inam property by recording to that effect in the partition Deed, executed by them.