DAMODAR JIVAN MHATRE Vs. BEBIBAI BABURAO MHATRE

JUDGEMENT

(1.) This Second Appeal arises from the decree of partition passed by the learned Civil Judge, Junior Division at Palghar on 3-1-1989 in Regular Civil Suit No. 4 of 1986 and duly confirmed by the 4th additional District Judge at Thane in Civil Appeal No. 61 of 1989 which was dismissed vide judgment and order dated 23-1-1991. While admitting this appeal on 26-8-1991 this Court framed the substantial question of law for consideration in the following words : "there involves a substantial question relating to the procedural error in not framing the points for determination by the lower Appellate Court. "

(2.) It is seen from the judgment and order of the lower Appellate Court that it had framed the following issue and answered in the negative : "is there any necessity to interfere with the judgment and decree passed by the lower Court - it is also pertinent to note that in the memo of this second appeal the appellant has not framed any substantial question of law for the consideration of this Court though the grounds of objection to the decision appealed against are set out. In the case of Girijanandini Devi vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 a three-Judge Bench observed in para 12 as under :"the trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle bidya Narain and with that view the High Court agree. It is true that the high Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the trial Court in support of its conclusion. We are unable to hold that the learned Judges of the high Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. "

(3.) The present respondent Nos. 1 to 4 - plaintiffs instituted Regular Civil suit No. 4 of 1986 for partition of the joint suit property by impleading the present appellant-Damodar as defendant No. 1 and the respondent No. 2- nathuram as defendant No. 2. It was contended that Shri Jivan, son of Shinwar mhatre had purchased the suit agricultural land on 23-7-1949 from Shri padmanath Ganpat Raut for the consideration of Rs. 499/- and mutation was effected pursuant to the sale transaction in favour of Jivan by Entry No. 1522 dated 20-8-1949. Jivan had three sons viz. Baburao (the husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 4) , Nathuram (defendant No. 2) and Damodar (defendant No. 1). Jivan died on 31-8-1954 when the defendant No. 1 was a minor and on Jivan's demise the suit property was entered in the names of all his three sons as the joint owners by Mutation Entry No. 2021 dated 16-3-1955 as per the application made by Baburao, the eldest son of Jivan and Baburao became the Karta of the family. However, Baburao died on 7-6-1983 and in his place the names of all the plaintiffs were entered into the record of rights vide mutation entry No. 7748 dated 11-7-1983. As per the plaintiffs on the demise of baburao the defendant No. 1 took possession of the suit land and refused to give the share from the produce of the said land. It was alleged that the defendant no. 1 took the plea that the plaintiffs had no concern with the suit land and consequently the plaintiffs issued a legal notice on 1-12-1985 to the defendant no. 1 with a copy to defendant No. 2. The defendant No. 1 replied the said notice through his Advocate on 9-12-1985 and contended that there was a partition of the entire joint family property during the life time of Baburao and the suit property had gone to the exclusive share of defendant No. 1. The plaintiffs in addition to the claim of l/3rd share in the suit property had also prayed for mesne profits at Rs. 2000/- which claim came to be turned down by both the Courts below but the decree of partition confirming the l/3rd share of the plaintiffs has been confirmed by the lower Appellate Court as noted hereinabove.