SAHEBRAO TUKARAM TAPKIR Vs. BABAN MARUTI TAPKIR

JUDGEMENT

(1.) Rule. Rule made returnable forthwith by consent of the parties. The appeal was placed for admission, however, in view of the facts and circumstances, it was agreed that the appeal should be heard finally at the stage of admission and accordingly the appeal was heard finally after the receipt of record and proceedings and filing of compilation of relevant documents on record.

(2.) The appellants have preferred this appeal against the judgment and order passed by the 5th Ad-hoc Addl. District Judges Pune, dated 21-10-2003 allowing the appeal and setting aside the judgment and order passed by the Civil Judge; S. D. , Pune, in Civil Suit no. 1983 of 1994 who had dismissed the suit. The lower appellate Court decreed the suit for partition determining the shares of the parties with directions for consequential reliefs.

(3.) The facts involved in the dispute, in a nut-shell, are thus - in all 24 agricultural lands located at baner, Tal. Haveli are involved in this suit. The original ancestor of the parties was one Mr. Bhiku Khandu who died on 06-02-1928 leaving behind 3 sons, namely, Nama, Tukaram and maruti. The present plaintiffs are descendants of Nama and Maroti who have sued the legal heirs of Tukaram. The plaintiffs have claimed that they are the members of joint Hindu family alongwith the defendants. There was huge property belonging to their joint family at Village mulkhed, Tal. Mulshi, and it was cultivated by all of them. Therefore the plaintiffs and defendants were taking income out of these lands. During the life time of Nama, Tukaram and Maruti, the suit lands were purchased out of joint family funds, but for the convenience of the family, Nama and Maruti were shown as Karta of the joint family for the lands at mulkhed, while the lands at Baner were entered in the name of Tukaram. Thus, Tukaram was cultivating the suit lands of the joint family and the income was shared by all. Therefore, all the parties to the suit are alleged to have right and interest in the properties located at Baner which are the suit properties. In the year 1982, defendant No. 5 Nathu filed one Civil Suit No. 1382 of 1982 in the Civil court at Pune for partition and separate possession of the agricultural lands and house properties belonging to the joint family situated at Mulkhed. However, in that suit, the agricultural lands at Baner i. e. present suit properties were not included for partition. Thus, the suit properties allegedly remained as joint family properties. The Civil Suit No. l382 of, 1982 was decreed on 28-08-1986. The present plaintiff Nos. 1 to 5 preferred Civil Appeal no. 1386 of 1986 against that judgment and decree in the District Court. During the pendency of that appeal, they also filed an application in the appellate Court dated 10-04- 1992 for amendment of the written statement and sought to include the properties at Baner in that proceeding. However, that application was rejected. Against that order, the appeal is said to be pending in the High Court. In the year 1992, present defendant Nos. 6 to 10 started disposing of the properties at Baner and hence the plaintiffs demanded partition and separate possession of their share in these lands from the defendant Nos. 6 to 10. However, they avoided to give any share to the plaintiffs in the suit. Hence, the plaintiffs have alleged to have constrained to file the suit for partition, possession and perpetual injunction.