SHIVDAS DEOCHAND PATIL Vs. RAMRAO DEVCHAND PATIL

JUDGEMENT

(1.) BOTH these appeals are companion appeals filed against the judgment and decree passed by the District Judge, Dhule, dated 7.8.1986 in the Civil Appeal No.47 of 1983 preferred against the judgment and decree dated 5.11.1982 passed by the Civil Judge, Junior Division, Nandurbar in Regular Civil Suit No. 128 of 1980. Hence, both these appeals can be disposed of by a common judgment.

(2.) PLAINTIFF in this case filed the aforesaid suit before the civil Judge, Junior Division, Nandurbar for reopening of the partition, which was effected on 4th December 1972. It is the case of the plaintiff that there was a partition in the Joint Hindu Family consisting of Plaintiff himself and his three brothers Ramrao (Defendant No.1), Ratan (Defendant No.2) and Baliram (Defendant No.3) on the 4th of December 1972 and as per the aforesaid partition of the joint Hindu family property, lands were partitioned and each was allotted his share in the Hindu Joint Family property. As per the said partition effected on 4th December 1972, Plaintiff was allotted two lands i.e. land bearing Gat No. 86 admeasuring 7 Acres - 35 Gunthas and land bearing Gat No.83 admeasuring 11 Acres - 20 Gunthas. Plaintiff further contended that after the said partition, Additional Tahsildar started proceedings under section 36(3) of the Maharashtra Land Revenue Code, 1966 and in the said proceedings, lands allotted to the share of plaintiff viz. land bearing Gat No.86 and Gat No.83 were taken in possession and were given back to Adivasi i.e. Defendant No.8, from whom the said lands had been purchased. Admittedly, the aforesaid two lands allotted to the share of the plaintiff in the partition dated 4.12.1972 were purchased by plaintiff from Defendant No.8 for Rs.3000.00 under sale deeds dated 6.4.1962 and 13.11.1967 as Karta of the Joint Hindu Family property. As the aforesaid two lands were taken back in the proceedings under section 36(3) of the Maharashtra Land Revenue Code, 1966, plaintiff filed a suit being Regular Civil Suit No.128 of 1980 against the defendants for reopening of the partition effected on 4.12.1972. It was contended on behalf of Defendant No.1 in the suit that once the partition is effected, under the Hindu law, each member of the family becomes owner in respect of his property allotted to him and the same cannot be reopened except in exceptional circumstances. In the facts and circumstances of the present case, according to Defendant No.1, there are no exceptional circumstances on the basis of which partition can be reopened. The trial Court, by its judgment and decree dated 5th November 1982 decreed the suit and as a result thereof, plaintiff, defendants 1 and 2 and defendants 3 to 6 were allotted 1/4th share each in the lands mentioned in Schedule 'C' to the plaint and accordingly directed partition of the suit land. Against the aforesaid judgment and decree, the defendants Nos. 1 to 6 preferred an appeal being Civil Appeal No. 47 of 1983 and the lower appellate Court partly allowed the appeal by setting aside the order of reopening of the partition and further ordering readjustment of the shares of the plaintiff and defendants to the extent of the value of land bearing Gat Nos. 83 and 86. Against the aforesaid judgment and decree dated 7th August 1986 passed by the District Judge, Dhule, Defendant No.1 preferred an appeal, which is Second Appeal No. 397 of 1987, while against the same judgment and decree, plaintiff preferred an appeal to this Court, being Second Appeal No. 237 of 1987. Since the aforesaid two companion second appeals are preferred against the same judgment and decree passed by the lower appellate Court, I am disposing of both these second appeals by this common judgment

(3.) ON the basis of these admitted facts on record, Mr. Desai, learned counsel appearing on behalf of the plaintiff, contended that the lands in question allotted to the share of the plaintiff were taken away under the proceedings under Section 36 of the Maharashtra Land Revenue Code, 1966 on 18th November 1976. Relying on the provisions of section 36, sub-section (3) of the Maharashtra Land Revenue Code, 1966, Mr. Desai contended that by a legal fiction, the sale of the lands bearing Gat Nos.86 and 83 under the sale deeds dated 6.4.1962 and 13.11.1967 became ineffective retrospectively. Therefore, by the aforesaid legal fiction, lands belonging to the Joint Hindu Family were taken away from the ownership of the Joint Hindu Family on the date of the sale deeds and, therefore, by the legal fiction, the said lands, though included in the partition by the said deeming fiction under section 36, clause (3), did not belong to the Joint Hindu Family from the date of purchase itself. On the other hand, family partition was effected between plaintiff, defendants Nos. 1, 2 and 3 on 4th December 1972 on the basis that the lands bearing Gat Nos. 86 and 83 belonged to the Hindu Joint Family property and the said lands were allotted to the share of plaintiff. In view of this, plaintiff's case comes within the ambit of properties of reopening of the partition under the Hindu Law. Under Hindu law, partition once effected cannot be reopened unless the same was effected by fraud, coercion, misrepresentation or mistake. According to Mr. Desai, partition effected on 4th December 1972 was under mistaken notion that lands bearing Gat Nos. 86 and 83 belonged to Joint Hindu Family, which according to legal fiction, as mentioned aforesaid, do not belong to Hindu Joint Family. therefore, Mr. Desai contended that the lower appellate Court erred in setting aside the order of the trial Court.