SHANTILAL KALYANJI PANDYA Vs. KANCHANGAURI MAHASHANKAR KHORIDAS

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the Judgment and order rendered by the learned Single Judge of this Court in First Appeal No.734 of 1985, which arose from the Judgment and order dated 14.8.1985 of the Bombay City Civil Court in Suit No.7942 of 1968. The said suit was dismissed and the order of dismissal of the suit has been confirmed in First Appeal No.734 of 1985.

(2.) As per the appellant-plaintiff, the suit property, viz. the structure of 20 x 20 , was an ancestral property and, therefore, he was entitled for 1/2 share in the suit property and the remaining 1/2 share would go to his brother Mahashankar. He, therefore, filed the suit for a declaration that the suit property was an ancestral joint Hindu family property in which he had 1/2 share and that he had a right to worship the idol of the deity Hanuman installed in the temple standing on the said property. He also prayed for partition and separate possession of his 1/2 share in the suit property with a right to perform puja. The defendants were his brother, wife and two daughters. They had filed their written statement and opposed the suit. While admitting that the plaintiff is the brother of Mahashankar, it was contended by the defendants that the suit property was given to Mahashankar by way of gift and it was not the ancestral property. The trial Court framed in all 13 issues and issue nos 1 to 5 were required to be proved by him. The said issues read as under :-

(3.) Undoubtedly, the burden to prove these issues was on the plaintiff because he claimed that the suit property was the ancestral property and, therefore, prayed partition and possession of his 1/2 share. He could not bring any documentary evidence to support his case that it was an ancestral property. The trial Court, therefore, answered all the five issues against the plaintiff. On the contrary, the trial Court held that the defendants were successful in proving that the Hanuman deity in the suit property was the private property of Naran Saibu and thereafter it was gifted to the deceased Mahashankar. It also held that the defendants proved their status as persons entitled to share property and the plaintiff was in no way concerned with the same. The plaintiff had examined himself and in support of his case he examined two more witnesses, namely Gulabrai Pandya, PW 2, and Shantabai Virani, PW 3. On behalf of the defendants, defendant no.1 had stepped in the witness box. In addition, DW 2 Narayan Ghag and DW 3 Rukminibai Sawant were also examined as the witnesses supporting the defendants case. The learned trial court considered the oral depositions as well as the documentary evidence and recorded a finding that the plaintiff could not bring any evidence in support of his contention that the suit property was the ancestral property. The learned Single Judge considered the evidence and held that there were no documents produced on record to establish that the plaintiff is a lineal descend of the original owner of the property and unless the plaintiff had proved this issue he could not have claimed 1/2 share in the suit property on the basis that it was his ancestral property. The learned Single Judge held that there was no such document in support of the plaintiff s case and, therefore, the findings recorded by the trial Court did not call for any interference.