GAJANAN DHUNDIRAJ DESHPANDE Vs. SHRIDHAR MORESHWAR DESHPANDE

JUDGEMENT

(1.) THESE two second appeals are filed by the original plaintiff against the dismissal of his two suits by both the lower Courts. The few facts which it is necessary to state for appreciating the points involved, in these appeals are as follows: -

(2.) MORESHWAR and Gajanan were brothers and they were co -sharers in two villages of Nandora and Tuljapur. It appears that on May 14, 1930, there was a partition between these two brothers with respect to the home -farm lands in possession of their family, but the proprietorship in respect of these two villages was not partitioned. Moreshwar, the elder brother, acted as the lambardar in both these villages. In 1931 pre -emption proceedings were started by Moreshwar with regard to field No. 17 of Nandora. These proceedings lasted for five years from 1931 to 1936, and ultimately in January 1936, field No. 17 was acquired by Moreshwar as a result of these proceedings. In 1937 a portion of two acres out of field No. 34/1 situated in mouza Tuljapur was acquired by Moreshwar in ejectment proceedings against one Wajirkhan. This Wajirkhan held at mouza Tuljapur three fields, namely, Nos. 34/1, 36/1 and 52. Field No. 34/1 consisted originally of 12.60 acres, but as I have already stated, two acres out of it were obtained by Moreshwar in ejectment proceedings against Wajirkhan. Subsequently, by two surrender deeds dated April 16, 1937, and November 12, 1937, Moreshwar acquired the remaining land in field No. 34/1, with the result that field No. 34/1 came to be recorded as 34/1 and 34/8. These two fields were known as khari lands. Field No. 16/2 at mouza Nandora was acquired by Moreshwar in ejectment proceedings on October 14, 1938, from its tenant Balaji. Then on November 27, 1940, under a surrender deed Moreshwar acquired the Bhivesni lands, namely, fields Nos. 36/1 and 52 situated at mouza Tuljapur. As I have already stated, the lands at mouza Tuljapur originally were owned by 'Wajirkhan, and despite the fact that Moreshwar acquired all his lands under separate proceedings, there were disputes between Moreshwar and Wajirkhan resulting in proceedings under Section 145 of the Code of Criminal Procedure. But these disputes were regarding khari lands only, that is to say, fields Nos. 34/1 and 34/8 only and they ended in favour of Moreshwar on September 6, 1938. So far, therefore, as the chapter of acquisition of lands by Moreshwar as lambardar was concerned, that chapter closed in 1940. Moreshwar had two sons, Waman and Shridhar, and it appears that Shridhar attained majority sometime before 1942 and he filed a suit for partition against Moreshwar and Waman, being Civil Suit No. 17 -A of 1942. Gajanan, the separated uncle, was, it appears, helping Shridhar in this suit and that suit resulted in a compromise. The result of that compromise was that fields Nos. 16/2 and 17 of the village of Nandora were allotted to Waman, while fields Nos. 34/1, 34/8, 36/1 and 52 of mouza Tuljapur were allotted to Shridhar. Moreshwar seems to have died on December 27, 1943, and the fields which had been allotted to Waman and Shridhar in the partition suit came to be respectively entered into their names in the records of the two villages. Nothing happened thereafter till 1952 when Gajanan, the present appellant -plaintiff, filed the two suits, being Civil Suits Nos. 62 -A of 1952 and 63 -A of 1952. Suit No. 62 -A was filed by him against Waman claiming partition and separate possession of half share in fields Nos. 16/2 and 17 of mouza Nandora, and suit No. 63 -A was filed by him against Shridhar for partition and separate possession of his half share in fields Nos. 34/1, 34/8, 36/1 and 52 situated at mouza Tuljapur. It is out of these suits that the present two appeals have arisen. Second Appeal No. 50 of 1955 having arisen out of original civil suit No. 62 -A of 1952 and Second Appeal No. 49 of 1955 having arisen out of civil suit No. 63 -A of 1952. As these two appeals raise common questions, this judgment will govern both of them.

(3.) A point of law was also raised by the defendants and that point was that as a result of the Madhya Pradesh Abolition of Proprietary Eights (Estates, Mahals, Alienated Lands) Act, 1950 (I of 1951), hereinafter referred to as the Abolition of Proprietary Rights Act, the proprietorship in the two villages had ceased, and as the plaintiff had ceased to be a proprietor, he could not file a suit for partition and separate possession of these fields.