1. The present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant herein – original plaintiff to quash and set aside the judgement and decree dated 31/03/2010 passed by learned Principal Senior Civil Judge, Ankleshwar in Special Civil Suit No.55 of 2005 as well as impugned judgement and order dated 10/04/2012 passed by learned Additional District Judge, Bharuch in Regular Civil Appeal No.22 of 2010, by which, learned Trial Court has dismissed the said suit preferred by the appellant herein – original plaintiff, which has been confirmed by learned Appellate Court.
2. Appellant herein – original plaintiff instituted Special Civil Suit No.55 of 2005 against the respondents herein – original defendants in the Court of learned Principal Senior Civil Judge, Ankleshwar for partition of the suit property as well as for recovery of the possession.
3. It was the case on behalf of the original plaintiff that as such there was no partition of the property and in fact the original defendants took more land/property than that of the original plaintiff and, therefore, alleged partition was unequal. The said suit was resisted by the original defendants by filing written statement submitting that as such there was already partition between the parties, which was reflected in the revenue record in the year 1967 and respective parties were put into possession of their respective lands, which went into their shares and the said partition was acted upon and, therefore, it was submitted that even the suit for partition was barred by limitation. Both the parties led the evidence documentary as well as oral and on appreciation of evidence, learned Trial Court held that the suit is barred by limitation as well as held that there is already partition between the parties, which was acted upon and the same is reflected in the revenue record in the year 1967. Therefore, consequently learned Trial Court dismissed the said suit vide judgment and decree dated 31/03/2010.
Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court dismissing the suit, the appellant herein – original plaintiff preferred Regular Civil Appeal No.22 of 2010 and learned Additional District Judge, Bharuch by impugned judgement and order dated 10/04/2012 confirmed the judgement and decree passed by learned Trial Court dismissing the suit.
Being aggrieved by and dissatisfied with the impugned judgement and orders passed by both the Courts below in dismissing the suit, the appellant herein – original plaintiff has preferred the present second appeal under Section 100 of the Code of Civil Procedure.
4. Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein – original plaintiff has vehemently submitted that both the Courts below have materially erred in holding that there was partition between the parties in the year 1967 solely relying upon mutation entry in the revenue record. It is submitted by Mr.Majmudar, learned advocate appearing on behalf of the appellant herein that merely on the basis of the mutation entry in the revenue record made in the year 1967, the partition could not have been presumed and rights of the plaintiff could not be said to have been extinguished. It is further submitted that even if it is considered that there was partition still the same was not registered and, therefore, the same could not have been considered by both the Courts below. It is further submitted by Mr.Majmudar, learned advocate appearing on behalf of the appellant herein – original plaintiff that even learned Trial Court has materially erred in holding that the suit is barred by limitation. It is submitted that learned Trial Court ought to have considered the period of limitation i.e. starting point of limitation from the date of issuance of notice by the original plaintiff requesting for the partition and the same was replied and denied by the original defendants.
It is further submitted by Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein - original plaintiff that both the Courts below have materially erred in not appreciating the fact that the properties in question were not distributed equally amongst co-parceners in the year 1967.
Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein has relied upon decision of the Hon'ble Supreme Court in the case of State of Gujarat V/s. Narges K. Panthaky reported in 1996(1) SCC 298 by submitting that as held by Hon'ble Supreme Court if the document with respect to transfer/partition is not registered, the same cannot be relied upon and owner is not divested of right, title and interest in the land.
By making above submissions and relying upon above decision, it is requested to allow the present second appeal.
5. Having heard Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein – original plaintiff at length and considering the impugned judgement and orders passed by both the Courts below, it appears from the impugned judgement and orders passed by both the Courts below that there was oral partition between the parties and respective lands were given to the respective parties on partition and not only the same was mutated in the revenue record in the year 1967, even the respective parties were put into possession of their respective lands, which went to their respective shares. Thus, the partition, which was mutated in the revenue record in the year 1967 came to be implemented by the parties. That thereafter, after a period of 38 years, the original plaintiff has instituted suit for partition by making a grievance with respect to the unequal distribution/partition, which was mentioned in the revenue record and submitted that some more lands were given to the defendants. However, it is required to be noted that since year 1967 till filing of the suit/ serving notice in the year 2003, plaintiff had not challenged the partition, which was reflected in the revenue record. As stated hereinabove, respective parties acted upon the partition and nobody challenged partition, which had taken place in the year 1967. Under the circumstances, when the plaintiff asked for partition of the properties, (for which it was already partitioned) after a period of 38 years and when the same is held to be barred by limitation, it cannot be said that both the Courts below have committed any error in holding that the suit is barred by limitation. It is required to be noted that at this stage that even mutation entry in the revenue record reflecting the partition and entering the names of the respective parties, was never challenged by the original plaintiff till filing of the suit. Considering the above facts, when the learned Trial Court has dismissed the suit on the ground that suit is barred by limitation, which has been confirmed by learned Appellate Court, the same are not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
It is also required to be noted at this stage that on appreciation of evidence, learned Trial Court has specifically held that there was no unequal distribution of the suit properties amongst co-parceners. The said finding given by learned Trial Court is on appreciation of evidence and considering the fact that some lands, which had gone to the share of the defendants, the proceedings under the Bombay Tenancy Act were initiated and the same had gone to the tenants.
6. So far as contention on behalf of the appellant herein that there was no registered document at the time of alleged partition, which took place in the year 1967 and, therefore, the same could not have been accepted by both the Courts below is concerned, the same has no substance. It is not disputed by Mr.S.P.Majmudar, learned advocate appearing on behalf of the appellant herein that there can be oral partition/ family arrangement, which is not required to be registered. Under the circumstances, decision of the Hon'ble Supreme Court in the case of Narges K. Panthaky (supra) will not be applicable to the facts of the present case. Even on facts also, the said decision would not be applicable. In the case before Hon'ble Supreme Court, Hon'ble Supreme Court considered section 8(1) of the Gujarat Agricultural Land Ceiling Act. It appears that with a view to defeat the Gujarat Agricultural Land Ceiling Act, land owner for the first time came out with the new case that the property was transferred in favour of his mother and for which mutation entry was made in the year 1971. While considering the so called alleged transfer and section 8(1) of the Gujarat Agricultural Lands Ceiling Act and it was found that transfer was after Gujarat Agricultural Lands Ceiling Act came into force and it was to defeat the provisions of the Gujarat Agricultural Land Ceiling Act, the Hon'ble Supreme Court held that in absence of any registered document, such a transfer cannot be accepted. Under the circumstances, on the facts of the present case, the said decision would not be applicable to the facts of the present case.
7. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal, which deserves to be dismissed and is accordingly dismissed.
8. In view of the dismissal of the main Second Appeal, Civil Application No.6559 of 2012 also deserves to be dismissed and is also accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti