901-SA-240-2001.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 240 OF 2001

1. Shri Sadashiv Laxman Shelar ]

since deceased through heirs and ]

Legal representatives, ]

1A) Shri Kisan Sadashiv Shelar, ]

1B) Shri Santosh Sadashiv Shelar, ]

Nos.1A and 1B resident of Naragaon. ]

1C) Smt. Lila Krushna Pote, ]

C/o. Tushar Krushna Pote, ]

Khardanda, 05/11 Amangul Pathan Chawl, ]

Mumbai. ]

1D) Sau. Shobha Sadashiv Sonvane, ]

Residing at & post Ahire, Taluka Satara, ]

District – Satara, Pine Code 412 802. ]

1E) Sau. Janaki Namdeo Sonvane, ]

R/at – Swagat Co-op Housing Society, ]

Building No. 52/1, Scheme No. -11, ]

Yamunanagar – Triveninagar Chowk, ]

Sector – 21, Yamunanagar, Nigadi ]

Pune 411 044. ]

1F) Pramila Tulshidas Adsul, ]

At & Post Rishe, Taluka Purandar, ]

District – Pune. ] … Appellants

V/s.

1. Shri Maruti Laxman Shelar ]

Agriculturist. ]

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varsha

VARSHA

VIJAY

RAJGURU

Digitally

signed by

VARSHA

VIJAY

RAJGURU

Date:

2026.07.02

17:06:28

+0530

                                                                                901-SA-240-2001.doc

2. Shri Namdeo Laxman Shelar ]

since deceased through ]

heirs and legal representative ]

2A) Shri Tukaram Namdeo Shelar, ]

Occupation: Agriculturist. ]

2B) Shri Dattatraya Namdeo Shelar, ]

Occupation: Agriculturist. ]

2C) Smt. Gangubai Namdeo Shelar, ]

2D) Sau. Ashabai Dattatraya Sonawane ]

Resident of Sonwadi, Taluka Daund, ]

District- Pune. ]

2E) Sau. Malan Vasant Shinde ]

Residing at Alegaon Page, Taluka ]

Shirur, District Pune. ]

3. Shri Khandu Laxman Shelar ]

Agriculturist. ]

4. Shri Mahadu Laxman Shelar(since ]

deceased through legal heirs and ]

legal representatives: ]

4A) Smt. Yashodabai Mahadev Shelar, ]

4B) Ramesh Mahadev Shelar, ]

Occupation: Agriculturist. ]

4C) Mrs Rukmini Vasant Suryavanshi, ]

4D) Popat Mahadev Shelar, ]

Occupation: Agriculturist. ]

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All are residing at and Village ]

Nagargaon, Taluka: Shirur, ]

District: Pune. ]..Respondents

Mr. U.B. Nighot for the Appellant.

Mr. Rahul Soman a/w. Mr. Shivraj R. Patil i/b. Mr. Aditya Shirke

for Respondent No.1.

Mr. Y.S. Bhate for Respondent Nos. 4A to 4D.

CORAM : GAURI GODSE, J.

RESERVED ON : 2

nd

APRIL 2026

PRONOUNCED ON : 2

nd

JULY 2026

JUDGMENT :-

1. The appellant is the original defendant no.1. Respondent no.1

is the original plaintiff and respondent nos. 2 to 4 are the original

defendant nos. 2 to 4. The suit filed by respondent no.1 for partition

and separate possession is decreed by the trial court, granting 1/5

th

share to the plaintiff. In the appeal preferred by defendant no.1, the

trial court’s decree is confirmed. Hence, this second appeal

challenges the concurrent judgments and decrees granting partition

and separate possession. The second appeal is admitted on the

substantial question of law formulated in the order dated 10

th

August 2001, which reads as under:

“Heard learned counsel for the Appellant.

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Admit on the following question of law:

In the facts and circumstances of the case, whether

the civil court

had a jurisdiction to determine the

question relating to the tenancy

and/or joint tenant.”

BRIEF FACTS:

2. The relationship between the parties is undisputed. One

Sahadu was the original holder of the suit property who had two

sons, Ramu and Laxman. According to defendant no. 1, a partition

took place between Ramu and his brother Laxman prior to 1953.

The plaintiff is one of Laxman’s sons. Defendant nos. 2 to 4 are the

other sons of Laxman. According to the plaintiff, Laxman died in

1961. The suit properties were given to Laxman’s share in the

partition between Ramu and Laxman. Hence, according to the

plaintiff, he had a 1/5

th

share in the suit properties being the son of

Laxman.

3. The appellants are heirs of defendant no. 1, who opposed the

suit claim on the ground that the suit property was partitioned in

1972, except land Gat No. 354. He contended that the Gat No. 354

was not the joint family property and that after the death of

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Laxman, the name of defendant no. 1 was entered as Karta of the

joint family in respect of the properties except Gat No. 354.

According to defendant no.1, Gat No. 354 was owned by one

Kondabai and Krishna Shelar, and his uncle Rama Shelar, i.e.

brother of his father Laxman, was the tenant in respect of the said

Gat number. With the consent of his uncle, the name of defendant

no. 1 was entered as a protected tenant as he was cultivating the

same. He therefore claimed exclusive ownership over Gat No. 354

and opposed partition in respect of the said property. Defendant

nos. 2 to 4 appeared; however, the suit proceeded without their

written statement.

4. The trial court held that all the suit properties were the joint

family properties and the theory of partition pleaded by defendant

no.1 was not proved. Defendant no. 1’s claim of exclusive

ownership over Gat No. 354 was also not accepted by the trial

court. There was no dispute with respect to the other suit

properties, and the only issue to be decided was whether Gat No.

354 was joint family property and whether the parties were entitled

to partition. The trial court held that all suit properties, including Gat

No. 354, were the joint family property and the parties were co-

sharers. Accordingly, the plaintiff and the defendants were each

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entitled to a 1/5 share in the suit properties. The trial court’s decree

was confirmed by the first appellate court upon dismissal of the

appeal of defendant no. 1.

SUBMISSIONS ON BEHALF OF APPELLANTS:

5. Learned counsel for the appellants submitted that on 20

th

February 1972, the order under Section 32G of the Maharashtra

Tenancy and Agricultural Lands Act, 1948 (“Tenancy Act”) was

passed in favour of defendant no.1 on the ground that he was the

permanent tenant of Gat No. 354. Initially, the Agricultural Lands

Tribunal (“ALT”) had passed an order in favour of defendant no. 1;

however, it was reversed by the Sub-Divisional-Officer in the

appeal preferred by the landlord. However, in the revision

application filed by defendant no.1 before Maharashtra Revenue

Tribunal (“MRT”), the order passed by the ALT in favour of

defendant no.1 was confirmed.

6. Hence, in view of the orders passed by the tenancy

authorities, the order under Section 32G, fixing the purchase price

in the name of defendant no.1, stood confirmed. Hence, the

findings recorded by both the courts to hold that Gat No. 354 was

the joint family property are without jurisdiction. The findings by the

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Tenancy Authorities on the status of Gat No. 354 holding that it was

the tenanted property of defendant no.1 could not have been set

aside by the civil court by holding that it was the joint family

property. Learned counsel for the appellants submitted that

defendant no. 1’s name was entered as the karta of the joint family

in respect of the other properties, which was admittedly the joint

family property. Hence, only on the ground that defendant no.1’s

name was entered as Karta of the joint family, Gat No. 354 would

not automatically become the joint family property.

7. Learned counsel for the appellants submitted that the trial

court wrongly imposed a burden upon defendant no.1 to prove that

Gat No. 354 was his exclusive property. He submits that once the

order was passed by the Tenancy Authority holding defendant no.1

as tenant and fixing the purchase price in the name of defendant

no.1, the burden was upon the plaintiff to prove that it was the joint

family property, as the suit was filed for partition and separate

possession on the ground that it was the joint family property. He

therefore submits that issue no.1 and the decision on issue no.1 is

without jurisdiction in view of the order under Section 32G in favour

of defendant no.1. So far as issue no. 3 and its findings are

concerned, the same wrongly shifts the burden on defendant no.1.

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The orders passed in favour of defendant no.1 by the Tenancy

Authority are not properly appreciated by both the courts.

8. In view of the order passed by the Tenancy Authority holding

defendant no.1 as the protected tenant and fixing the purchase

price in his name, it is sufficient evidence to hold that the suit

property is the exclusive property of defendant no.1. Hence, the

partition granted in respect of the said Gat number, exclusively

owned by defendant no.1 would not be sustainable. The question

of law, therefore, must be decided in favour of the appellants, and

the impugned judgments and decrees be set aside. Learned

counsel for the appellants relied upon the decision in the case of

Krishnabai Babya Navale Vs. Shankar Lahu Gharat and Ors

1

,

Ramakant Ganesh Naik and Ors Vs. Anusaya Shantaram Naik and

Ors

2

and Suman Vishnu Pathak and Ors Vs. Usha w/o

Prabhakarrao Koparkar and Ors

3

.

SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1:

9. Learned counsel for respondent no. 1 ( “ plaintiff ” ) submits

that the orders passed by the ALT do not deal with whether

1 2025 DGLS(Bom.) 3333

2 2024(3) Mh.L.J. 389

3 2013(2) Mh.L.J 268

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the Gat No. 354 was of exclusive tenancy of defendant No. 1 or he

was cultivating the same on behalf of the joint family. The order

passed under Section 32G, fixing the purchase price in the name of

defendant no. 1, would not give any exclusive title to defendant no.

1. When the joint family nucleus is not disputed, the Section 32G

order in the name of Karta of the joint family would not confirm any

exclusive title in the name of Karta. Defendant no. 1 failed to plead

and prove that the purchase price was paid from his exclusive

and/or independent source of income.

10. When the orders passed by the tenancy court do not decide

the issue of exclusive tenancy, the civil court’s jurisdiction would not

be barred to hold that the Section 32G order was passed in favour

of defendant no. 1 in the capacity of Karta. The issue of whether

the property was joint family property or exclusive property falls

within the domain of the civil court and cannot be decided by the

tenancy court. Hence, the findings recorded by both the courts hold

that Gat No. 354, belonging to the joint family property, cannot be

held to be without jurisdiction. To support his submissions, learned

counsel for the respondent relied upon the decision in the case of

Shri Rajaram Bandu Gadade Vs. Shri Govind Sonba Gadade and

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Ors

4.

CONSIDERATION OF SUBMISSIONS AND ANALYSIS:

11. The relationship between the parties is undisputed. The only

controversy in the matter pertains to whether defendant no.1 can

claim exclusive ownership over Gat No. 354. Despite the orders

under the Tenancy Act, passed in the name of defendant no. 1,

fixing the purchase price under Section 32G in his name, both

courts have held that defendant no. 1 is acting as Karta of the joint

family. Hence, the order under Section 32G of the Tenancy Act

would not confirm exclusive ownership over defendant no.1. In

view of this controversy, the question of law to be decided in this

second appeal is whether the findings recorded by the civil court

relating to Gat No. 354 belonging to the joint family are without

jurisdiction.

12. There is no dispute that defendant no. 1 was acting as Karta

of the joint family, and accordingly, his name was entered in the

revenue record as Karta. Based on such a mutation entry, it is

contended by the plaintiff that the Section 32G order fixing

purchase price in his name was in the capacity as Karta of the joint

4 Second Appeal No. 147 of 2011, Judgment dated 6

th

January 2025.

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family. As against this mutation entry, defendant no.1 relied upon

the record of right entering his name as ordinary tenant in respect

of Gat No. 354. The plaintiff has relied upon the 7/12 extract

produced at Exhibit 42, which records that the father of the plaintiff

and the defendant, i.e., Laxman, were cultivating Gat No. 354.

Hence, in view of the name of defendant no.1, entered as Karta of

the joint family in respect of other joint family properties, both the

courts concurrently held that Gat No. 354 belongs to the joint

family.

13. The legal principles governing the civil court’s jurisdiction to

decide whether the tenancy was in an individual capacity or in

respect of land belonging to the joint family are well established. By

referring to the well settled legal principles this court in the case of

Rajaram Bandu Gadade, held that the controversy regarding

existence of the joint family and whether the certificate issued

under Section 32M of the Tenancy Act was issued on behalf of the

joint family or in individual capacity cannot be decided by the

tenancy court as it would be exclusive province of the civil court to

decide the said controversy. Hence, this court held that the orders

passed by the tenancy authority can be dealt with by the civil court

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to decide whether the orders are passed on the ground that it was

the tenancy of a Hindu joint family or exclusive ownership, as such

an issue would be within the exclusive domain of the civil court. A

similar view is taken by this court in Ramakant Ganesh Naik,

holding that when the tenancy court had not conducted any inquiry

and had no occasion to decide the claim of members of the joint

family, the civil court’s jurisdiction would not be ousted. In the

present case, the issue of whether defendant no. 1 was the

exclusive owner or was acting as the karta of the joint family, and

whether Gat No. 354 was exclusively owned by defendant no. 1, is

not within the jurisdictional scope of the Tenancy Authorities/Court.

No claim of exclusive tenancy or joint tenancy of the members of

the joint family is decided by the Tenancy Authorities/Court. Hence,

in the present case, the civil court has not dealt with any issue

which falls within the exclusive jurisdiction under the Tenancy Act,

that oust the civil court’s jurisdiction.

14. In the decision of Krishnabai Babya Navale, relied upon by

the learned counsel for the appellants, the view taken by this court

is on the facts of the said case. However, this court held that the

legal principles settled in Ramakant Ganesh Naik are not ipso facto

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applicable to all cases where the tenanted property is in the name

of a family member, contending that it was his individual right.

Thus, it is held that until and unless the evidence on record justifies

that the property belongs to the joint family, the legal principles

settled in the decision of Ramakant Ganesh Naik will not ipso facto

apply to all cases.

15. Therefore, the question whether a land belongs to the joint

family or to an individual member falls within the exclusive domain

of the civil court. Only the issues of tenancy to be dealt with and

decided by the Tenancy Authorities/Court under the Tenancy Act

would be beyond the civil court’s jurisdiction. In the facts of the

present case, no issue decided by the civil court falls within the

exclusive jurisdiction of the Tenancy Authorities/Courts under the

Tenancy Act.

16. In the decision of Suman Pathak, relied upon by the learned

counsel for the appellant, this court held that when a property

stands in the name of an individual member, the burden rests on

the party asserting it to be of joint family to prove it. In the present

case, there is no dispute that a joint family and its nucleus existed.

There is no dispute that defendant no. 1 was acting as Karta of the

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joint family, and his name was entered as Karta after his father's

death. Revenue record is produced by the plaintiff to show that Gat

No. 354 was cultivated by the family and the name of their father

was entered in the cultivation column. Nothing is produced by the

defendant no. 1 to prove that he had any individual income source.

Hence, the legal principles settled in Suman Pathak would not

assist the arguments raised on behalf of the appellant. Only on the

ground that an order under Section 32G is passed in favour of the

defendant no. 1, it would not confer any exclusive title in his favour.

17. Based on the evidence on record, both the courts

concurrently held that defendant no. 1 was acting as Karta of the

joint family. Hence, the order passed under Section 32G is on

behalf of the joint family. Defendant no.1 has not proved that the

purchase price was paid from his independent source of income.

Hence, the concurrent findings of fact recorded cannot be

interfered with in this second appeal.

18. The question of law framed at the time of admission of the

second appeal is of the civil court’s jurisdiction to determine the

question relating to the tenancy or the joint tenancy. In the present

case, the issue of tenancy is not decided by the civil court.

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However, based on the admitted facts, the existence of the joint

family and the defendant no.1 acting as Karta of the joint family,

both the courts have concurrently held that the order passed under

Section 32G in the name of defendant no.1 was on behalf of the

joint family. Hence, by recording the findings of fact that Gat No.

354 belongs to the joint family, both the courts have granted a

decree for partition and separate possession. The findings

recorded by both the courts are governed by the view taken by this

court on the issue of civil court’s jurisdiction as discussed in the

above paragraphs. Hence, in view of the well-settled legal

principles, the impugned judgments and decrees would not require

any interference in this second appeal.

19. The question of law is accordingly answered by holding that in

the facts and circumstances of this case, the civil court had the

jurisdiction to determine the question whether the land belonged to

the joint family and therefore the Section 32G order in the name of

defendant no. 1 is on behalf of the joint family.

20. The second appeal is therefore dismissed.

(GAURI GODSE, J.).

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