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PETITIONER: ANNASAHEB BAPUSAHEB PATIL & ORS. ETC. ETC.

       Vs.

RESPONDENT: BALWANT AND BALASAHEB BABUSAHEB PATIL(DEAD) BY LRS. & HEIRS

DATE OF JUDGMENT06/01/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MOHAN, S. (J) VENKATACHALA N. (J)

CITATION:  1995 AIR  895            1995 SCC  (2) 543  JT 1995 (1)   370        1995 SCALE  (1)100

ACT:

HEADNOTE:

JUDGMENT: 1.    This  batch of appeals raise common question  of  law, though the High Court of Bombay had decided several  appeals by  separate  judgments.   On this account  they  have  been tagged together and were referred to three Judge Bench.   We propose to dispose them of by common judgment.  The facts in Civil Appeal No.32/80 are sufficient to decide the  question of law.  One Bapu Anna Patil (for short B.A. Patil),  father of Anna Saheb, the first appellant/1st plaintiff and Balwant alias   Balasaheb,   the  first  defendant,   deceased   1st respondent  in  Special Civil Suit No.79/67 on the  file  of Civil Judge (Senior Division) Kolhapur, died on October  31, 1956.   Balwant  was  the eldest male member  in  the  joint family  consisting of himself and Anna Saheb.  Their  sister is Laxmibai, 4th defendant.  It is now an admitted fact that all other properties ’ except two items of the  agricultural lands bearing R.S. Nos.359 and 172/8 situated in the village Rukadi  of  a  total  extent of 15  acres  and  20  gunthas, attached  to the Patel watan, were partitioned by metes  and bounds.   The  watan properties attached to  the  office  of Patel,  by  rule of primogeniture, became  impartible.   The Maharashtra  Revenue Patels (Abolition of Office) Act,  1962 (for  short ’the Act’) came into force on January  1,  1963. The  Patel  watans, by operation of  s.3,  stood  abolished. Thereafter,  Balwant,  being eldest member  of  the  family, obtained  a re-grant under s.5 of the Act.   The  appellants filed  the  suit for partition and allotment of  half  share therein.  The trial court decreed the suit and a preliminary decree  was made for division of 15 acres and 20 gunthas  in equal  moities.  In First Appeal No. 162/69 by judgment  and decree  dated June 28, 1977, the Division Bench of the  High Court following its earlier decision in Kalgonda Babgonda v. Balgonda Kalgonda, 78 Bom.  L.R.720, allowed the appeal  and set aside the decree. 375

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The  High Court held that after the re-grant under the  Act, the properties became personal property of Balwant and  that there fore, they were not partible. 2.Section  2(e) defines ’Patel watan’ to mean the office  of patel  of  a village held hereditarily  under  the  existing watan  law, together with the tenure of watan  property,  if any,  and  the rights, privileges and  liabilities  attached thereto.  ’Existing Watan law’ defined under s.2(d) to mean, in relation to any area, includes any enactment,  Ordinance, Rule, Bye law, Regulation, order, notification, Vat-Hukum or any  instrument, or any custom or usage having the force  of law, relating to patel watans, and which is in force in that area immediately before the appointed day.  Appointed day is defined under s.2(1)(a) to mean the date of commencement  of the  Act.  ’Representative watandar’ is defined under  s.(i) to  mean  a  watandar registered  or  recognised  under  the existing watan law, as having a right to perform the  duties of the hereditary office of patel of a village.  ’Watandar’, defined  in  (k), means a person having under  the  existing watan law a hereditary interest in patel watan of a  village provided  that,  where  any  watan has  been  entered  in  a register  of record under the existing watan law as held  by the whole body of watandars, the whole of such body shall be deemed  to  be a watandar.  ’Watan land’  has  been  defined under s.2(1)(1) as the land forming part of watan  property. ’Watan property’ has been defined under s.2(1)(m)  including the  movable  and immovable property held, acquired  or  as- signed   under   the  existing  watan  law   for   providing remuneration for the performance of the duty appertaining to the  hereditary office of patel of a village,  and  includes cash  payments  made  voluntarily by  the  State  Govt.  and subject to periodical modification or withdrawal.  Section 3 abolishes  watans postulating that notwithstanding  anything in  any  usage,  custom, settlement,  grant,  agreement,  or sanad,  or  in  any decree or order of a court,  or  in  the existing watan law, with effect from the appointed day .LM15 (a)  all patel watans shall be and are hereby abolished; (b)  all   incidents   appertaining  to  the   said   watans (including  the right to hold office and watan property  and the  liability  to render service) shall be and  are  hereby extinguished; (c)  subject  to the provisions of sections 5, 6 and 9,  all watan lands shall be and are hereby resumed, and accordingly shall  be subject to the payment of land revenue  under  the provisions   of  the  relevant  Code  and  the  rules   made thereunder, as if they were  unalienated land.  The  proviso is  not  relevant  for  the purpose  of  this  case.   Hence omitted. Under   s.4,  the  Collector  is  to  decide  any   question enumerated  in  clauses (a) to (e) that  arise  between  the parties,  after giving to the affected party an  opportunity of  being heard and after holding an inquiry.  His  decision on  the  question, subject to a decision on  appeal  to  the State  Government,  shall  be  final.   Sub-s.  (1)  of  s.5 envisages  that  watan land resumed under s.3 shall,  on  an application  (in  cases not falling under ss. 6 and  9),  be regranted  to the watandar of the watan to which  it  apper- tained,  on payment by or on behalf of the watandar  to  the State Govt. of the occupancy price equal to twelve times the amount  of  the  full assessment of such  land,  within  the prescribed  period,and  in the prescribed  manner,  and  the watandar shall  376 thereupon  be an occupant within the meaning of the  Revenue

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Code in respect of such land, and shall be primarily  liable to  pay land revenue to the State Govt. in  accordance  with the  provisions of that Code.  The proviso is  not  relevant for the purpose of this case.  Hence omitted. 3.   Under sub-s.(3), the previous sanction of the Collector is  mandatory for transfer or partition by metes and  bounds of  the occupancy of the land regranted under  sub-s.(1)  of s.5.  The other provisions are not material for the  purpose of this case.  Hence omitted.  By operation of s.3 read with s.5   notwithstanding   anything  in  any   usage,   custom, settlement,  grant, agreement or sanad, or in any decree  or order of a court, or in the existing watan law, with  effect from  January  1,  1963, not only  patel  watans  have  been abolished  but also all incidents appertaining to  the  said watans including the right to hold office and watan property and the liability of the watandar to render service shall be and thereby extinguished.  Under sub-s.(1) of s.5, the lands resumed under s.3 shall be regranted to the watandar of  the watan to which it appertained, on payment by or on behalf of the  watan  to  the  State  Govt.  of  the  occupancy  price enumerated therein.  Watandar thereupon shall be an occupant for the purpose of the Code and shall be primarily liable to pay  land  revenue to the State Govt. under the  Code.   Any alienation  or  partition  of  the  occupancy  of  the  land regranted  under  s.5(1)  shall be only  with  the  previous sanction of the Collector and subject to the terms contained in sub-s.(3) of s.5. 4.   The  question,  therefore, is whether on  regrant  made under sub-s.(1) of s.5, the attached watan lands assumed the character  of  the self-acquired property  of  Balwant,  the watandar?  It is contended by Sri Lalit, the learned  Senior counsel who led the arguments in the batch of appeals of the watandars  that after the abolition of the patel  watan  and regrant made in 1965 in favour of Balwant, in consequence of the  abolition  of  the watan, and  the  burden  of  service attached   to  the  office,  the  preexisting   rights   and liabilities  appertained  to the land stood  abolished;  the regrant and the terms contained therein determine the rights of the parties.  Since it was a regret made personal to  the watandar,  the property became his  self-acquired  property. After the Hindu Succession Act, 1956 has come into force, it has become the self-acquired property in terms of the  sanad and  Balwant  was responsible to the  State  government  for payment of the land revenue.  Therefore, the property is the personal  property  of  Balwant,  Kolhapur  Dist.  bears   a distinctive  feature  of  the  watandari  rights  and  that, therefore,  it  is necessary to find the  existence  of  the watan  from the grant and not to subject it to operation  of s.3  of the Act.  B.A. Patil having died in 1956, the  right to  succession  opened,  on  his demise  under  the  law  of primogeniture.  The junior member of the family, by  custom, has  no  right to any share in the property.   The  property thereby  vested  in Balwant in the year 1956 and  his  heirs alone are entitled to succeed to the estate of Balwant.  The appellants, therefore, have no right to claim any  partition in  the property.  We find no force in the contention.   The questions  raised are no longer res integra.   Primogeniture means first born and denotes the preferential rights of  the senior  most in age to succeed to the estate,  since  senior most  in  age  is  entitled to  succeed  to  the  estate  in preference to his younger brother.  In an impartible estate 377 though the other rights which a coparcenar acquires by birth in joint family property do not exist, right by birth of the senior  member  to take by survivorship still  remains.   In

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order  to establish that a family governed by  Mitakshra  in which there is an impartible estate has ceased to be  joint, it is necessary to prove an intention express or implied, on the  part  of the junior members of the family  to  renounce their  right  of  succession  to  the  estate.   It  is  not sufficient   to  show  a  separation  merely  in  food   and residence.  The custom or special law displaces the rule  of succession by survivorship of the Hindu joint family. 5.In Dattatraya & Ors. v. Krishna Rao & Ors., 1993 supp. (1) SCC  32, a two Judge Bench of this Court to which one of  us (K.   Ramaswamy, J.) was a Member, was to consider the  rule of primogeniture extensively and held at p.39 that there are estates  which by special law or custom descend  to  senior- most member of the family, generally the eldest, to the  ex- clusion  of  the  other members and  which  are  impartible, though  they  are joint family property, in the eye  of  the law,  belonging  equally  to the other  members;  and  their rights  are  hedged  in  by  a  number  of  restrictions  or limitations.   It was further held at p.42 in para  18  that the   impartible   estate,  though  descends  by   rule   of primogeniture and survivorship on the eldest male member  of the  family, it must also be proved that the junior  members gave  up  expressly or by implication his right to  a  share therein.  An impartible estate may be created by a grant  or by  custom.   It is a creature of custom.  In  the  case  of ordinary  joint family property, the members of  the  family have  the right to partition and the right of  survivorship. The  right  to  partition  cannot  exist  in  the  case   of impartible  estate.   The  pre-existing  law  attached   the property,  movable or immovable, by grant etc. to the  watan for rendering service by the watandar.  As its  concomitance recognised  the rule of primogeniture and by its  operation, the  eldest male member in the family or the eldest  in  the first  branch  gets  the right to  watan  and  the  property attached to the watan would be enjoyed as an incidence of or consequential  to his rendering watan service.  The  statute also can abrogate the operation of the custom and succession to  watan property by rule of primogeniture and the  Act  in fact did achieve that object, abolished the office of  watan and  liabilities appertaining to it including the burden  of service  and made the lands ryotwari lands.  On regrant  the erstwhile watandar holds the lands for and on behalf of  the Hindu  joint  family impressed with the character  as  joint family property. 6.This  Court  in  Nagesh Bisto Desai etc.  etc.  v.  Khando Tirmal  Desai  etc. etc., 1982 (3) SCR 341,  considered  the effect  of  the  Bombay  Merged  Territories   Miscellaneous Alienations  Abolition  Act 1955, the pre-existing  rule  of primogeniture, the consequences of the abolition under  that Act  and the resultant effect thereof It was also  contended therein that Kundgol Deshgat Estate was an impartible estate and  its  succession  was governed by  the  rule  of  lineal primogeniture consequent to the abolition of the watan under the Act 22 of 1955.  The question for consideration  therein was  whether the impartibility of the tenure of  a  paragana watan  appertaining to the office of a  Hereditary  District (Paragana)  Officer  by reason of family custom or  a  local custom,  whether  watan lands lost the  character  of  being joint family property with the resumption of the 378 watan under s.4 of that Act and regrant thereof and  whether the  lands were exclusive to the watandar by reason  of  his status  as  watandar and whether they were  not  capable  of partition. 7.   A Bench of three Judges after exhaustive  consideration

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had  held that the grant of watan to the eldest member of  a family  did  not  make the watan  properties  the  exclusive property  of  the person who is the watandar  for  the  time being.  The property though impartible may be the  ancestral property  of the joint Hindu family.  The  impartibility  of property does not per se destroy its nature as joint  family property  or  render it the separate property  of  the  last holder,  so as to destroy the right of  survivorship;  hence the  estate retains its character of joint  family  property and  devolves by the general law upon that person who  being in  fact and in law joint in respect of the estate.   He  is also the senior member in the senior line.  Impartibility is essentially  a creature of custom.  In the case of  ordinary joint  family  property, the devolution is governed  by  the general Mitakshara law applicable to such property.   Though the  other  rights which a coparcener acquires by  birth  in joint  family property no longer exist, the  birth-right  of the senior member to take by survivorship still remains.  In order to establish that a family governed by the  Mitakshara in which there is an ancestral impartible estate has  ceased to be joint, it is necessary to prove an intention,  express or implied, on the part of the junior members of the  family to  renounce their right of succession to the  estate.   The estate  though is impartible does not make it  the  separate and  exclusive property of the holder where the property  is ancestral  and  the holder has succeeded to it, it  will  be part  of  the  joint estate of the  undivided  family.   The incidents of joint family property, which still attaches  to the  joint  family  property is the  right  of  survivorship which,  of  course, is not inconsistent with the  custom  of impartibility.   Junior members of the joint family, in  the case of impartible joint family estate, take no right in the property by birth and, therefore, have no right of partition having regard to the very character of the estate that it is impartible.   The  expression  watandar of  the  same  watan includes the members of a joint Hindu family other than  the watandar,  who  were entitled to remain  in  possession  and enjoyment  of the watan property.  The holder of  the  watan land is entitled to regrant of the land in occupancy  rights as  an  unalienated  land.   The  abolition  of  the   watan extinguishes the office and modifies the right in which  the land is held. 8.The  abolition,  extinction  and  modification  arise   by operation of s.3 of 1955 Act was held not from the  exercise of the executive power of confiscation or resumption by  the State Government.  The commutation of service of watan lands by  which  the watandars were relieved  in  perpetuity  from liability to perform the services attached to their  offices in consideration of payment of the land revenue.  The lineal primogeniture  regulating  succession to the  estate  cannot prevail  under s.4 of 1955 Act, as being nothing  more  than incidents of the watan which stand abrogated by s. 4 of that Act.   It was, therefore held that watan families if  had  a hereditary interest in the watan property, such  inheritance enures  to the benefit of all the members of the  family  as the property belongs to the family and all persons belonging to  the watan family who had a hereditary interest  in  such watan property were entitled 379 to be called ’watandars of the same watan’ within the  Watan Act.  The members of the joint Hindu family must be regarded as holders of the watan land along with the watandar for the time  being, and therefore the regrant of the lands  to  the watandar under s.4 of that Act must enure to the benefit  of the entire joint Hindu’ family.  This Court upheld the  full

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bench judgment of the Bombay High Court reported in Laxmibai Sadashiv Date v. Ganesh Shankar Date, 79 Born.  L.R. 234 and another judgment in Dhondi Vithoba v. Mahadeo Dagdu, 75 Bom. L.R.  290.  The division bench judgment in, Babgonda’s  case was over-ruled. 9.   The same ratio proprio vigore would     apply  to   the facts in this case as well.   It  is seen that by  operation of  s.3  Watans have been abolished and  all  the  incidents attached to the watandari including the preexisting. custom, operation  of law or any decree or order of the court  were. nullified  by statutory operation.  Thereby,  the  incidents attached  to the watan i.e. liability to render  service  as patel  became extinct and the lands became  ryotwari  lands, office of watan stood extinguished, the lineal primogeniture stood  abolished  and the land on regrant became  the  Hindu joint family property held by the watandar for and on behalf of  the members of the joint Hindu family.  All the  members of the family became entitled to claim right to partition by survivorship.   The  Act had come into force on  January  1, 1963   after   the  Hindu  Succession  Act,   1956,   became operational.   Therefore, after the death of the  father  in 1956  and the right to succession as watandar opened to  the senior  lineal  male  descendant i.e.  Balwant  as  per  the existing  watan law.  The regrant was made in 1965 in  which year the right to claim partition accrued to all the members of  the family.  Thereby, Anna Saheb, plaintiff No.1  became entitled  to  claim 1/2 share in 15 acres 20  gunthas  along with  his  brother Balwant.  In Kalgonda Babgonda  Patil  v. Balgonda  Kalgonda Patil & Ors., 1989 supp. (1) SCC  246,  a bench  of this Court reversed the judgment of  the  division bench  of  the High Court following the ratio in  Nagesh  B. Desai,s case.  This case relates to patel watan property  of wat-hukum  by Kolhapur State.  In Anant Kibe v.  Purushottam Rao,  AIR  1984  SC  1121, another  bench  of  three  judges considered  the  effect  of the rule  of  primogeniture  and impartibility of the estate as a special mode of  devolution under  the M.P. Reserved (Inam lands) and M.P. Land  Revenue Code  and  held  that  the  inam  lands  together  with  the properties acquired from the income of the inam were  ances- tral  joint family property, though impartible estate  which devolved by survivorship by the rule of lineal primogeniture after the inam lands were abolished, the property became the joint  family  property.  Consequently it  became  partible. The  plaintiffs  were held to be entitled to  partition  and separate  possession  to the extent of their  1/2  share  in those  properties.  We do not find any ground to  refer  the case  to five Judges for decision.  In  Shivappa  Tammanappa Karaban v. Parasappa H. Kuraban & Ors., 1994 (4) Scale  750, a  bench of two Judges (K.  Ramaswamy and  N.  Venkatachala, JJ.)  following Nagesh B. Desai’s case and  Nalgonda’s  case upheld  the right to partition by the junior  members  after the Karnataka Village Officers Abolition Act, 1961 came into force.   In Shiddappa Satappa Murugude & Ors. v. Ramappa  S. Murugude & Ors., C.A. No.944 of 1973 by a judgment dated No- vember 25, 1986, two Judge Bench held 380 that it is not a joint family property but separate property of  the watandar.  Nagesh B. Desai’s case and  Anand  Kibe’s case decided by two benches of three judges were not brought to  the notice of the bench.  Therefore, with  due  respect, the ratio therein cannot be regarded as good law.  The ratio in  Bandu Kallappa Patil & Ors. v. Balagonda S. Patil,  1971 (1)  SCJ  429 is equally inapplicable to the facts  of  this case.  In that case the question was under the  pre-existing law  prior to the abolition and that therefore, a  bench  of

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two  judges of this Court held that Wat-Hukum enures to  the family of the Watan lands as Natmastha. 10.  Undoubtedly, by operation of Wat Hukum, an enquiry into heirship was conducted   and the eldest son of the  deceased Watandar  was declared as his successor (Navawala),  and  he succeeded  to the Watan property attached to the  office  as successor  by inheritance.  That the operation of  the  pre- existing  law,  customary or codified would  be  subject  to operation  of  the  Hindu  Succession  Act,  1956  and   the inconsistent law prevalent in (the then) Kolapur State stood repealed.  As held earlier, by rule of lineal primogeniture, the  Hindu  Succession Act stood excluded  until  the  watan together  with  the  burden  of  service  abolished.   After regrant  was made, the property becomes coparcenary  and  is liable  to  partition among  coparcenars.   The  contention, therefore,  that the provisions of Kolapur Hindu  Succession Act,  1920,  becomes  operational  and  the   interpretation thereon  made prior to the Act and the Hindu Succession  Act came into force, bears no relevance. 11.  The  trial  court, therefore, had rightly  granted  the preliminary decree and the division bench of the High  Court had  committed  manifest  error  of  law  in  following  the judgment  which was subsequently over-ruled by  this  Court. The  appeal  is accordingly allowed and the  decree  of  the trial court stands restored and that of the appellate  court stand reversed. Vilas G. Dalvi v Ramchandra Y. Dalvi & Ors. Civil Appeal No.2267/80 12.  The  ratio  of  our judgment  in  above  appeals  would equally apply to the facts in this case.  However, one  more contention  raised  in this appeals is that  the  defendants have  acquired title by prescription.  It was  pleaded  that mutations was effected on August 16, 1955 and from that date the defendants, it was averred, were in exclusive possession and  enjoyment  and that after the abolition  of  the  watan under Merged Territories Miscellaneous Alienations Abolition Act, 1955 after regrant, it was their exclusive property and that  there  fore,  they prescribed title  by  adverse  pos- session.   That contention is negative, the appellate  court and the High Court. 13.  Article 65 of the Schedule to the Limitation Act,  1963 prescribes that for possession of immovable property or  any interest therein based on title, the limitation of 12  years begins  to  run from the date of  the  defendant’s  interest becomes adverse to the plaintiff.  Adverse possession  means a hostile assertion i.e. a possession which is expressly  or impliedly  in  denial  of title of the  true  owner.   Under Article 65, burden is on the defendants to 381 prove  affirmatively.   A  person who  bases  his  title  on adverse  possession  must  show  by  clear  and  unequivocal evidence  i.e possession was hostile to the real  owner  and amounted  to a denial of his title to the property  claimed. In   deciding  whether  the  acts,  alleged  by  a   person, constitute  adverse  possession, regard must be had  to  the animus  of  the  person  doing  those  acts  which  must  be ascertained  from the facts and circumstances of each  case. The  person  who  bases his  title  on  adverse  possession, therefore, must show by clear and unequivocal evidence  i.e. possession  was hostile to the real owner and amounted to  a denial of his title to the property claimed. 14.  Where  possession could be referred to a lawful  title, it  will not be considered to be adverse.  The reason  being

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that  a person whose possession can be referred to a  lawful title will not be permitted to show that his possession  was hostile  to  another’s title.  One who holds  possession  on behalf  of another, does not by mere denial of that  other’s title make his possession adverse so as to give himself  the benefit  of the statute of limitation.  Therefore, a  person who  enters  into possession having a lawful  title,  cannot divest  another of that title by pretending that he  had  no tide at all. 15.  In  the  case  of  a Hindu joint  family,  there  is  a community of interest and unity of possession among all  the members of the joint family and every coparcener is entitled to  joint possession and enjoyment of the coparcenery  prop- erty.   The mere fact that one of the coparceners is not  in joint possession does not mean that he has been ousted.  The possession of the family property by a member of the  family cannot  be adverse to the other members but must be held  to be  on behalf of himself and other members.  The  possession of  one,  therefore, is the possession of all.   The  burden lies heavily on the member setting up adverse possession  to prove  adverse character of his possession  by  establishing affirmatively  that  to  the knowledge of  other  member  he asserted  his  exclusive title and the  other  members  were completely excluded from enjoying the property and that such adverse  possession had continued for the statutory  period. Mutation in the name of the elder brother of the family  for the  collection  of  the rent and  revenue  does  not  prove hostile  act against the other.  The right of the  plaintiff to file suit for partition had arisen after the Act has come into force and regrant was made by the Collector under  sub- s.(1) of s.5. The defendant, therefore, must plead and prove that after the regrant, he asserted his own exclusive right, title  and interest to the plaint schedule property  to  the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain  in  continuous  possession  and  enjoyment  of   the property in assertion of that hostile tide during the entire statutory  period of 12 years without any let and  hindrance and the plaintiff stood thereby. 16.  It  would be seen that until the character of the  land is  changed, by operation the rule of lineal  primogeniture, the  lands  became  impartible.   Therefore,  the  plaintiff therein could not claim any right for partition.  After  the Act  has come into force and on making regrant cause of  ac- tion  had  arisen to file suit for partition.  There  is  no pleading  and  proof  that  the  defendants  asserted  their hostile  title  to  the property to  the  knowledge  of  the plaintiff 382 and  they acquiesced in the same.  In its absence the  right to  claim  partition  would arise only  when  the  right  to partition  is  denied.   The  character  of  the  land  from impartibility to partibility had been changed under the Act. Thereby, both the courts have rightly held that they did not acquire  title  by  adverse possession.   This  appeal  also accordingly stands dismissed. Natha L. Gharage & Ors v. Rajaram A. Gharage & Ors. Civil Appeal No.2485/85 17.  In  this  case apart from the main question  which  was already  held against the appellants, two  more  contentions were raised in the High Court.  They filed an application in the  High Court under Order 6 Rule 17 for amendment  of  the written  statement  to  include  some  other  land  for  re-

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partition.   On  ground  of  laches,  the  application   for amendment  was disallowed.  The same was reiterated in  this appeal.  In view of the findings recorded by the High Court, we   do  not  think  that  it  is  a  fit  case   warranting interference by this Court at this distance of time.  It was also pleaded that the suit was barred by limitation.  It  is their  case that the partition had taken place prior to  the Act  22/85 had come into force, they remained in  possession as owners and that, therefore, the suit is barred by limita- tion.   The  appellate court  disbelieved  prior  partition. That  was also negatived by the High Court holding that  the suit  was  filed  after  the  character  of  the  land  from impartibility  to  partibility had been  changed  and  that, therefore,  it was not barred by limitation.  We  find  that the conclusion reached by the High Court is well  justified. The High Court and the appellate court have appreciated  the evidence  and reached the conclusion, therefore, this  Court does  not  embark upon the appreciation  of  evidence.   The appeal also since tagged with C.A.32/80, the controversy and the question of law stand concluded by the decision rendered hereinbefore.   The appellate court remitted the matter  for reconsideration  whether  the alienation made by  the  first appellant in favour of the appellants 2 to 8 and  respondent No.? were for legal necessity.  That was upheld by the  High Court.  Therefore, subject to the above, the judgment of the High  Court and the appellate court are upheld.  The  appeal is accordingly stands dismissed. Rajaram K. Powar & Ors. v Dinkarrao K. Powar & Ors. Civil Appeal No.3200-01/91 18.The only question raised was with regard to the character of  the land and the right to partition.  Since the  appeals were  tagged with C.A.32/80, the controversy gets  concluded with  the question of law decided in  C.A.32/80,  therefore, the appeals also stand dismissed. Pandurang B. Sarnobat v K.L. Sarnobat (Dead) By Lrs. & Ors Civil Appeal No.2557/93 The High Court in Second Appeal 383 No.1277/73, construing the terms of the sanad, held that  it is  a personal property for the benefit of the  watandar  in Act 22 of 1955.  The property assumed the character of self- acquired  property and that, therefore, the  properties  are not liable to partition and on its basis reversed the decree of the trial court and the appellate court.  On the question of law, the appeal was tagged with C.A.32/80. In view of the decision  therein  for the same reasons,  this  appeal  also stands  allowed.  The further contention that documents  are required  to  be looked into to find the  chequered  history involved  in the interpretation thereof is  untenable  since the  question of de-tagging the appeal does not arise.   The terms of Sanad Ex.70 and 71 and the interpretation placed on them by the High Court in reversing the decree of the courts below  primarily  hinge  upon  the  interpretation  of   the provisions  of Act 22 of 1955 which was already  settled  by this Court.  The High Court did not have the benefit of  its Full Bench decision and of the decision of this Court  which led  to the wrong view taken by the High Court.  The  appeal is   accordingly  allowed.   For  the  reasons   stated   in C.A.No.32/80 (supra), the appeal is allowed and the judgment and decree of the High Court dated November 7, 1981 made  in Second  Appeal  No. 1177/73 are set aside and  that  of  the

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trial court and of the appellate court stand restored. 20.  In  view  of the facts and circumstances,  parties  are directed  to bear their respective costs throughout  in  all these appeals. 384