1. The question involved in this second appeal is fully covered by the two judgments of the Supreme Court. The first one reported in : [1982]3SCR341 Nagesh Bisto Desai v. Khando Tirmal Desai and : [1984]3SCR484 Anant Kibe v. Purushottam Rao. In fact both these judgments approve and affirm the judgment of Full Bench of this Court reported in : AIR1977Bom350 Laxmibai Sadashiv Date v. Ganesh Shankar Date.
2. It is unnecessary to state the facts of the case in detail because they have been set out quite sufficiently in the judgment of both the Courts below. They may be very briefly stated here in order to formulate the question involved here. The suit lands were the original sanadi inam lands. The original vatandar in whose favour the inam was given by the relevant vathukums had (sic) within the suit lands of impartible character, inheritable only by the leneal primogeniture. It appears that the plaintiff was in possession of the lands by virtue of the rule of primogeniture.
Later on the inams stood abolished by virtue of Merged Territories Miscellaneous 'Alienations Abolition Act, 1955. According to the plaintiff he paid the occupancy price as per the provisions of Inam Act and according to it the lands were regranted to him by the Government. On that basis he filed a suit for perpetual injunction restraining I he defendants who claim to be his co-sharers from interfering with his possession to the suit lands.
The defence was that the regrant was received by him on behalf of the joint family of the plaintiff and the defendants and that the occupancy price was paid by him out of the income of the joint family. It was further contended that he was not in exclusive possession of the suit lands but that the defendants were also in joint possession of the same.
The trial Court held that the plaintiff was in possession of the suit lands but it also held that after the abovementioned Inam Abolition Act of 1955, the lands ceased to be impartible lands. According to them, the lands were always joint family property but by virtue of the provisions of sanad in question they were impartible and further by virtue of the several laws of primogeniture made applicable to such lands, the eldest son of the deceased vatandar was shown to be the inamdar. According to defendants these features did not go with joint family character of the suit lands.
3. The trial Court more or less accepted the plaintiffs plea that he was in possession of the suit lands but followed the judgment of a learned single Judge (Kamat, J.) of this Court, reported in : (1972)74BOMLR290 and held that upon abolition of the inam, the joint family characters of the suit lands were restored to their dormant features of partibility and survivorship. He therefore held that all the parties i.e. plaintiff and the relevant defendants were having share in the suit lands and that, hence, the plaintiff was not entitled to the injunction. The suit was therefore dismissed by him.
4. In appeal, the learned Assistant Judge has purported to follow the judgment of a Division Bench of this Court in Kalgonda Balgonda v. Balagonda Kalgonda : (1976)78BOMLR720 as also the judgment of another Division Bench reported in : AIR1978Bom64 , Balwant v. Annasaheb. Purporting to follow these judgments, the learned Judge has held that the abolition of inam had not effect upon the impartible character of the suit property nor upon the succession by the plaintiff to the property by the rule' of primogeniture. The Full Bench judgment has been distinguished by him by stating that in the said case of Date v. Date : AIR1977Bom350 , decided by the Full Bench, the inam in question was not a personal inam. He has observed that the present inam is a sanadi inam and hence a personal inam. He has, therefore, allowed the appeal and decreed the plaintiff's suit for injunction.
5. After the appeal was admitted, two judgments have been delivered by the Supreme Court which are mentioned above. The first one reported in : [1982]3SCR341 , arose out of the litigation in relation to an Inam Abolition Act in the State of Maharashtra itself. The other one reported in : [1984]3SCR484 , relates to an Inam Abolition Act passed in the State of Madhya Pradesh, But I may state here itself that the provisions of both the statutes are more or less identical and perfectly pari materia. In fact in the judgment in : [1982]3SCR341 , the judgment of the Full Bench of this Court reported in : AIR1977Bom350 has been referred to and very much approved. The ratio of the judgment of the Supreme Court clearly shows that the judgment of the Division Bench not only in Kalgonda's case 1976 Bom LR 720 but also in the subsequent case of Balwant v. Annasaheb reported in : AIR1978Bom64 , have been dissented from.
6. To my mind, the above Supreme Court ruling fully covers the facts and questions arising in this appeal. Moreover to my mind the question is fully covered also by the Full Bench of this Court reported in : AIR1977Bom350 . My attention was also invited to an unreported judgment of a Division Bench (Deshpande, Dighe, JJ.) in which the view taken by the Division Bench in Balwant v. Annasaheb, : AIR1978Bom64 has been dissented from. In my opinion, the view taken by both the Division Benches in Kalgonda's case 1976 Bom LR 720 as well as in Balwant's case cannot be sustained, in view of the judgment of the Full Bench in Date v. Date as also by virtue of the above mentioned two judgments of the Supreme Court.
7. The appeal, therefore, succeeds. The decree passed by the lower appellate court is set aside and the decree of dismissal passed by the trial Court is hereby restored. However, in the circumstances of the case there shall be no order as to costs of this appeal or of the appeal in the lower appellate Court.