1. This second appeal is directed against the concurrent decisions of the Court below decreeing the plaintiff's suit.
2. The plaintiff brought the present suit for partition of his 5/6th share in the court-yard Deohri, platform and stair-case. The Courts have come to the conclusion that all these properties are joint of the plaintiff and the defendants. The plaintiff has 5/6th share therein and the defendants 1/6th, with the result that a preliminary decree for partition was passed by the trial Court and it was affirmed by the lower appellate Court.
3. The only contention raised by the learned counsel for the defendants is that these properties are impartible. For his contention reliance is placed on Shantaram Balkrishna v. Waman Gopal Wadekar, AIR 1923 Bom 85 and Nathubhai Dhirajram v. Bai Hansgavri, (1912) ILR 36 Bom 379. In Shantaram Balkrishna's case the following relevant passage from Mitakshara was quoted:--
'Other things exempt from partition have been enumerated by Manu. Clothes, vehicles, ornaments, prepared food, women, sacrifices and pious acts, as well as the common way, are declared not liable to distribution.'
4. Vijnaneswara while dealing with each of the aforesaid items rule:--
'The common way, or road of ingress and egress to and from the house, garden or the like, is also indivisible.'
On the basis of these facts in Shantaram Balkrishna's case AIR 1923 Bom 85, it was ruled that land reserved as common passage at the time of partition between the parties is not divisible subsequently. In Nathubhai Dhirajram's case (1912) ILR 36 Bom 379, it was observed:--
' Under Hindu Law, in the absence of anything to show that at a partition a passage was allotted to either one party or the other exclusively, the presumption is that it continued joint and undivided even after the partition. That presumption must be rebutted by clear proof by the party who alleges that the passage was not reserved as joint but was divided and allotted to him exclusively as his share.'
It was further observed in this very decision:--
'According to the Mitakshara and the Vyavahara Mayukha, rights of way and rights to well and water belonging to a joint family are indivisible and if there is no evidence that at the partition of the family estate they were divided, the law will hold that they continued to retain the character of indivisibility attached to them by law, having regard to the nature of the rights in question.'
5. It will be seen from the nature of the property in Plan Exhibit P. 2 that the defendants cannot use effectively their 1/6th share of the property in case the property in dispute is allowed to be partitioned. But this does not hold good with regard to the Chabutra Z, marked D. I. J. G. on the aforesaid plan. Following the above two decisions I allow this appeal to this extent that excepting the Chabutra 'Z' the remaining property is impartible. The Local Commissioner will now only divide the Chabutra 'Z' between the parties in their proportionate shares. There will be no order as to costs.
6. Appeal partly allowed.