1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 254 OF 2005. Kashinath Krushnaji Telang & 7 Ors. Vs. Sudha Janba Telang & 5 Ors. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri Amol Mardikar Adv for appellants. Shri P. V. Kulkarni Adv for respondents. CORAM: C. L. PANGARKAR J. DATED: 1 st SEPTEMBER, 2009. Heard counsel for the appellants and the respondents. This Second Appeal is preferred against the two concurrent findings recorded by the Courts below. Respondent No.1 and 2's father Janba had instituted a suit for partition and separate possession of the suit property. It was his case that the suit property was joint family property and plaintiffs and 2 defendants 1 and 2 had 1/3rd share in the same. The suit was resisted by the defendant No.1 while the claim was admitted by the rest of the defendants. Defendant No.1 i. e. the present appellant contested the suit and contended that Sur. No. 24/1 was not the joint family property and it was self acquired property. He therefore contended that plaintiff had no share in the same. The trial Court found that the entire property in suit is a joint family property and therefore granted 1/3rd share to the plaintiff including the share in Sur. No. 24/1. The defendant No.1 preferred an appeal against the same. During the pendency of the said appeal defendant No.1 died and therefore his legal representatives were brought on record. The learned Judge of the appellate Court concurred with the findings recorded by the trial Court and dismissed the appeal. Feeling aggrieved thereby this Second Appeal has been preferred. Learned counsel for the appellant submits 3 before me that it was the case of the plaintiffs that the suit property was purchased by him from his own funds and it was purchased benami in the name of defendant No.1. He contended that trial Court as well as first appellate Court had erred in drawing the adverse inference against the present appellants because he did not enter into witness box. He submits that in fact the entire burden was on the plaintiffs and non entering into witness box by defendant No. 1 was of no consequence. After having gone through the pleadings it is apparent that plaintiffs had contended that the property i. e. Sur. No. 24/1 was purchased from his own funds but for the joint family. He contended in the plaint that plaintiffs and defendants 1 and 2 also have 1/3rd share in the said property. It is therefore apparent that plaintiffs have thrown this property into common hotchpotch even though it was allegedly purchased by him from his own funds. If it was the case of the defendant No.1 that it was his self acquired property purchased from his 4 own funds, it was incumbent on him to enter into the witness box. The learned Judges have rightly considered this aspect that defendant No.1 having refused to enter the witness box have rightly drawn an adverse inference. I therefore do not see any perversity in the appreciation of the evidence. No substantial question of law is involved except the question of fact which cannot be raised in the second appeal. There are two concurrent findings. There is no substantial question of law. Appeal is dismissed in limine. JUDGE svk