: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.122 OF 2004 SECOND APPEAL NO.122 OF 2004 SECOND APPEAL NO.122 OF 2004 Anandrao Natha Sargar, Deceased, . Thru’ Indubai A. Sargar & Ors. ...Appellants V/s. Baburao Dada Kanase & Ors. ...Respondents Mr.Dilip Bodake, Advocate, for the Appellants. Mr.Vijay Patil, Advocate, for Respondent No.1. Mr.Ajit Kenjale, Advocate, for Respondent Nos.2A & 3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 13TH FEBRUARY, 2008. DATE : 13TH FEBRUARY, 2008. DATE : 13TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard learned Advocate appearing for the appellants. Appellants are the plaintiffs. Suit filed by the appellants for partition and separate possession has been dismissed by the Trial Court. The decree has been affirmed in the Appeal. 2. The submission of the Advocate for the appellants is that though the appellants may not have established that the appellants and respondents constituted a joint family, the undivided share of the appellants in the suit property was not disputed by the respondents and in absence of a very clear evidence regarding partition by metes and bounds : 2 : between the parties, the Courts below ought to have passed a decree for partition and separate possession. It is submitted that the finding of the Courts below is regarding the existence of family arrangement which does not amount to partition. 3. I have carefully considered the submissions. The appellants-plaintiffs filed a suit on the ground that the suit properties are ancestral properties. Finding of fact based on admission of the appellants is that the family of the appellants and the family of the 1st respondent belong to different communities and they do not form joint family. Thus the suit filed by the appellants proceeded on incorrect assumption that the suit properties were ancestral / joint family properties. 4. Apart from this finding which needs no interference, the Courts below and especially the Appellate Court has considered the oral and documentary evidence on record and has recorded a finding that both the families were in separate possession of their respective lands for last 50 to 60 years. It is an admitted position that the families are separately paying the agricultural cess and revenue assessment. Therefore, the Appellate Court : 3 : recorded a finding that in fact there is a partition of the properties. The Appellate Court noted that there was a long silence on the part of the original plaintiff. 5. Considering the concurrent findings of fact, no substantial question of law arises. Second Appeal is dismissed. Civil Application No.119 of 2004 does not survive. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]