1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO. 1010 OF 2004 Zingubai @ Narmadabai w/o. Kalsing Bhil, age 53 years, occu. agriculturist, R/o. Aner Dam, tq. Shirpur district Dhule. - - Appellant vesus 1. Parvatabai w/o. Javali Bhil, age 73 years, occ. nil, R/o. Sangavi, tq. Shirpur, district Dhule. 2. Jijabai @ Hausabai w/o. Deva Bhil, age 38 years, occu. household, R/o. Sangavi, tq. Shirpur, district Dhule 3. Daupadabai @ Kasturbai w/o. Parsuram Bhil, age 36 years, occ. household, R/o. Phagane, taluka and district Dhule. - - - - Respondents Shri A. R. Kawade, Advocate h/f Shri P. R. Patil, Advocate for the appellant. Appeal dismissed as against respondents Nos.1 and 2 as per Court's Order dated 9-10-2009. Respondent No.3 absent though served. 2 CORAM: N. D. DESHPANDE, J. Dated : 7th December 2009 PER COURT: 1. Heard Shri P. R. Patil, learned Counsel for the appellant. The present appellant is original defendant and respondents are original plaintiffs. Plaintiffs have filed a civil suit for their share in the land house property situated at village Sangavi, taluka Shirpur, district Dhule which is held by Zingubai the appellant. The parties are tribals. There are other suits filed among the relations for injunction simpliciter. All those suits have been decided by common judgment. The main grievance of the appellant/ defendant is that both the trial Court and the appellate Court, decided the suit and appeal without applying the correct provisions of law, and it was argued that plaintiffs have neither pleaded custom nor the law by which they are governed in the matter of partition. Even this position was accepted by both the Courts below. They proceeded further with the partition suit and declared their shares for handing over of the possession regarding suit property. During the course of argument it is admitted by Shri Patil, learned Counsel for the appellant / defendant that the appellants were also plaintiffs in the other pending proceedings such as suit for injunction simpliciter 3 and there also appellant did not plead any custom or law specifically in the pleading for getting justice from the Civil Court. In the present proceedings, Regular Civil Suit No. 147 of 1987 appellant/ defendant filed written statement of denial only and did not state about the law or the custom they govern. Now the defendant is appellant before this Court and when asked as about their custom or law they are governed, the appellant had no answer. The appellant simply denied that they are not governed by Hindu Law. It would not suffice when party wants justice from the Court in whatever capacity, they appear before this Court for partition matter, or regarding dispute of family property is concerned, moreover when the party is a loser in both the Courts below and now seeking justice in second appeal, burden is on such party who did not dispute share of plaintiff in the joint property. This precisely is governed by section 101 of the Indian Evidence Act. 101. `"Burden of proof" - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 4 The particular section is not only applicable, for proving a fact in a suit or proceeding, such as inquiry or trial for fact finding, but burden of proof has larger connotations. It not simply pin down the parties in a suit, but also before any Court where it is desirous to any judgment includes second appeal also. 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 2. In my opinion, the appellant did no discharge his burden at the stage of admission and refused to state the custom or law of the family though it is in his personal knowledge and simply denied that they are not governed by Hindu Law. It is already made clear that defendant/appellant did not dispute share of plaintiff in the suit property and urged for dismissal of the suit. So far two courts had decided dispute of the parties who had jurisdiction to decide the same and there was no challenge of the jurisdiction of these two Courts below in the past. 3. In the light of the above observations no substantial question or substantial dispute requires consideration. No case is made out 5 in second appeal. The impugned judgment and order call for no interference and, therefore, it stands dismissed summarily, at the stage of admission and disposed of accordingly. ( N. D. DESHPANDE, J. ) pnk/sa101004