1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 264 OF 2010 WITH CIVIL APPLICATION No. 5489 of 2009 Nagorao S/o Shriram Aute & another .. APPELLANTS (Ori. Palintiffs) VERSUS Vithal S/o Shriram Aute & others .. RESPONDENTS (Ori. Defendants) ... Shri S.S. Jadhavar, Advocate for appellants Shri P.R. Katneshwarkar, Advocate for respondent No. 2 CORAM : S.V. GANGAPURWALA, J. DATE : 15h SEPTEMBER, 2010. PER COURT : The present appeal is filed by the unsuccessful plaintiffs. The plaintiffs had filed suit for partition and separate possession of land bearing Gut No. 52, admeasuring 3 Hector 54 Are to the extent of 1/4th share each situated at Village Pashta, Tq. & Dist. Jalna, on the ground that the suit property is joint family property. 2 Defendant No. 1 has illegally alienated 2 Hector and 25 Are land to defendant No. 2. 2. The Trial Court after recording the evidence and hearing the parties dismissed the suit, holding that partition against defendant No. 1 and plaintiff No. 1 had taken place prior to 1991 itself and defendant No. 1 had absolute right to sale the suit property. In Appeal the Appellate Court also confirmed the finding of the Trial Court. 3. Shri Jadhavar, learned Counsel for the appellants submitted that the factum of possession could only, be proved by the family members and alien could not have any right to comment upon the status of the family. He further submitted that simply on the basis of mutation entries, the Court could not have come to the conclusion that the partition was effected between plaintiff No. 1 and defendant No. 1. According to the learned Counsel for the appellants, the Courts below have not properly construed the legal possession. Shri Jadhavar, 3 learned Counsel further submitted that there would be a presumption of a joint family, when it is not disputed that the property was ancestral property. In such circumstances, the burden is upon the defendant to prove the factum of partition and possession. The defendant No. 1 has not stepped into the witness box. Defendant No. 2 does not have any personal knowledge about the events prior to his purchase, as such, he would not be competent to depose in respect of alleged partition and possession. 4. With the assistance of learned Counsels for the parties, I have gone through the Judgments passed by the Courts below. The Courts below have taken into consideration the fact that vide mutation in the relevant revenue record, separate shares were allocated to plaintiff No. 1 and defendant No. 1. After the shares were allocated to both the parties, defendant No. 1 has disposed of the property. Part of the property which was allocated to the share of plaintiff No. 1 was acquired for percolation tank and from the remaining 21 Are land, the plaintiff 4 No. 1 sold 1 Are land to one Mr. Kale by registered sale-deed. The recitals of the said sale-deed shows that plaintiff No. 1 has exercised his right over the suit property as an exclusive owner and possessor. The courts below have also taken into consideration that pursuant to the said transaction, mutation entries were recorded, and plaintiffs did not object to the same. In such circumstances, even assuming that the same was family settlement, still it would tantamount to partition. 5. On the date on which suit was filed, defendant No. 3 was alive, as such, plaintiff No. 2 did not have any right to institute the suit. 6. In the light of concurrent findings of facts, no case for interference is made out. No substantial question of law is involved in the Second Appeal, as such, the Second Appeal is dismissed. However, there shall be no order as to costs. 7. In view of the disposal of Second 5 Appeal, the Civil Application No. 5489 of 2009 does not survive, and the same is disposed of accordingly. [S.V. GANGAPURWALA,J] SDM*264.10SA