1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO. 73 OF 1986 Chinappa s/o. Gangaram died - per heirs and legal representatives : a) Irabai w/o. Chinappa, aged 75 years,occ. household, R/o. Mukhed, taluka Mukhed, District. b) Babu s/o. Chinappa, aged 52 years, occ. business, r/o. as above. c) Shivram s/o. Chinappa, age 45 years, occ. private service, R/o. as above. d) Gangaram s/o. Chinappa, age 42 years, occ. business, r/o. as above. h) Madhav s/o. Chinappa, age 38 years, occ. nil, r/o. as above. g) Shobhabai w/o. Baburao Venkatpurwar, age 49 years, occ. household, R/o. Ambekar Nagar, Nanded. - - Appellant [ Orig. plaintiff ] versus 2 1. Bhumanna Gangaram died L.Rs. Parvatibai w/o. Bhumanna, age 45 years, occ. household, R/o. Mukhed, dist. Nanded. - Respondent [ Orig. defendant ] Shri M. V. Deshpande, Advocate for appellants. Shri A. S. Deshmukh, Advocate for respondent. CORAM: N. D. DESHPANDE, J. Reserved for judgment on : 12th November 2009 Judgment pronounced on : 26th November 2009 JUDGMENT: 1. The second appeal is directed against the judgment and decree of the 1st appellate Court dated 29-7-1985 in Regular Civil Appeal No. 97 of 1982 passed by the learned Addl. District Judge, Nanded, allowing the appeal of the original defendant Bomanna s/o. Gangaram thereby setting aside judgment and decree dated 18-3-1982 passed by learned Civil Judge, Junior Division, Mukhed, district Nanded who was pleased to decree the plaintiff's suit for half share in the suit house with costs. The description of suit house - New Municipal No. 15/2 (old 22/2) measuring in length south-north 19 yards, in width east-west 13 yards 3 bounded towards : east - houses of Chenappa Belikar and Maroti Koli, west and south - road and north - house of Vithalrao Patil and Santuka Gauraji of Mukhed proper. Further direction to appoint a Commissioner for the partition of the house to make equal two shares and to put the plaintiff in possession of one share and defendant was restrained from installing electric flour mill in the share of the plaintiff in the suit house. 2. Accordingly, impugned the judgment and decree dated 29-7-1985 passed in Regular Civil Appeal No. 97 of 1982 of learned Additional District Judge, Nanded, is challenged in this second appeal by brother Chinappa who is the original plaintiff, for claiming partition and possession of his half share therein as per the judgment and decree dated 18-3-1982 passed by learned trial Court in Civil Suit No. 96/81. Thus, the dispute of partition is very old of the year 1981 and since pending in second appeal, by the respective legal heirs of the original parties who were real brothers, after the appeal came to be admitted by the order of this Court on 4 15-4-1986. 3. The appellants are represented by Shri M. V. Deshpande and respondents by Shri A. S. Deshmukh. Both extensively argued the appeal and co-operated in disposal of this old dispute of partition between the two brothers. Needless to state that this is a partition suit of single property i.e. residential house allegedly belonged to joint family and such dispute like partition suit should get top priority for disposal in the Court of law. 4. Heard arguments of both sides. 5. The original plaintiff and the defendant were real brothers. The plaintiff had described the suit house as their ancestral property and sought partition for half share, after the death of their father Gangaram who died 40 years ago. The suit house was held by his elder brother Bhumanna, who was karta of the family and there was no partition of the suit house during the life time of the father. Therefore, it remained in exclusive possession of defendant brother Bhumanna. On 14.05.1981 when plaintiff demanded partition and separate possession of his half share in the suit house, which is the only property claimed to be the ancestral 5 property of the family and upon refusal by the defendant, the plaintiff filed the suit. The defendant categorically denied plaintiff's claim to the suit house for the same did not belong to the joint family property of their father Gangaram and stated that, it was self acquired property of Kalba, his uncle who adopted him. The suit house was in exclusive possession of Kalba who was real brother of their father Gangaram, and therefore, it was argued that there is no evidence brought on record to show that it was joint family property of their father Gangaram and Kalba and further urged that in the facts and circumstances of the case, no presumption of joint family property would arise for considering the alleged claim of the plaintiff in the suit house. 6. I have gone through the impugned judgment and order passed by the learned Additional District Judge. Both the points were discussed by the learned appellate Court and it came to the conclusion that, the plaintiff failed to prove that the suit house was the ancestral property. It also held that the defendant was adopted son of Kalba and dismissed the plaintiffs claim to partition the suit house. The Trial Court's decree for partition and separate possession was dismissed with costs. It is also seen that the suit house stand in the name of Kalba alone and not in the name of 6 both the brothers, although Gangaram was the eldest member in the family. 7. It is further seen that, the plaintiff after his marriage was residing separately in the house of his father-in-law since for a period of 30 to 40 years and never claimed partition of the suit house. The evidence on the point of his joint residence in the suit house was not believed. It is also found that, their father Gangaram was also not residing n the suit house in Mukhed and he was residing at Kundalwadi and Nirmal for earning his livelihood and for his livelihood he was moving from place to place. During his life time also Gangaram did not claim partition. As such, there is no evidence, oral or documentary to infer that it was an ancestral property of the joint family of the parties. 8. After the death of Kalba, the property register extract proved at Exh. 40 and 41 revealed the name of defendant as owner of the suit house upon death of owner Kalba as son of Kalba in the Municipal record from 1955. In order to falsify the said record and entry therein as son of Kalba on the basis of alleged adoption and further denying adoption, the plaintiff relied on voters list of 1979 and ration card of the defendant, where the name of defendant is 7 shown as son of Gangaram being the natural father. The plea of adoption was raised by the defendant to explain how he inherited the suit house which was owned by Kalba and adoption was not the material or real issue in the suit to be tried. The main issue is to prove the suit house as joint family property, which the plaintiff failed to prove for claiming the partition in the suit house. The facts and circumstances indicate that a single house which was being used as residential house by Kalba and after him by the defendant since long exclusively, cannot be considered as joint family property merely because father Gangaram had three brothers namely; Kalba, Pundalik and Baba who died bachelor. No presumption can be raised in that regard in favour of the plaintiff to hold the suit house as jointly family property in the absence of some evidence that the suit house was ancestral house held by the joint family. No partition was claimed by Gangaram who is the father of plaintiff and defendant during his life time or raised any such claim against Kalba, the presumption becomes weaker for the next generation. I find that there is elaborate discussion made in the impugned judgment and order at relevant paras 9, 10 and 11. Thus primary burden is cast on the plaintiff who failed to discharge the same by cogent evidence. 8 9. To sum up, the appeal is devoid of substance and calls for no interference in the impugned judgment of the 1st appellate Court dated 29-7-1985. The same is upheld. Consequently, present second appeal stands dismissed with no order as to costs. ( N.D.DESHPANDE, J. ) pnk/sa7386