1 S.A. No. 706.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 706 OF 2010 Gopal Arjun Pawar .. APPELLANT VERSUS Bhimrao Rambhau Pawar (Died) through L.Rs.) & others ...RESPONDENTS ... Shri A.G. Dalal, Advocate for the appellant CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is Defendant No. 2’s Second Appeal. The present respondent No. 1 / Ori. Plaintiff had filed a suit for partition and separate possession in respect of the suit property. The Trial Court decreed the suit. The defendant No. 4 filed an appeal before the District Court. The District Court confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. The defendant No. 4 has assailed the said Judgment and Decree in the present Second Appeal. 2 S.A. No. 706.10 2. Shri Dalal, learned Counsel for the appellant strenuously contended that the tenancy and ownership certificate stands exclusively in the name of defendant No.1. In such circumstances, it will have to be presumed that the defendant No. 1 is the original owner of the property and the plaintiff had no concern with the said property. The person is in whose name the property stands is presumed to be the owner, and the other party claiming it to be joint family property to prove the same. The learned counsel further contended that as it was not disputed that the suit property was tenanted property, the plaintiff who was admittedly in service would not be entitled for any share and the same would be against the object of the Tenancy Act. The learned Counsel further contended that the plaintiff has not included the property standing in his name, and as such, the suit itself is bad in law by not including all the properties, there cannot be a piece-meal partition. 3. With the assistance of learned Counsel, 3 S.A. No. 706.10 I have gone through the Judgments delivered by both the Courts. No doubt the presumption is that a person in whose name the property stands is the owner, and the party contending otherwise has to disprove the same. The courts have relied upon the admissions given by the defendants in their evidence. The same has been reproduced by the Courts below. When the defendants in their evidence itself admitted that the property was entered in the name of defendant No. 1, as a elder brother, in that case no further proof would be required on the part of plaintiff. The Courts below on the said evidence have came to the conclusion that the suit property was a joint family property. Regarding the property standing in the name of plaintiff and not included in the suit is concerned, it is admitted fact that plaintiff was earning as he was in service It is not the case of the defendants that from joint family property nucleus the said property has been purchased. As such, the objection is not sustainable. Regarding the second objection of learned Counsel that as the plaintiff was in service, he would not be entitled to any 4 S.A. No. 706.10 property. The said would be against the object of the Tenancy Act, the same is not sustainable in as much as the principles of Hyderabad Agricultural Lands Act, recognises concept of hereditary tenancy, and does not exclude the person in service. 4. In the light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM* 706.10SA/291110