1 S.A. No. 227.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 227 OF 2008 Sarjerao Bhimrao Chavan .. APPELLANT VERSUS Kisan Bhimrao Chavan & others ..RESPONDENTS WITH SECOND APPEAL No. 230 OF 2008 Sarjerao Bhimrao Chavan & others .. APPELLANTS VERSUS Kisan Bhimrao Chavan & others ..RESPONDENTS WITH SECOND APPEAL No. 231 OF 2008 Sarjerao Bhimrao Chavan & others .. APPELLANTS VERSUS Kisan Bhimrao Chavan & others ..RESPONDENTS ... Shri. K.K. Kularni, Advocate for the appellants CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : One Kisan had filed Regular civil Suit 2 S.A. No. 227.2008 No. 123 of 1995 for declaration that he is the owner of agricultural lands as detailed in the plaint. He had also filed Regular Civil Suit No. 200 of 1995 in respect of house properties which was for partition and separate possession, so also Sarjerao had fled Regular Civil Suit NO. 201 of 1995 for injunction in respect of the house properties No. 422 and 421. The trial Court dismissed the suit filed by Kisan and decreed the suit filed by Sarjerao. Three appeals were filed. The appellate Court decreed the suit filed by Kisan and dismissed the suit filed by Sarjerao. Sarjerao has assailed the said Judgements in the present Second Appeals. 2. Shri K.K. Kulkarni, learned Counsel for the appellant submitted that the trial Court on appreciation of evidence had come to the conclusion that agricultural lands were purchased from the income of joint family, and the other brothers had also contributed to the same. Though the execution of the sale-deed was admitted the contents were not admitted by the appellant. The said Kisan failed to prove the contents of the 3 S.A. No. 227.2008 documents and as such the said sale-deeds of agricultural lands could not have been relied for passing the decree in favour of Kisan. The learned Counsel further contended that Manikrao was in service as a teacher, Kisan could not have purchased the agricultural lands in the year 1966 from his income and the amount was contributed by other brothers also. There is a partition deed on record, which suggest the partition of the house properties and agricultural lands. The same is a composite document in respect of house properties and agricultural lands. Admittedly, house properties are the ancestral properties, the partition deed also proves that as the properties were ancestral they were subject matter of the said partition. Shri Kulkarni, learned Counsel also referred to the pleadings made by the plaintiff in an earlier suit i.e. Regular Civil Suit No. 185 of 1994, wherein he has given a hint about a partition. Shri Kulkarni, further submitted that the lower appellate Court has committed an error in observing that the said partition deed is inadmissible for want of registration. 4 S.A. No. 227.2008 3. Per Contra Shri S.S. Chavan, learned Counsel for the respondent submits that lower appellate Court has rightly considered the fact that there was no joint family property which was yielding income. As such, there was no availability of nucleus. The house properties did not yield any income. The sale-deed is in the name of Kisan. As such, he is the owner of the property. According to him, the lower appellate Court has properly considered the said aspect. 4. With the assistance of learned Counsel I have gone through the Judgments. It is trite law that there is a presumption of an existence of joint family but there is no presumption that the property standing in the name of an individual is a joint family property. Admittedly, the sale-deeds by virtue of which the agricultural lands are purchased stands in the name of Kisan. There is no nucleus of the joint family by virtue of which it can be said that the property has been purchased from the income of the joint family. Though Sarjerao and Manikrao 5 S.A. No. 227.2008 have contended that even they have contributed for the purchase. There was no evidence of any contribution on their part to the consideration amount of the sale-deeds. The present appellant has not been in possession to discharge the initial burden to show that the said property was purchased from the income of the joint family or that the defendants had contributed to the consideration amount. In the light of the same, it will have to be held that the agricultural lands were exclusive properties of Kisan. Once it is held that the same were exclusive properties of Kisan, then there cannot be any partition of the said property. If the said property is sought to be partitioned it would tantamount to gift which will require registration as per Section 17 of the Indian Registration Act. In absence of the same it can not be read. The lower appellate Court on appreciation of evidence has come to the conclusion that the appellant witnesses could not give the details of the partition. On appreciation of evidence the lower appellate Court has disbelieved the said partition. The lands were purchased way back in the year 1966 6 S.A. No. 227.2008 and 1971 still till the year 1993 no over tact were done by the appellants. This circumstance has also been taken into consideration by the Court below. 5. In the light of above, Kisan was the exclusive owner of the agricultural lands. The deed of partition was not believed as such, the suit for partition in respect of house properties was decreed. Shri Kulkarni, learned Counsel states that the present appellant is in possession of the western side CTS No. 421 and 422 and as such his suit for injunction should have been decreed. Suit for partition and separate possession itself is decreed by the Courts below. As such while effectuating the partition as far as possible the portion which is in possession of the respective parties may be alloted to them. 6. In the light of above, Second Appeal being devoid of substantial question of law is dismissed. However, there shall be no order as to costs. 7 S.A. No. 227.2008 In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*