( 1 ) sa74.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 74 OF 2008 WITH CIVIL APPLICATION NO. 1309 OF 2008 Namdeo s/o. Khanduji Mutkule .. Appellants (Died - Through LRs.) & Ors. Versus Tukaram Harji Mutkule .. Respondents (Died - Through LRs.) & Ors. Mr. V.D. Hon, Advocate for the appellants; Mr. P.S. Agrawal, Advocate for the respondents. CORAM : A.V. NIRGUDE, J. DATED : 11.10.2011 P.C. :- 1. This Second Appeal challenges mainly the judgment and order dated 15.10.2007 in Regular Civil Appeal No.13 of 1997, passed by the learned Adhoc District Judge-1, Hingoli. Regular Civil Appeal No.13 of 1997 arose from the judgment and decree in Regular Civil suit No.30 of 1988. The respondents and their predecessors filed this suit against the appellants and their predecessors for partition and separate possession of four pieces of land situated at village Changephal, Tal. & Dist. Hingoli. It is common ground that these four pieces belonged to the common ancestor Harji, which he received as ancestral property. It is further common ( 2 ) sa74.08 ground that Harji had four sons, by name, Pandu, Gyanu, Vithoba and Tukaram. It is case of the respondents/plaintiffs, who are successors of Vithoba and Tukaram, that the suit lands were not partitioned during the lifetime of Harji amongst his sons and so they remained joint family property of the above mentioned four brothers. They demanded half share in the suit lands. The appellants on the other hand contended that these lands were subjected to partition during the lifetime of Harji and were allotted to the share of Pandu alone. Pandu, thus become owner of these lands and so the suit should not be decreed. The appellants could not lead ocular evidence to prove that in the partition that was done during the life time of Harji, the suit lands were given to Pandu. They mostly relied upon 7/12 extract and Khasra Patrak of these lands. Even the respondents/plaintiffs placed reliance on revenue record mentioned above. 2. The four pieces of lands mentioned above came from two different survey numbers, namely, Survey Nos. 9 and 20. After perusing the old revenue record of these lands, the learned Judge of the Trial Court came to a conclusion that the record showed that two lands out of the suit lands coming from Survey No.9 are belonging to Pandu since beginning and therefore he held that these two lands were given to the share of Pandu when the ( 3 ) sa74.08 partition took place. He, however, rejected the appellants’ case in respect of other two lands coming from Survey No.20 and held that these two pieces of lands were not subjected to partition at all and were joint family property. He allowed the respondents’ suit only to the extent of these two lands. In view of this judgment of the Trial Court on one hand the appellants filed their appeal vide Regular Civil Appeal No.12 of 1997; whereas the respondents/plaintiffs also challenged the judgment of the Trial Court by filing Regular Civil Appeal No.13 of 1997. 3. Since these two appeals arose from judgment in Regular Civil Suit No.30 of 1988, the learned Judge of the First Appeal Court decided them through a common judgment. He held on facts that the learned Judge of the Trial Court erred in holding that two suit pieces of lands from Survey No.9 were given in the share of Pandu. He observed that the revenue record cannot prove the factum of partition and also he allowed Regular Civil Appeal No.13 of 1997 and dismissed Regular Civil Appeal No.12 of 1997. As against this common judgment, the appellants filed only one appeal. In this appeal the judgment and decree dismissing Regular Civil Appeal No. 12 of 1997 and allowing Regular Civil Appeal No.13 of 1997 are challenged. Since this was not permissible, at the request of the appellants’ advocate, I assume that ( 4 ) sa74.08 this appeal challenges only judgment and order arising from Regular Civil Appeal No.13 of 1997. 4. The learned Counsel appearing for the appellants contended that the revenue record clearly points out that the suit lands from Survey No.9 were since beginning standing in the name of Pandu. At some places. It was also mentioned in the revenue record that he was owner of these lands because he received these lands in partition. He said that the learned Judge of the First Appeal Court erred in ignoring this significant and strong evidence in favour of the appellants. 5. Having gone through the impugned judgment on this point, I am convinced that the learned Judge has not made error in coming to the impugned conclusion. He rightly held that the revenue entry would not be sufficient for proving the factum of partition. Even otherwise the evidence did not support the case of the appellant at all because the appellant since beginning came with a case that all the four suit lands coming from Survey No.9 and 20 fell to the share of Pandu and their predecessors. They admittedly could not prove their case as far as two suit lands coming from Survey No.20. So their theory that all the suit lands at village Changephal were given to the share of Pandu was not proved at all. The appellants did not take a stand in the written statement that in the alternative they should ( 5 ) sa74.08 be allowed to take a defence that two of the suit lands were given to the share of Pandu. Therefore, they cannot be allowed to take such a stand now at this stage. As said above, the appellant could not prove the factum of partition by adducing cogent ocular evidence. They could have examined a person who had seen the event of partition that had taken place long back during the lifetime of Harji and his sons. The appeal does not, therefore, gave rise to any substantial question of law. The appeal stands dismissed. 6. In view of disposal of the Second Appeal, connected Civil Application for stay does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/OCT11/sa74.08ok