( 1 ) sa33.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 33 OF 2009 WITH CIVIL APPLICATION NO. 662 OF 2011 Nagnath s/o. Vishwanath Vishwambhersingh Tomar Rajput, Age. 45 years, Occ. Agri., R/o. Takwiki, Tal. & Dist. Osmanabad. ..Appellant VERSUS 1. Dhondabai w/o. Aarjunsingh Rathod Age. 52 years, Occ. Household, R/o. Khamaswadi, Tal. Kallamb, Dist. Osmanabad. ..Respondent s 2. Shobha d/o. Vishwanath @ Vishwambhersingh Rajput, Age. 32 years, Occ. Household, R/o. Takwiki, Tal. & Dist. Osmanabad. 3. The State of Maharashtra Through the Collector, Osmanabad. 4. The Special Land Acquisition Officer, Osmanabad. 5. Kamalaba Vishwanath @ Vishwambhersing Tomar Rajput, Age. 72 years, Occ. Agri.& Household, R/o. As above. (Deleted as per order dated 05.12.2008) 6. Chandrabhaga Dilipsingh Rajput Age. 37 years, Occ. Household & Agri., R/o. Karmala, Tq. Karmala, Dist. Solapur. Mr. S.I. Nandode, Advocate for the appellant; Mrs. Rashmi S. Kulkarni i/b. Mr. S.D. Kulkarni, Advocate for respondent Nos. 1 & 2. ( 2 ) sa33.09 CORAM : A.V. NIRGUDE, J. DATED : 11.10.2011 ORAL JUDGMENT :- 1. This Second Appeal challenges the concurrent findings of the Courts below that the respondents/ plaintiffs were entitled to partition of the suit property and possession of their respective shares. 2. The facts leading to this litigation are quite simple and are as under :- 3. Respondent Nos.1 & 2 are the plaintiffs and are sisters of the appellant. Respondent No.6 is their third sister. Respondent No.5, who is deleted because of her death during the pendency of this appeal, was the mother of the parties. Vishwanath was father of the appellant and respondent Nos. 1,2 & 6. During his lifetime he purchased the suit property, namely, two pieces of land at village Takwiki, Tal. & Dist. Osmanabad. He died in 1999 and so respondent Nos.1 & 2 filed the suit for partition and separate possession of their share. The appellant and respondent No.5 took up a common defence which can be stated as under :- 4. Admitting the fact that the suit lands belonging to Vishwanath as his self-acquired property, they asserted that during the lifetime of Vishwanath, he executed a document transferring one of the suit lands in favour of the appellant. They said that pursuant to this ( 3 ) sa33.09 document, the appellant got the suit property mutated in his name in the revenue record and thus become owner of the same. They did not say anything about other piece of land. The Courts below held that the document on which the appellant placed reliance would not give him valid title and since the suit lands were self-acquired property of Vishwanath and since he died intestate, the appellant other legal heirs of Vishwanath would get equal share in it. At the time of admission of this appeal, my learned predecessor framed the following substantial questions of law. i) Whether the Courts were justified in disputing the partition-deed (Exhibit-63) executed between son and father – Vishwanath/Vishwambhersing, based on which, mutations were taken in the year 1980-81 while Vishwanath expired on 02.10.1999? ii) Whether both the Courts below failed to consider that the doctrine of blending is applicable to the present case owing to the fact that while executing the partition-deed (Exhibit-63) in favour of son/appellant (original deft.no.3), Vishwanath had an intention to blend his self acquired property into joint hotch-potch and hence it becomes joint family property, liable for partition? 5. Both these questions are related to the document Exh.63 on which the appellant placed reliance and about which the narration is made above. I read this and found ( 4 ) sa33.09 it quite peculiar. In this document Vishwanath – the father of the appellant stated that the suit lands are his ancestral properties and that he would effect partition of the same between him and the appellant – his son. He stated further that he would give one of the suit lands (Gat No.99) to the appellant and retain the remaining property to himself. The fact that Vishwanath stated in this document that the suit properties are his ancestral properties, it seems, gave an opportunity to the appellant to raise new defence, which is completely alien to his pleading. He now asserts that Vishwanath chose to throw his self-acquired property in the hotchpotch of ancestral joint family property and thereby blended these two properties into the ancestral property. Based on such unavailable assumption, the appellant, it seems, urged the Court to appreciate the contents of the document Exh.63, which is titled as partition-deed. Probably based on this submission, above mentioned substantial questions of law were framed by my learned predecessor. However, the submission on which these questions are based was not at all available to the appellant. He never pleaded that the suit properties were ancestral properties of Vishwanath. He neither pleaded that one of the properties was ancestral properties and the other was self-acquired one. The learned Counsel appearing for the appellant asserted that ( 5 ) sa33.09 the appellant was not required to plead that there occurred blending of ancestral and self-acquired property during the lifetime of his father–Vishwanath. He placed reliance on the following paragraph of the Supreme Court judgment in the case of Subramania Reddi (dead) Vs. Venkatasubba Reddi (dead) and Ors., AIR 1999 S.C.1116. “15. The question of blending of properties was not considered by the High Court on the basis that there was no such plea. The learned Counsel for the appellant relied upon B.Shah v. Presiding Officer, Labour Court, Coimbatore, AIR 1978 SC 12, to submit that no specific plea of blending is required. We will assume for the purpose of this case that this legal position is correct. Even so, the result will not be different because there is no evidence of blending of separate property in the joint family property. Again the whole matter rests on appreciation of evidence. When there are concurrent findings on the question of fact we do not think we can re-appreciate the same. Indeed the appellant wanted even properties inherited by the first defendant under a will should also be included in the joint family properties and should be treated as having got blended with other properties. We do not think such a course is permissible at all and there was no reason for the first defendant to bring in the properties inherited by him from his relations on his maternal side to blend with the property of the joint family.” 6. At least in this paragraph the Supreme Court did ( 6 ) sa33.09 not lay down law that for the purpose of raising defence based on blending of two properties a specific plea is not required. Despite this, let me consider the case from the point of view of the contents of documents Exh. 63. In this document, as said above, Vishwanath stated that the suit properties were his ancestral ones. Let us assume that during his lifetime on the day when the document was executed, he intended to effect partition of such ancestral property and in accordance with such intention the document was scribed. In this document, there is no mention of the daughters and the wife of Vishwanath. It seems that the appellant as well as his father Vishwanath assumed that they alone were entitled to share in the ancestral property of joint Hindu family and under such wrong assumption the document was scribed. Assuming such document was scribed, other coparceners, namely, daughters of Vishwanath were still entitled to demand partition of the suit property. Even if they assume that the suit property was ancestral property of the joint Hindu family, they could have certainly challenged the correctness of the partition shown to have been effected through so called partition-deed Exh.63 and could have succeeded in getting their rightful share in the suit property. Even in such situation the document Exh.63 would not have been useful to the appellant. As said above, the doctrine of the blending which is ( 7 ) sa33.09 probably for the first time raised by the appellant was not at all available to the appellant. 7. Despite this conclusion the learned Counsel appearing for the appellant placed reliance on judgment of this Court in the case of Atmaram s/o. Ganu Nagrale Vs. Baliram s/o. Ganu Nagrale, 2010 (2) All MR 675. The ratio of this judgment is not at all applicable to the present case. 8. The appeal, therefore, should fail. The appeal stands dismissed. 9. The learned Counsel for the appellant asserted that the order passed by the learned Judge of the First Appeal Court, on his application Exh. 57 filed under Order 41 Rule 27 of the C.P.C. for seeking permission to lead additional evidence, is erroneous. However, on going through the same, I find that the order is correct. I am not inclined to discuss the factual aspects of the case, due to which the appellant could not get permission from the learned Judge of the First Appeal Court for leading additional evidence. In view of this, there is no question of allowing Civil Application No. 662 of 2011. The same too stands dismissed. [A.V. NIRGUDE, J.] snk/2011/OCT11/sa33.09ok