1 S.A.No.327/08 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.327 OF 2008. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 02.12.2010. 1. This is defendant's Second Appeal. The present Respondent No.1 had instituted suit for partition and separate possession. The trial Court partly allowed the suit. The plaintiff preferred an appeal. The lower appellate Court allowed the appeal. The present appellants being aggrieved by the same has filed the present Second Appeal. 2. Mr.S.V.Mundhe, learned counsel for the appellant submitted that it was erroneous on the part of the lower appellate Court to exclude property bearing Block No.130. The same is also a joint family property and would be subject 2 S.A.No.327/08 matter of partition. The plaintiff has not included all the properties in the suit and as such suit for partial partition is not maintainable, in absence of bringing all the properties in the suit. The learned counsel submitted that when the suit itself was not maintainable, no relief could have been granted in favour of the plaintiff. 3. Per contra, learned counsel for the Respondent No.1 contended that the lower appellate Court after consideration of all the aspects has rightly passed the order. 4. With the assistance of the learned counsels, I have gone through the judgments. The dispute in the present Second Appeal is in a narrow compass i.e. whether the property bearing Block No.130 can be said to be a joint family property or an exclusive property of the plaintiff. It is undisputed that the said property is purchased in the year 1977 exclusively in the name of the plaintiff. The plaintiff was in service since 1971 as a teacher and had an independent source of income. The Respondents could not state as to from what fund the said property was 3 S.A.No.327/08 purchased. There is presumption of a joint family but there is no presumption that property in the name of an individual though a member of joint family is a joint family property. The defendants could not discharge the burden to show that the said property was purchased from the nucleus of joint family property. There is also nothing on record to substantiate that some other joint family properties were there which were not included. The lower appellate Court has considered this aspect. 5. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.02.12.2010. asp/office/sa327.08 4 S.A.No.327/08