1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 8/2007 (Dattu Tukaram Bhongale & another VERSUS Mahadeo Tukaram Bhongale (dead) Thr. L.R's (1) Smt. Parvatabai wd/o Mahadeo Bhongale & 6 others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Khajanchi, counsel for the appellant. Mrs. Prabhu, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 06, 2008. Heard the learned counsel for the appellant. By this second appeal, the appellant challenges the judgment and decree passed by the trial as well as the appellate Court in favour of the respondent. The trial Court had decreed the suit filed by the respondent for partition and separate possession of the property. According to plaintiff Mahadeo, he and defendant no.1 Dattu are the sons of one Tukaram. It was the plaintiff's case that the suit property belonged to Tukaram. The other landed properties belonging to Tukaram were already partitioned between plaintiff and defendant no.1 Dattu. The field property bearing survey no.153 was, however, kept by Tukaram for maintenance of himself and his wives. Subsequently, the suit 2 property was partitioned between Tukaram, Kondabai and Sakhubai. The field allotted to the share of Tukaram was separately numbered as field survey no.153/2. During the lifetime of Tukaram, the plaintiff and Tukaram were residing together and cultivating suit field. Tukaram died in or about 15.08.1977. In proceedings under Section 145 of Code of Criminal Procedure, the defendant no.1 was held to be possession of the suit field. According to the plaintiff, since the plaintiff was owner of half of Field Survey no.153/2 which admeasured 2.15 acres, the plaintiff sought partition and separate possession of his share in the suit field. Defendants Dattu and his son Haridas denied the case of the plaintiff and submitted that Tukaram was merely cultivating the suit field with the permission of Zungrabai and Kondabai. It was pleaded by the defendants that Field Survey No. 153 was held by Vithu and his brother Krushna by Patta and they have never transferred any portion of the field to Tukaram. It was also pleaded that revenue entries do not confer any title on Tukaram. In or about the year 1955, Tukaram requested Zungrabai and Kondabai to allow him to cultivate half portion of the land survey no.153 and Tukaram was allowed to cultivate the same. The defendants pleaded that there was no 3 partition of field survey no.153 between Tukaram, Kondabai and Zungrabai and the suit filed by the plaintiff was liable to be dismissed. Both the Courts, after considering the oral as well as documentary evidence on record, came to a conclusion that the plaintiff had succeeded in proving that late Tukaram was the owner of the suit field and the plaintiff was entitled to partition and separate possession of his share in the suit field. The Courts further held on a proper appreciation of the material on record that the defendants had failed to prove that deceased Tukaram was in permissive possession of the suit field. The Courts observed that it was candid enough from the evidence tendered on record that Tukaram was owner of the suit field and the plaintiff and defendant no.1 being two sons of Tukaram had equal share in the field survey no.153/2. The Courts considered the Khasra and Pahani Patrak of the year 1953-54 which showed that Tukaram was in possession of the suit property as Pattedar. The entries made in the revenue record in favour of Tukaram since the year 1953-54 onwards were never challenged either by the defendants or by Kondabai and Zungrabai. In Exh.29, which pertain to the year 1955-56, Tukaram was shown as owner or Pattedar of half portion of field survey no.153. On 4 a consideration of the oral and documentary evidence on record as also the glaring admission of the defendant no.1 Dattu to the effect that the field survey no.153 was partitioned amongst Tukaram, Zungrabai and Sakhubai, the Courts rightly came to a conclusion that Tukaram admittedly had share in survey no.153. Even otherwise, the defendant no.1 did not claim any title in the suit property and claimed to be holding the same through Zungrabai and Kondubai. The entire documentary evidence on record showed that the possession of Tukaram over the property was that of an owner and was not of a permissive nature, as pleaded by the defendants. The extract of the revenue record produced by the plaintiff clearly showed that Tukaram had half share in the field survey no.153. In this background, both the Courts were clearly justified in holding that the plaintiff had half share in the suit property and the suit property was liable to be partitioned. A feeble attempt was made on behalf of the defendants by placing reliance on the judgment reported in AIR 1997 SC 2791 to canvass that the revenue entries do not convey or extinguish title in a party and hence, the Courts ought not have decreed the suit on the basis of the entires in the revenue record. However, in the instant case, the Courts have answered the issue 5 of ownership of Tukaram in favour of the plaintiff not only by considering the revenue record but, by considering the other material evidence including the admission of defendant no.1 Dattu that field survey No.153 was partitioned between Tukaram, Zungrabai and Sakhubai. The revenue entries are also extremely old and have not been challenged by any of the parties till the institution of the suit. In this view of the matter, it cannot be said that both the Courts were not justified in holding that the plaintiff had proved the ownership of Tukaram over the suit property, and therefore, entitled to half share in the same. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE