1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.45 OF 2011 Shri Krushna s/o Bhiva Borkar and another Versus Bhiva s/o Tulshiram Borkar and another _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.S. Buradkar, Advocate h/f Shri N.N. Motghare, Advocate for the appellants, Shri A.M. Kazi, Advocate for the respondents. CORAM : R.M.SAVANT, J. DATED : 15.02.2011. This appeal takes exception to the judgment and decree dated 8th November, 2005 in Regular Civil Appeal No.4/2005, by which the judgment and decree of dismissal of the suit came to be confirmed. 2. The appellants herein are the original plaintiffs. The respondents herein are the original defendant Nos. 1 and 2, who are the parents of the appellants. The plaintiffs had filed the suit claiming partition and possession in respect of two properties bearing Gat No.52 and Gat No. 247, which they claimed to be the ancestral properties. The said share was claimed on the basis that the said properties were bought by defendant No.1-father out of the sale proceeds of an ancestral property, which had come to his share in the partition that had taken place. 2 3. Both the Courts below have concurrently held that the plaintiffs have failed to prove that defendant No.1 has purchased the suit properties out of the sale proceeds of the ancestral properties. Both the Courts below have considered the fact that the ancestral property was sold in the year 1975 and the suit property in question being Gat No.52 was purchased in the year 1986 and therefore, it was incumbent upon the plaintiffs to prove by cogent evidence that the suit properties were purchased out of the funds which defendant No.1-father had got by virtue of the said sale. In so far Gat No.247 is concerned, the Courts below have considered the fact that defendant No.1-father had received compensation to the tune of Rs.26,000/- on account of the death of one of his sons. Both the Courts below have also taken into consideration the fact that defendant No.1 was earning some income out of his bullock-cart as also on cultivating the lands on Batai basis. In the absence of any evidence brought by the plaintiffs on record that the properties were purchased out of the joint family funds, the Courts below were of the view that the plaintiffs were not entitled to the reliefs sought. Both the Courts below have, therefore, concurrently recorded findings of fact as regards the entitlement of the plaintiffs for partition and separate possession. In view thereof, the Second Appeal does not raise any substantial question of law and is accordingly dismissed. JUDGE pma