1 sa587­10 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.587 OF 2010 Devu Hari More .. Appellant V/s. Bhikaji Sambhaji More & Ors. .. Respondents ..... Mr. Sanskar Marathe for the appellant. Mr. S. M. Railkar for respondent No.1. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 16, 2011. P.C.: Heard the learned counsel appearing for the appellant. Original appellant is the first defendant in a suit filed by the first respondent for partition. The trial Court dismissed the suit by holding that the first respondent has failed to prove that the suit properties are joint family properties. The Appellate Court has interfered and has passed a decree for possession. 2. The first submission of the learned counsel appearing for the appellant is that all along the suit properties stood in the name of the father of the appellant Hari and for the years together entries in the Revenue Record were not challenged by the first respondent. He submitted that as the documentary evidence shows that the suit property is exclusive property of Hari, the burden to prove that it was a joint family property was 2 sa587­10 on the first respondent. He submitted that the finding recorded by the Appellate Court is perverse. He submitted that even if the said finding is correct, the same does not establish that Hari was not the owner of the property in question. He submitted that the Appellate Court has committed an error by relying upon a notice issued by the advocate for the appellant in as much as the author of the notice namely the said advocate was not examined. Therefore, the admissions in the notice cannot be treated as admissions of the appellant. 3. I have given careful consideration of the submissions. In paragraph No.18 of the Judgment of the Appellate Court, a finding of fact has been recorded that the common ancestor of the parties Sambhji More died in the Gram Panchayat House No.28. The Appellate Court has noted an admission of the appellant in the cross­examination that his great grand father Surya More had an house in the village. It is noted by the Appellate Court that the appellant is residing in a part of the house No.28 and his father has also died in the same house. Therefore, a finding of fact is recorded that House No.28 is the ancestral property of the plaintiff and the appellant. Thus, what has been established that there was an ancestral property available. Thus, the existence of nucleus has been established. As far as exclusive possession of Hari is concerned, the Appellate 3 sa587­10 Court referred to the admission of the appellant that he was unable to tell in the cross­examination in what manner Hari acquired the property in question. 4. After finding that there was an ancestral property in existence, burden is rightly put on the appellant by the Appellate Court to prove that the property stood in the name of Hari was his self acquired property. The said burden was not discharged. 5. As far as the notice is concerned, it is admittedly issued by the advocate for the appellant in which the suit properties have been referred to as joint family properties. Once, it was an admitted position that notice was issued by the advocate of the appellant, it was for the appellant to establish that the notice was issued by the advocate without his instructions. 6. Hence, it is not possible to interfere with the finding of fact recorded by the Appellate Court that the suit property was a joint family property. 7. No substantial question of law arises. Appeal is accordingly dismissed. (A.S.OKA, J.)