1 4-sa-266-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.266 OF 2011 WITH CIVIL APPLICATION NO.1942 OF 2010 Shankarrao N. Shinde (since deceased) through his Legal Heirs & Others .. Applicants. V/s. Balkrishna D. Shinde & Others .. Respondents. Mr. Kamlesh Mali, for the Applicants. Mr. P. B. Gujar, for Respondent Nos. 1to 4. CORAM : G.S.GODBOLE, J. DATE : 21st SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 After hearing the submissions on 7th September, 2011, a suggestion was made that the parties may explore the possibilities of settlement. Today, though the Applicants are ready for the settlement, the 2 4-sa-266-2011.sxw learned Advocate for Respondent Nos.1 to 4 states that they are not ready for any settlement. Hence, arguments on merits are heard. 3 Appellants had filed Regular Civil Suit No.182 of 1988 in the Court of learned Civil Judge Junior Division, Wai for permanent injunction till carrying out partition. The suit was transferred to the Court of learned Civil Judge Junior Division, Medha and numbered as Regular Civil Suit No. 212 of 1989. The contesting Defendants raised the plea of prior partition whereas Defendant No.8 admitted the said claim. The parties led the evidence. The learned Civil Judge Junior Division, Medha decreed the suit on 9th October, 1998 and passed a decree of prohibitory and mandatory injunction. 4 Defendant Nos.1 to 4 had filed Regular Civil Appeal No.381 of 1998 in the District Court at Satara which has been allowed by the learned District Judge­III, Satara by impugned Judgment and Order dated 27th August, 2010 by recording a finding that there was a prior partition, Grampanchayat House Nos.70 and 71 were being separately occupied and separate construction including construction of Gobar Gas Plant had been done. Hence, this Second Appeal is filed. 5 Mr. Mali urged that since the contesting Defendant has raised 3 4-sa-266-2011.sxw the plea of prior partition and since their witness had claimed that there was a written partition allegedly executed in the year 1920 and which he had not been able to produce; the Appeal could not have been allowed and the burden cast on the said Defendants to prove prior partition had not been discharged by them at all and hence, the Judgment of the District Court is perverse. Mr. Mali relied upon the observation contained in paragraph 11 of the impugned Judgment and contended that the said observation is erroneous. 6 I have carefully considered the submission. 7 Assuming that the said observation in paragraph 11 is erroneous; the learned Judge of the District Court thereafter assessed the oral and documentary evidence on record and has reached the conclusion that the properties were separated and held as such and the parties were occupying different properties which evidenced the prior partition. In case of Hindu Co­Parcenary, partition need not be always in writing and, hence, though the Defendants did not produce any written document of partition, the finding recorded by the learned Judge of the District Court based on long standing mutation entries which have presumptive value cannot be said to be a perverse finding, though the observation in the paragraph 11 of the impugned Judgment were not strictly proper. 4 4-sa-266-2011.sxw 8 No question of law arises. Second Appeal is dismissed. 9 Since the Second Appeal is dismissed, Civil Application No. 1942 of 2010 does not survive and same is also dismissed. (G.S.GODBOLE, J.)