: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.598 OF 2007 SECOND APPEAL NO.598 OF 2007 SECOND APPEAL NO.598 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.1097 OF 2007 CIVIL APPLICATION NO.1097 OF 2007 CIVIL APPLICATION NO.1097 OF 2007 Vishwas Ganpati Mane ...Appellant V/s. Mangal Hanmant Mane & Anr. ...Respondents Mr.R.A. Thorat, Advocate, for the Appellant. Mr.Vinod Jadhav, Advocate, for the Respondents. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 3RD MARCH, 2008. DATE : 3RD MARCH, 2008. DATE : 3RD MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard learned Advocates appearing for the parties. The appellant is the original defendant and the respondents are the original plaintiffs. The respondents are the purchasers of the suit property under a registered sale deed executed by one Sahebrao Jaysingh Mane. On the basis of the said sale deed, the respondents claimed to have become exclusive owners of the suit property. As there was obstruction by the appellant, a suit for declaration and injunction was filed and the same has been decreed by the Trial Court. The Trial Court held that the respondents are the owners of the suit property. Trial Court passed a decree for possession against the : 2 : appellant. The said decree has been confirmed in the Appeal. 2. The submission of the learned Advocate appearing for the appellant is that the Trial Court has wrongly casted on the appellant the burden of proving that though the property was acquired in the name of Jaysingh, it was the joint family property of Jaysingh and his brothers Ganpati and Raghunath. The appellant is the son of the said Ganpati. 3. The learned Advocate for the appellant placed reliance on the application for amendment of the plaint made by the respondents at Exhibit-126 on 16th February, 1999. He pointed out that by the proposed amendment, the respondents came out with the case that in the partition held in the year 1969, the suit property was allotted to the share of the said Jaysingh. He submitted that though the said application was rejected, what is stated in the text of the proposed amendment will constitute an admission on the part of the respondents of the fact that though the suit property was purchased in the name of Jaysingh, it was treated as a joint family property. He pointed out the findings recorded by the Appellate Court in paragraph No.28 of the Judgment of the : 3 : Appellate Court where reference is to the two partition lists produced by the respondents. He submitted that though a specific ground was taken on the basis of the said application at Exhibit-126 in the Memorandum of Appeal preferred before the 1st Appellate Court, the said ground is not considered by the 1st Appellate Court. 4. I have carefully considered the submissions. From the Judgment of the Appellate Court, it appears that submission based on the said application for amendment at Exhibit-126 was not made at the time of hearing of the Appeal. It is not the case made out in Memorandum of the Second Appeal that the said submission was made and was not considered by the 1st Appellate Court. 5. It must be pointed out here that there was already an order of remand passed by the District Court by framing additional issues. It appears that at no stage any submission was made on behalf of the appellant based on the said application at Exhibit-126. It must be noted here that the alleged admission is in the text of the proposed amendment and not in the body of the application for amendment. The said application for amendment was rejected. : 4 : 6. The suit property was purchased in the name of the said Jaysingh. It appears that the father of the appellant Ganpati never claimed any right, title, interest in the suit property. There are concurrent findings of facts recorded by both the Courts below that the respondents have proved their exclusive title over the suit property and the appellant has failed to prove that the suit property was a joint family property of the appellant. 7. No substantial question of law arises. Second Appeal is accordingly dismissed. 8. In view of dismissal of the Appeal, Civil Application No.1097 of 2007 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]