1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.638 OF 2010. Ramdas S/o Munjaji Kadam and another ... Appellants. Versus Munjaji S/o Yaknaji Kadam ... Respondent. ... Mr.S.V.Suryawanshi, advocate for the appellants. ... CORAM : S.V.GANGAPURWALA,J. Date : 30.09.2010. PER COURT 1. This is plaintiffs' Second Appeal. The plaintiffs had instituted suit for declaration that the suit property bearing Gat No.135 admeasuring 2 hectares 78 ares is a Hindu 2 undivided family property. Both the Courts have dismissed the suit. The appellants/original plaintiffs have assailed the said order before this Court. 2. Mr.S.V.Suryawanshi, learned counsel for the appellants contended that both the Courts have misdirected themselves on the aspect of partition. According to him, merely mutation entries can not be an ipso facto proof of partition. According to him, there is presumption of continuance of a joint family and a joint family property. He further submits that mutation entries are made only for fiscal purposes and they can not prove partition. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Mahadu Appa Wanjole Vs. Laxman Veerappa Wanjole and others" 2008 (5) Mh.L.J.680 to buttress his submission that mutation entry is not a conclusive proof of partition. Mr.Suryawanshi, learned counsel also relies on the judgment of the Apex Court in the case of "Chinthamani Ammal Vs. Nandagopal Gounder and another" (2007) 4 3 Supreme Court Cases 163, to substantiate his contention that the party raising plea of partition has to prove the same since in law there is a presumption in regard to continuance of a joint family. Even separate possession of a portion of property by co-sharers itself would not lead to presumption of partition. Mr.Suryawanshi, learned counsel also relies on the judgment of the Apex Court in a case of "Kalyani (dead) by L.Rs. Vs. Narayanan and others" AIR 1980 Supreme Court 1173, to contend about the essentials of partition and he submits that partition amounts to complete disruption of the status and it has to be by definite and unequivocal indication to separate in interest and in right. 3. According to him, the defendant is not in a position to show that in 1980 there was a disruption of the joint family and its property, merely mutation entries were effected which at the most can be said to be family arrangement but not a partition. The learned counsel further contended that the defendant is having many vices 4 and to safeguard the property, the suit was filed. Even P.W.2 who is resident of the same village has substantiated the fact that defendant has vices and further no partition has taken place. 4. Partition, no doubt amounts to a disruption of the joint family and the property. There has to be an intention to separate. The judgments of the Apex Court in a case of "Kalyani (dead) by L.Rs. Vs. Narayanan and others" and "Chinthamani Ammal Vs. Nandagopal Gounder and another" cited supra need not require further debate. The said principles can not be disputed. As far as the judgment of the learned Single Judge of this Court in a case of "Mahadu Appa Wanjole Vs. Laxman Veerappa Wanjole and others" referred supra is concerned, it deals with the factum that mutation entry is not a conclusive proof of partition. The judgments of this Court or the Apex Court can not be read as an Euclid's theorem, they will have to be read in the context in which they are delivered. In the present case, it is not disputed that along with this 5 suit land Gat No.135, the joint family also had other agricultural lands bearing Gat No.8 and Gat No.163. It is also a matter of record that in the year 1980 there were mutation entries bearing Nos.174, 175, 514 which are at Exhs.35 to 38. At that time, the plaintiff No.1 was allotted 67 ares land from Gat No.63 and 84 ares land from Gat No.8, totally admeasuring 2 hectares 51 ares. Thereafter, plaintiff No.2 was allotted l hectare 43 ares land from Gat No.96 and l hectare 42 ares land from Gat No.6, totally admeasuring 2 hectares 85 ares and the third brother Sattaji was allotted 67 ares land from Gat No.63 and l hectare 60 ares land from Gat No.8, totally admeasuring 2 hectares 50 ares land and the defendant was allotted the suit property. It is also not disputed that thereafter, plaintiff No.2 Madhav sold 40 ares land which was allotted to him to one Ramchandra and another 40 ares land to Nandabai. The said transactions are after the said properties were allotted and since then the parties are exercising their rights. As per the said allotment, mutation entry No.174 was sanctioned in favour of the plaintiff No.1. 6 Mutation entry No.175 was sanctioned in favour of plaintiff No.2 and mutation entry No.414 was sanctioned regarding partition between plaintiff Ramdas and deceased Sattaji. Not only this, the parties have acted upon as can be seen that plaintiff Madhav sold some part of the property allotted to him. Even if the argument of Mr.Suryawanshi, learned counsel is accepted that the same was only a family arrangement and not a partition, still, a long standing family arrangement tantamounts to partition as has been held by the Apex Court in case of "Digambar Adhar Patil Vs. Devram Girdhar Patil (died) and another" reported in AIR 1995 Supreme Court 1728, wherein the Apex Court has held that for factum of proof of partition between two brothers entries in record of rights maintained in official course of business is relevant piece of evidence. It was further observed that even family arrangement is enough to effectuate the partition between coparceners and to confer a right to a separate share and enjoyment thereof. In the present case, it is not merely the mutation entries but thereafter the parties have 7 exercised their rights and have acted upon the said mutation by dealing with the property allotted to them. 5. In light of the above facts and circumstances, the Courts have rightly come to the conclusion. The Second Appeal being sans merit is dismissed. However, there shall be no order as to costs. 6. In view of dismissal of Second Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa63810 8