sa259.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.259 OF 2011 DATTA NAROJI SAWANDKAR ... APPELLANT. VERSUS GANGUBAI NAROJI SAWANDKAR AND ORS. ... RESPONDENTS. ... Advocate for Petitioners : Mr. Salunke Sudarshan J. ... CORAM : S.S. SHINDE,J. 25th NOVEMBER, 2011. PER COURT: 1. Heard learned Counsel for the appellant. 2. This second appeal takes exception to the judgment and order 25th October, 2010 passed by the District Judge-1, Basmathnagar in RCA NO.8/2007. 3. By the impugned judgment and order, the District Judge has partly allowed the appeal filed by sa259.11 2 the appellant herein, thereby declaring that the plaintiff is having 1/5th share in the land, so also each of the defendants No.1 to 4 has 1/5th share. 4. It is the contention of the learned Counsel for the appellant that the properties are ancestral properties. There are long standing entries which show possession of the appellant and, therefore, the Courts below should have taken into consideration this aspect including the long standing mutation entries in the name of the appellant. The learned Counsel for the appellant vehemently argued that the case of the plaintiff should stand on the evidence led by the plaintiff and by relying upon the admissions or evidence of the defence, no suit can be allowed. He further submits that on the stray admission of the defendant No.1, the suit has been allowed by the trial Court. The appellate Court, without appreciating the evidence brought on record and the contentions of the appellant, has partly allowed the appeal. Therefore, according to the learned Counsel for the sa259.11 3 appellant, this second appeal deserves consideration. He placed reliance on the reported judgment in the case of Bhaurao Ganpat Datir vs. Ganpat Vithoba Datir (deceased) through L.Rs. [1996(1) B.C.J. 231] and submitted that the plaintiff cannot succeed on the weakness of the defence case. 5. At the outset, it is relevant to mention that the original plaintiff Gangubai is real mother of the defendants No.1 to 4. The trial Court decreed the suit and held that the plaintiff and defendants No.1 and 2 are entitled for 30 paise share in the suit property and defendants No.3 and 4 are entitled have five paise each. The contention of the appellant that so far as the case of the plaintiff should stand on its own evidence and not on the evidence or stray admissions given by the defence is concerned, it is to noted that the admissions given by the defendant No.1 i.e. appellant sa259.11 4 herein go to the root of the matter. The defendant No.1 has specifically admitted before the Court that when his father died, at that time, there was no amount in bank or gold. He further admitted that his mother was not given any share in the partition between brothers. Similarly, his witnesses, in their cross-examination, have admitted that at the time of partition, the plaintiff was not given amount or gold and therefore, there was no talk in the said meeting about the share given to her. 6. The next submission of the learned Counsel for the appellant that long standing entries are in his name and that should have weighed with the courts below while deciding the suit or the said entires should have formed basis for the decision of the suit, cannot be accepted. As a family arrangement, mutation entries are in the name of member of the joint family. That will not decide the share in the property. Therefore, that cannot form sole basis of the suit. In my considered view, the Courts below sa259.11 5 have properly appreciated the evidence on record and there are concurrent findings of facts and the original plaintiff is mother of defendants No.1 to 4. 7. In that view of the matter, this second appeal does not raise any question of law, much less, substantial question of law. Second Appeal is devoid of merit and the same stands dismissed. [ S.S. SHINDE ] JUDGE. ... PLK/*