1 SA 534.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.534 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.R.M.Deshmukh, Advocate for the appellant. Mrs.C.S.Deshmukh, Advocate for Res.Nos.1 to 3 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 02/05/2011 PER COURT : 1. This is an Appeal by the original defendant no. 2. The present respondents/plaintiffs had filed Suit for partition and separate possession, so also for maintenance and recovery of Rs. 1,00,000/- ( Rupees One Lac only ) towards expenses of repairing part of CTS No. 2060. The trial Court partly decreed the Suit to the extent of the relief of partition and separate possession and dismissed the Suit regarding the relief of maintenance and 2 SA 534.2010 recovery. Aggrieved thereby the defendant no. 2 preferred Appeal before the District Court, so also, the plaintiffs filed cross objection. The District Court dismissed the Appeal filed by the plaintiffs, so also the cross objection filed by the defendant no. 2. Aggrieved thereby, the defendant no. 2 has filed the present Second Appeal. 2. Mr. R.M.Deshmukh, the learned counsel for the appellant submits that the defendant no. 2 had specifically pleaded and led evidence to the effect that property bearing CTS No. 2060 is not an ancestral property. The same has been received by the defendant no. 1 from his maternal side and as such the same would not partake the character of an ancestral property. For the said purpose, the learned counsel relies on the Judgment of the Privy Council in the case of Muhammad Husain Khan and others V/s Babu Kishva Nandan Sahai reported in AIR 1937 Privy Council 233. According to the learned counsel, it was pleaded by the defendants about the acquisition of the said property and the flour mill is the part and parcel of the said property CTS No. 2060. It was not required to be differently pleaded about the said flour mill. As such, according to the learned counsel, the observations of the District Court in para no. 20 of the Judgment are erroneous. The 3 SA 534.2010 learned counsel further contends that there is no presumption that the property belonging to joint family is a joint family property. 3. Per contra, Mrs. C.S.Deshmukh, the learned counsel for the plaintiffs submits that the relationship between the parties is undisputed. The plaintiffs have come with the specific case that CTS No. 2060 and 1620 are the joint family properties and when the defendant came with a specific case that CTS No. 2060 is the self acquired property of defendant no. 1, heavy burden lies upon them to prove the said fact. But, the defendant no. 1 did not step into witness box to substantiate his claim. Nothing is brought on record that defendant no. 1 was not capable of giving evidence. As such, adverse inference requires to be drawn. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 5. The proposition as put-forth by the learned counsel for the appellant relying on the Judgment of the Privy Council in the case of Muhammad Husain Khan & others V/s Babu Kishva Nandan Sahai referred supra that if the property is received from maternal side, the same would not be the 4 SA 534.2010 ancestral property, does not require any debate. The defendant no. 2 came with a specific case that CTS No. 2060 has been received by the defendant no. 1 from the maternal side, but, has failed to lead any evidence in that regard. The Courts have observed that there is no evidence to show that how the suit property came to the mother of Yamunabai from her father nor the defendant could produce on record any evidence to show that CTS No. 2060 was owned by one Tulsibai, the mother of Yamunabai. 6. In absence of any evidence in this regard, both the Courts relying on oral evidence have arrived at a possible conclusion. More over, the defendant no. 1 has not stepped into the witness box. Mere old age would be no ground to dispel with the proof and an adverse inference is required to be drawn as the defendant no. 1 who was the best witness could have deposed about the acquisition of the said property and has refrained from stepping into the witness box. 7. In light of the above, both the Courts on appreciation of evidence have arrived at a possible conclusion. The Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 5 SA 534.2010 8. In view of dismissal of the Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 534.2010