1 35-sa-344-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.344 OF 2010 WITH CIVIL APPLICATION NO.892 OF 2010 Mr. Narayan A. Chavan .. Appellant. V/s. Krishna N. Chavan & Others .. Respondents. Mr. Sachin Gite i/b. Mr. M. S. Karnik, for the Appellant. None for Respondents. CORAM : G.S.GODBOLE, J. DATE : 16th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocate for the Appellant. 2 Respondent No.1 filed Regular Civil Suit No.10 of 1996 filed in the Court of learned Civil Judge, Junior Division, Kankavali for partition and separate possession which has been decreed on 3rd August, 2004. The genealogy indicated in the plaint was not disputed and the same is reproduced in paragraph 2 of the Trial Court Judgment. Fact that 2 35-sa-344-2010.sxw properties described in Schedule A and D were joint ancestral properties was not disputed. The only defence was that properties described in Schedule B and C were the self acquired properties of Bhagoji­ grand father of Appellant. It was claimed that he has purchased the same under Sections 32­G and 32­M of the Bombay Tenancy and Agriculture Lands Act, 1948. No order or Certificate under the said Act was produced. No evidence regarding prior partition was given. The presumption of existence of joint family is there and though there is no presumption that the joint family possesses/ owns joint family property; in view of admitted fact that property in schedule A and D were joint family properties, the entire burden was on the Defendant to prove that the properties in Schedule B and C were self acquired properties. That burden was not discharged by producing documents/ certificate under the said Act of 1948. On that backdrop, the Trial Court held that even the disputed properties are joint family properties and are liable to be partitioned. The correctness of the shares allotted by the Trial Court on the basis of a finding regarding the properties being joint is not disputed. 3 Regular Civil Appeal No.120 of 2004 filed by the Appellant has been dismissed by the learned Principal District Judge, Sindhudurg, Oros on 23rd March, 2010 by giving independent reasons and the learned District Judge has also considered the defence of the Appellant that according to 3 35-sa-344-2010.sxw the Appellant, Bhagoji was not the eldest son of Nana but Bhau was the eldest son of Nana. Even though that claim is to be accepted; the finding about the properties being joint, in the absence of evidence regarding self acquisition; was bound to be recorded and the decree of the Trial Court was bound to be confirmed and is rightly confirmed by the Appellate Court. No substantial question of law arises. 4 Second Appeal is dismissed. 5 As Second Appeal is dismissed, nothing survives in Civil Application No. 892 of 2010, same is also dismissed. (G.S.GODBOLE, J.)