IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.19 OF 2004 Krishna Dhondu Bhavekar & Ors. .. Appellants Versus Dattatraya Kondu Bhavekar & Ors.. Respondent Mr.S.D.Patil for appellants Mr.P.K.Hushing for respondent No.1 CORAM: R.M.SAVANT, J. DATE : 15th September 2008. P.C. . This appeal takes exception from the judgement and decree dated 8th October 2003 passed by the Vth Ad-hoc Additional Dist.Judge confirming the judgement and decree passed by the Trial Court (Joint Civil Judge, Junior Division, Pune). The appellants herein are the original defendants in the suit filed by the respondent No.1 herein for partition and separate possession of his undivided share in the suit properties. 2. Both, the plaintiff and the defendants claim their lineage to one Krishna. The said Krishna had two sons, Dhondu and Kondu. Plaintiff is from the branch of Kondu whereas the defendants are from the branch of Dhondu, who was the elder son of said Krishna. According to the plaintiff, his uncle Dhondu expired on 4th December 1964 whereas his father Kondu expired on 30th June 1965. Wives of the said two brothers predeceased them. On the death of the said Krishna, the properties left behind him were inherited and succeeded by his sons, Dhondu and Kondu. There was a joint Hindu family of Dhondu and Kondu and Dhondu was the Karta of the said family. The properties were entered in the name of Dhondu as karta of the said family. It was the case of the plaintiff that though the plaintiff and defendants all have got undivided shares, defendant No.1 Krishna was trying to dispose of, some of the suit properties for which a public notice was given by him in a local newspaper on 9th February 1996. The plaintiffs along with some of the defendants replied to the said notice. In the said reply, they indicated to the defendant No.1 that they are going to file a civil suit in respect of suit property. It the further his case that he is cultivating the suit land bearing S.Nos.201/7, 201/8, 209/2, 214, 215 and 1/3rd share in the suit land S.No.217. It is further the case of plaintiffs that he has improved the said land by incurring huge expenditure. Since the defendant No.1 was seeking to alienate the land, that the plaintiff has filed the said suit for partition and separate possession, claiming half share in the suit land. 3. Defendant Nos. 1 to 3 through their common written statement resisted the suit claim of the plaintiffs. It was the case of the defendants in the written statement that the suit properties are self-acquired properties of Dhondu who was father of defendant Nos. 1 to 4 and that the plaintiff has no concern whatsoever with the said suit land. It was further case of the defendants that some of the suit lands were given to the plaintiff for his maintenance as he had no source of income. It was further their case that in 1923 both Dhondu and Kondu separated. It was further their case that during 1954-55, father of the plaintiff and defendants died and the financial condition of the present plaintiff being very weak and he had no source of income, defendant No.1 allotted the suit land as mentioned above along with 1/3rd share in S.No.201/7 to the plaintiff for cultivation and for his maintenance and that the plaintiff taking dis-advantage of the said situation had on 3-5-1961 got recorded in the revenue record that the said properties are ancestral properties. 4. Defendant Nos. 5 to 7 in their written statement admitted the suit claim so also the legal heirs of defendant No.2 who are from the branch of Dhondu. Insofar as defendant No.3 is concerned, he did not file W.S. and, therefore, was not subjected to any examination. 5. The parties went to trial. The trial court on the basis of the oral and documentary evidence, which was in the form of 7/12 extracts, came to a conclusion that Dhondu and Kondu were doing joint business and hence they were joint in all respects. The trial court also took into consideration the 7/12 extracts wherein the names from both branches i.e. of Dhondu’s and Kondu’s were recorded as the Lrs. of Dhondu. The trial court also recorded a finding that Dhondu was the Karta of the family and hence properties in question were entered in his name. The trial court, therefore, decreed the suit and granted 1/2 share to the plaintiff and the defendant Nos. 5 to 7 out of the suit properties. 6. The defendant Nos. 1 to 3 aggrieved by the decree of partition and separate possession passed by the trial court filed Regular Civil Appeal No.108 of 2001. The learned Ad-hoc Dist.Judge by his judgement and order dated 8th October 2003 dismissed the appeal and confirmed the decree passed by the trial court. The appellate court confirmed the finding insofar as the jointness of Dhondu and Kondu was concerned and held that though the parties were in possession of lands separately, they were so cultivating the lands separately pursuant to the family arrangement and in fact no partition had taken place. 7. It is sought to be contended on behalf of the appellants, relying upon the mutation Entry No.478 dated 3rd May 1961, that the fact that partition had taken place in respect of properties is evidenced by the said mutation entry. It is further sought to be contends on behalf of the appellants that once the trial court having come to a conclusion that there was no nucleus available for purchase of property, the trial court has wrongly placed the burden on the defendants to show that the suit property was self-acquired properties of the defendants. Reliance is sought to be placed on the judgement of the Apex Court in the case of G.Narayana Raju (dead) by Lrs. Vs. G.Chamaraju and Ors., reported in A.I.R. 1968 S.C. 1276, so also the judgement in the case of Mudigowda Gowdappa Sankh and Ors. Vs. Ramchandra Revgowda Sankh (dead) by Lrs. reported in A.I.R. 1969 S.C. 1076 and a Division bench Judgement of Orissa High Court in the case of Dukhi Dibya and Ors. Vs. Landi Dibya and Anr., reported in A.I.R. 1978 Orissa 182 to buttress the aforesaid submissions. 8. In my view, the said submissions are misfounded. In fact before the trial court it was the case of the appellants that plaintiff has wrongly got recorded the said mutation entry No.478 on 3rd May 1961 to the effect that the suit properties are the joint family properties. If that be so, it would not lie in the mouth of the defendants now to rely upon the said document wherein there is a stray mention that the properties have been entered in separate names as per the partition. Insofar as the next submission of the appellants is concerned, the trial court has recorded a finding of fact that Dhondu and Kondu were joint and were carrying on business of goldsmith jointly and, therefore, the properties purchased by and in the name of Dhondu were of the joint family. The said finding is also recorded on the basis of other relevant record viz., 7/12 extracts which are dating prior to the filing the suit. 9. Pertinently, in a proceeding filed by one Sable being Regular Civil Suit No.2034 of 1994 in the Court of Civil Judge, Junior Division, Pune wherein some of the suit properties were the subject matter, the defendant No.1 Krishna filed his written statement stating that the property is purchased by Dhondu and on his death were partitioned and allotted to Dattu Kondu. The appellate court, therefore, on the basis of the said written statement came to a conclusion that previously also it was the contention of the defendant No.1 that the said properties were the joint family properties. 10. Both the courts below have recorded findings of fact on the basis of documentary and oral evidence that was before them and have concurrently held against the plaintiff, the second appeal, in my view, does not raise any substantial question of law. It is accordingly dismissed. In view of dismissal of this second appeal civil applications, if any, do not survive and are disposed as such. (R.M.Savant, J)