1 SA717/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 717 OF 2009 Vitthal Damu Marathe Since deceased through heirs and Ors. Appellants V E R S U S Kasturabai w/o Pundlik Marathe & Ors. Respondents Shri P.M. Shah, Senior Counsel, instructed by Shri S.P. Shah, Advocate for the appellants Shri P.R. Patil, Advocate, instructed by Shri P.G. Gunale, Advocate for respondent No.1 CORAM : A.V. NIRGUDE, J. DATED : 10th October, 2011 PER COURT : 1. This second appeal challenges the concurrent findings of the Courts below that respondent No. 1 / plaintiff No. 2 had proved that the suit properties are ancestral properties of family of Shivram Vithoba and that she and her mother (deceased plaintiff No. 1) had 50% share in it. The facts leading to this litigation, in short, can be stated as under : 2. The ancestor of this family namely Shivram Vithoba died in 1925. He was survived by his sons Pandu and Bandu. They got three agricultural lands and three houses as ancestral property. It is almost an admitted fact that Bandu was a simpletone. It is also an admitted fact that original plaintiff No. 1, Bandu’s wife left him long back. She and respondent No. 1 / plaintiff No. 2 resided separately and were never considered part of the joint family of Pandu and Bandu. The Courts below held that Pandu and Bandu never partitioned the ancestral property which they received from their father 2 SA717/09 Shivram. Pandu’s branch flourished with three sons of Pandu. Pandu died in 1952, but, after his death, his children Damu and others acquired some of the suit properties including lands and houses. Respondent No. 1 / plaintiff No. 2 and her mother Hausabai, plaintiff No. 1 came with a case that the family members of Pandu in order to deny their right to the suit property caused several partitions between themselves and mutations were taken since 1976 onwards. On the other hand, Bandu died in 1988. The suit was filed in 1990. The defendants who are children and grand-children of Pandu took up a stand that Pandu and Bandu partitioned the property and the suit properties, besides the ancestral ones, were self acquired. The Courts below however rejected their case on facts. 3. The Courts below held that Pandu and Bandu never effected partition between themselves. It was further held that Bandu was member of the joint family till his death i. e. till 1988. The Courts below further held that the source of income for the family was the ancestral lands inherited by Pandu and Bandu which were cultivated by Pandu and his children. 4. The learned senior counsel appearing for the appellants contended that respondent No. 1 / plaintiff No. 2 could not prove that the nucleus of the family property namely the ancestral three lands inherited by Pandu and Bandu was adequate source for acquiring further suit properties. Indeed, this could have been quite contentious issue between the parties at trial stage, because, as said above, the ancestral property that came in hands of Pandu and Bandu were only three agricultural lands and when the suit was filed in 1990, the joint family properties swell to about 14 agricultural lands and 7 houses. The appellants could have certainly pleaded that they had independent source of income for acquiring large number of properties. They in fact pleaded that the properties are self acquired etc, but they did 3 SA717/09 not lead sufficient evidence to prove their case. They recorded evidence of only one witness i. e. original defendant No. 5 Lotan. So, the submissions on this issue at this stage are not quite relevant as this issue has already been decided against the appellants. 5. The second point raised by the learned senior counsel appearing for the appellants is that the suit was not filed within limitation. He tried to point out admission of respondent No. 1 / plaintiff No. 2 given in the pleading that in order to oust them, the appellants and others effected mutation in 1976. He suggested that since respondent No. 1 / plaintiff No. 2 admitted that she was ousted from the suit property since 1976, the suit filed in 1990 was time barred. This however was not an issue between the parties earlier. But, I am not inclined to accept this contention because although the mutations were effected in 1976, Bandu, the father of respondent No. 1 was alive and member of joint family till his death i. e. 1988, and soon after his death, within two years the suit was filed. The Courts below held that the suit was not barred by limitation. The submission made on this point thus does not give rise to a substantial question of law. The appeal should therefore fail. The second appeal stands dismissed. In view of dismissal of the second appeal, C.A. No. 10191 of 2009 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/717/09/10/10/11