1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND SECOND SECOND APPEAL NO.147 OF 1991 APPEAL NO.147 OF 1991 APPEAL NO.147 OF 1991 Parshuram Deu Bhoir Appellant vs. 1. Kana Deu Bhoir, since deceased by his heirs & legal representatives) & ors. Respondents Mr.Ashok T. Gade i/b.Mr.V.A.Gangal for the Appellant. Mr.Kiran N. Joshi for the Respondents. CORAM : ANOOP V. MOHTA,J. DATED : 28th April, 2008 JUDGMENT: This is an appeal filed by the Appellant-original plaintiff as both the Courts dismissed the Suit for partition of the suit land. 2. On 27.06.1991 on the following substantial questions of law as framed in grounds 2, 10 and 11 which are reproduced below, this Court has admitted the Second Appeal: (1) Both the lower Courts have committed errors of law apparent on the face of the record when the most trusted Defendant No.1-Respondent No.1 herein had himself admitted that all the properties were not 2 partitioned in private partition in the year 1977. It ought to have been held that there was no partition by metes and bounds and the Plaintiff was entitled to get a decree for his 1/3rd share are admittedly in the Joint Hindu Family. (10) What is lost sight is that the Respondent No.1 (original Defendant No.1) never contended in the Written Statement or in his deposition Exhibit 44 that the partial partition though unequal was accepted by the Plaintiff-Appellant. (11) It appears that the lower Courts have made out case for the first Respondent which was not made out by him in Written Statement or in his evidence. 3. First of all, after going through the aforesaid grounds, I find that these are not substantial questions of law. Based upon that, heard the respective counsel. l Therefore, only question in the present matter is whether the findings given by the courts below are perverse? 3 4. After considering the material as well as evidence led by the parties, the trial Court as well as the Appellate Court concurrently held that defendant has proved that in the year 1977 the paddy lands in questions have been partitioned/divided by metes and bounds. There is a clear finding given that the plaintiff was living separately since 1975. One room and the land are in his occupation since he started residing separately. At the relevant time, he had no separate and independent source of income to maintain his own family besides some joint family property after separation. He admits the possession of the said properties and also separation from the family. There is nothing and no justification given by the plaintiff that how he is in possession of the property after separation. Defendant no.1 by his positive evidence along with the witnesses proved the partition of the joint family property. Three other witnesses corroborated him on the point of partition. Therefore, both the Courts are right in rejecting the case of plaintiff by considering the plaintiff’s admission read with the supportive evidence of defendant no.1. The findings, therefore, that the partition is proved by metes and bounds by giving 1/3rd share to each of the members in the family just cannot be overlooked though there is no documentary evidence on record to support oral partition. The parties have acted upon the said 4 partition and are in possession since long back. Therefore, in view of this, in the absence of any other material to interfere with the findings arrived at, I am of the view that there is no case made out to that effect. 5. The view as taken therefore cannot be said to be perverse. There is no substantial question of law involved in the matter. The grounds so raised are not substantial questions of law. In view of this, the present Second Appeal is dismissed. No costs. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]