IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1037 OF 2005 WITH CIVIL APPLICATION NO. 1067 OF 2006. Garturde John Bapista & Ors. ..... ..... ...Appellants. V/s Janifer Gregory Miranda.... ..... ..... ...Respondent. Mr.N.V.Gangal, Adv. for the appellants. Mr.A.A.Kumbhakoni, Sr. Adv. I/by by Mr.A.M.Kulkarni, Adv. for the respondent. CORAM: A.P.DESHPANDE, J. 10th FEBRUARY, 2009. PC: The appellants are the original defendants whereas the respondent is the original plaintiff. The appellant No.1 is the mother whereas other appellants are children of appellant No.1. Respondent No.1 who is daughter of appellant No.1 instituted the suit for partition and separate possession of 1/5th share in the suit property which comprises of open land and house constructed thereon. The respondent-plaintiff filed the suit based on assertion that the plaintiff is the joint owner of the property along with the present appellants as the property was purchased by her father some time in the year 1985 in the name of all the parties to the suit and thus she claimed 1/5th 1 share. In the written statement filed by the present appellants a specific case is tied to be made out which is to the effect that though the property had been purchased in the name of all the parties to the suit jointly, the same was in fact purchased by father of appellant No.1 and at the time of purchase of property her sons and daughters were minor. Thus the dispute really pertains to the question as to whether the property was purchased by the husband of the appellant No.1 in the name of the appellants and the respondent or was the property purchased by father of the appellant No.1. Both the Courts below have categorically held that the property had been purchased by husband of the appellant No.1 in the name of all the parties and for their benefit. The best person to depose in regard to defence raised by the appellants about purchase of property from the funds provided by her father would be appellant No.1 herself more so in view of the fact that according to appellant No.1 all other parties were minor when the property was purchased. She has chosen not to step into witness box. Having regard to the fact that since the year 1958 till date the property stands in the name of all the parties to the suit jointly each one has been found to be the owner to the extent of 1/5th share therein. On appreciation of oral and documentary evidence it has been held by the courts below that each of the appellants and the respondent have 1/5th share. One of the crucial circumstance relied upon the courts below is the declaration made by the present 2 appellants and the respondent to the authority under the Urban Land Ceiling Act and consequent order passed by the authority in that regard. The entire property has been released in favour of the appellants and the respondent as the contention of the parties was accepted by Deputy Collector that appellants and the respondent are the joint owners and hence the property held does not exceed the ceiling limit. The appellants and the respondent have represented during the proceedings under the Urban Land Ceiling Act that they have 1/5th share each in the property and thus acting on the said representation an order has been passed. The Court below has rightly held that the appellants cannot be permitted to blow hot and cold at the same time. The appellants would be estopped from contending that the declaration/representation made by them in the proceedings under the Urban Land Ceiling Act would not bind them. Seen from all the angles an inescapable conclusion has been reached by the court below that the property sine the date of purchase stands in the name of parties jointly and thus is jointly owned. Perused the judgment impugned in the appeal. Same takes correct view of the matter. Appellants have utterly failed to substantiate their contention that the suit property was purchased from and out of funds made available to the appellant No.1 by her father. As stated herein above appellant No.1 has not deposed. The other evidence hardly reposes any confidence. No interference is called for. The appeal does not involve any substantial question of law for consideration. Hence appeal 3 stands dismissed. In view of disposal of appeal Civil Application No. 1067/06 does not survive and the same also stands disposed of. 10.2.2009. 4