IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1538 OF 2005. APPEAL NO.1538 OF 2005. APPEAL NO.1538 OF 2005. Shivaji Krishna Patil (Nikam) and another. ... Appellants. Versus. Shankar Krishna Nikam & others. ... Respondents. Shri A.M.Kulkarni for the Appellants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 21st MARCH, 2006. : 21st MARCH, 2006. : 21st MARCH, 2006. P.C.: P.C.: P.C.: 1. Heard the learned Advocate for the Appellant. On 3rd March 2006 the Advocate for the Appellant sought time for filing compilation of relevant documents on record of the trial Court. However, till today the additional paper book is not filed. 2. The Appellants are original Defendants Nos.2 and 3 against whom a decree for partition and separate possession was passed by the trial Court. While passing the decree of partition, the trial Court excluded property bearing Gat No.428/2 after recording a finding that though entire consideration in respect of the said property is already paid, sale deed has not been executed. The Appellate Court modified the decree by holding that the original Plaintiff is entitled to 1/4th share in all the suit properties including the land bearing at No.428/2. : 2 : 2 : 2 : 3. Shri Kulkarni appearing for the Appellants submitted that the Appellate Court could not have passed a decree in respect of Gat No.428/2 only on the basis of the application made by the original Plaintiff at Exh.67 in Appeal for pointing out that Defendants Nos.1 to 3 have purchased the suit land bearing Gat No.428/2 by sale deed in the year 1991. He submitted that most of the suit properties were standing in the name of the Appellants and therefore, the burden was on the original Plaintiff to prove that the properties are joint family properties. 4. I have considered the submissions. There are concurrent findings of fact recorded by the Courts below. The Courts below have found that the original Defendants nos.2 to 4 could not establish that the partition had taken place in the year 1959. The Courts below found that there was sufficient nucleus from which the suit properties could have been acquired. There is no reason to interfere with the concurrent findings of fact. 5. As far as property bearing Gat No.428/2 is concerned, the Appellate Court has found that even prior to execution of the sale deed, the entire consideration was already paid and there was no evidence on record to show that the entire consideration came from the Defendants. In view of this position, the Appellate : 3 : 3 : 3 : Court has passed a decree in respect of the said land after it was pointed out that after the decision the suit conveyance was executed in favour of the Defendants. In view of the concurrent findings of fact no substantial question of law arise. Second Appeal is dismissed. Judge. Judge. Judge.