1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 45/2006 (Gumphabai Baburao Koche Vs. Bhagwant Onkar Gondole & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. Abhijit Deshpande, Adv. For the appellant. Mr. D.P. Jaiswal, Adv. For the respondents. CORAM : Smt. Vasanti A. Naik, J. DATED : 29 th JULY, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. The plaintiff filed a suit for partition and separate possession of her share in the dwelling house which belongs to ancestors of the family. Khakanu, Baliram and Tulsiram are the sons of one Kisan. Khakanu had three sons; Motiram, Pandurang and Onkar. The defendant nos. 1 and 2 are the son and daughter of Onkar. The other defendants are the widow and the children of Motiram. Gumphabai, the plaintiff is the daughter of Pandurang. It was the case of the plaintiff that son of Baliram, by name Mulya, had predeceased Khakanu and Baliram. According to the plaintiff, Tulsiram had one agricultural field which was his self-acquired property. It was further pleaded by the plaintiff that 2 plaintiff's father Pandurang had purchased one plot by a registered sale deed. It was then pleaded that the suit property, the dwelling house, was the ancestral property of Khakanu and Baliram and hence the plaintiff was entitled to her share in the same. The defendants denied the claim of the plaintiff and further denied that Pandurang had purchased the plot of land and that a bequest of agricultural field was made by Tulsiram in favour of Pandurang. It was pleaded by the defendants that after the death of Pandurang, there was a meeting of the family members and in that meeting, the plaintiff Gumphabai had agreed to give up her share in the suit property i.e. dwelling house and in stead she was allotted a plot and an agricultural land which belonged to Tulsiram. The defendants, therefore, pleaded that the plaintiff was not entitled to seek a share in the dwelling house. The defendants further pleaded that the plaintiff was not entitled to institute a suit for partition in respect of the dwelling house under the provisions of Section 23 of the Hindu Succession Act. The defendants sought for the dismissal of the suit. The trial Court considered the evidence on record to hold that the plaintiff was entitled to partition and separate possession of her share in the 3 suit property and that the defendants had not succeeded in proving that the field property and the plot originally belonged to Tulsiram and the plaintiff had surrendered her share in the suit house by accepting the field and the plot in lieu thereof. The trial Court held that the plaintiff was entitled to 1/3rd share in the dwelling house. In an appeal preferred by the defendants against the judgment passed by the trial Court, the first appellate Court, on a proper appreciation of the evidence on record, arrived at a finding that the field property was not the exclusive and self acquired property of Tulsiram and the plaintiff did not become the owner thereof in view of the bequest made by Tulsiram in favour of her father Pandurang. The Court further held that the plaintiff failed to prove that the open plot was the self acquired property of Pandurang. The first appellate Court held that the plaintiff had not succeeded in proving that Tulsiram had sufficient income to purchase the agricultural property. The first appellate Court recorded a finding that the field property and the house were the joint family properties and the defendants succeeded in proving the family arrangement which was effected in the meeting held by the family members after the death of Pandurang. The first appellate Court came to a 4 conclusion that the plaintiff had taken a field and an open plot belonging to the joint family and had relinquished her right in the house property. According to the first appellate Court, the partition was proved by the defendants. The first appellate Court, therefore, dismissed the suit of the plaintiff by allowing the appeal. I have perused both the judgments. The first appellate Court, on a re-appreciation of the evidence on record had recorded a categorical finding that the plot and agricultural fields were joint family properties. There was no evidence on record to show that Pandurang had purchased the plot from his separate income. The appellate Court after re-appreciating the evidence rightly held that the defendants proved the partition. Since the findings recorded by the first appellate Court are pure findings of facts, they do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP