1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 342 OF 2009 Sainath s/o Vinayak Takle, Age: 37 years, Occ: Agriculture, R/o. Rohilgad, Tq. Ambad, District Jalna. .. Appellant Versus Eknath s/o Bapuji Takle, Age: 57 years, Occ: Agril., R/o. Rohilgad, Tq. Ambad, District Jalna. .. Respondent WITH CIVIL APPLICATION NO.5218 OF 2009 ... Mr. I.G. Durrani, Advocate holding for Mr. S.K. Barlota, Advocate for appellant. Mrs. T.V. Adhav, Advocate for respondent. ... CORAM : V.R. KINGAONKAR, J. DATE : 25TH NOVEMBER, 2009. PER COURT : . Heard Counsel for the parties. 2. The appellant is the original defendant. He lost legal battle in both the Courts below. 2 The respondent (plaintiff) filed suit (R.C.S. No. 02/2004) for recovery of possession in respect of the suit land alleging that he purchased the same by virtue of registered sale deed dated 07-05-1970 from its previous owner by name Natha Khanduji Takle. He asserted that he was in continuous possession from the date of purchase. He further asserted that the Government acquired 85 Ares land out of the suit property for public purpose and rest of the land was still in his possession as a owner. The defendant, however, manipulated false revenue entry in his favour and dispossessed him. Consequently, he sought recovery of possession. According to the defendant, i.e. appellant, the sale deed was obtained in the name of plaintiff because he was the elder son of deceased Bapuji Takle, who was the Manager of Joint Hindu Family. He contended that the suit land was purchased by utilising the joint family nucleus and was therefore, part and parcel of the Joint Hindu Family property. He asserted that in the 3 year 1972 there was oral partition amongst members of the Joint Hindu Family, in which the suit land was allotted to the share of his father. His father was in possession of the suit land in his own rights and therefore, he continued to remain in possession on account of family partition. 3. The trial Court held that the plaintiff became owner of the suit land on account of his purchase and the defendant failed to establish the partition effected in 1972, as well the allegation that the suit land was part and parcel of the Joint Hindu Family property. Consequently the suit was decreed. The First Appellate Court maintained the finding rendered by the trial Court and dismissed the appeal. 4. On behalf of the appellant, learned Counsel would submit that issue was not properly framed in respect of the nature of acquisition of the suit land and whether it was by applying Joint 4 Family nucleus or not. He would submit that the trial Court and the First Appellate Court committed patent error while discarding the testimony of the grandmother of the plaintiff. It is argued that the oral partition of 1972 should have been accepted as a fact in view of the evidence tendered by the appellant. I find it difficult to countenance the argument. It it is pertinent to notice that after the acquisition of the land by the Government to the extent of 85 Ares, the compensation was received by the plaintiff. The Mutation Entries were not carried out immediately of 1972 so as to give effect to the story of the partition and allotment of the suit land to the share of father of the appellant (defendant). There is no reliable evidence to show that his father was in exclusive possession of the suit land since 1972 onwards on basis of the oral partition. But Mutation Entry in the name of the plaintiff and the subsequent entries in the 7/12 record till the year 1998 indicated that he was in 5 actual possession. The appellant did not explain as to how the plaintiff alone received the compensation in respect of 85 Ares land which was acquired by the Government and why no objection was raised at the relevant time. The Courts below found that grandmother of the parties was residing with the appellant and her testimony was discrepant with the story pertaining to the period of partition. It is held that the old woman was under thumb of the appellant and could have, therefore, attempted to support his case. The matter pertaining to appreciation of evidence cannot be agitated in the Second Appeal. Considering the limited scope of Second Appeal as envisaged in Gurdev Kaur & Ors. v. Kaki & Ors. A.I.R. 2006 S.C. 1975, the concurrent findings of fact cannot be disturbed in the exercise of Second Appeal jurisdiction. Hence the appeal is dismissed. 5. In view of the final disposal of the Second Appeal, nothing survives in the present Civil 6 Application and same is also dismissed accordingly. [ V.R. KINGAONKAR, J.] sut/NOV09/sa342.09