(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 1010 OF 2005 Namdeo s/o. Bapu Gund, Age : 45 years, Occupation : Agriculture, .. Appellant R/o. Sakat (Bu.), (Original Taluka : Ashti, plaintiff) District : Beed. versus 1. Kisanrao s/o. Bapurao Gund, Age : 60 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. 2. Parubai w/o. Kisanrao Gund, Age : 55 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. 3. Dharmaji s/o. Kisanrao Gund, Age : 55 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. Bapurao Dharmaji Gund (Died) (L.Rs.). (2) 4. Yeshodabai w/o. Rambhau Veohare, Age : 60 years, Occupation : Household, R/o. Dhorje, Taluka : Shrigonda, District : Ahmednagar. 5. Jamnabai Gulabrao Veohare, .. Respondent no.5 Age : 50 years, deleted. Occupation : Household, R/o. Athaad, Taluka & District : Ahmednagar. 6. Thakubai Pandharinath Gunjal, .. Respondent no.6 Age : 26 years, deleted. Occupation : Household, R/o. Athavad, Taluka & District : Ahmednagar. 7. Mankabai (Manakarnabai) w/o. Narayan Maske, Age : 44 years, Occupation : Household, R/o. Dahigaon, Taluka : Ahmedpur, District : Ahmednagar. 8. Nivrutti s/o. Bapurao Gund, Age : 50 years, Occupation : Agriculture, R/o. as above. 9. Pandharinath s/o. Bapurao Gund, Age : 32 years, Occupation : Agriculture, R/o. as above. (3) 10. Lahanabai w/o. Dashrath Berad, Age : 45 years, Occupation : Agriculture, R/o. Limbodi, District : Ahmednagar. 11. Vaijyantabai Kerba Gangarde, .. Respondent no.11 Age : 60 years, deleted. Occupation : Agriculture, R/o. Mandali, Taluka : Karjat, Dist. : Ahmednagar. 12. Chayabai w/o. Sabaji Gaikwad, Age : 40 years, Occupation : Agriculture, R/o. as above. 13. Rajendra Indrabhan Karve, Age : 35 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. 14. Vithal s/o. Dnyandeo Jadhav, Age : 30 years, Occupation : Agriculture, R/o. Daulgaon (Siddhi), Taluka & District : Ahmednagar. 15. Raosaheb s/o. Dnyandeo Jadhav, .. Respondents Age : 21 years, (Original Occupation : Agriculture, defendants) R/o. as above. ....................... (4) Mr. L.B. Pallod, Advocate, for the appellant. Mr. V.D. Salunke, Advocate, for respondent nos.1 to 3. Mr. P.B. VIkhe Patil, Advocate, for respondent no.4 (Absent). Respondent nos.5, 6 and 11 deleted. Respondent nos.7 and 10 served (Absent). Mr. Pravin Sangvikar, Advocate, for respondent nos.8 and 9 (Absent). Mr. V.S. Bedre, Advocate, for respondent nos.12 and 13. Mrs. M. Thube (Mhase), Advocate, for respondent nos. 14 and 15. ........................ W I T H SECOND APPEAL NO. 1111 OF 2005 Namdeo s/o. Bapu Gund, Age : 45 years, Occupation : Agriculture, R/o. Sakat (Bu.), .. Appellant Taluka : Ashti, (Original District : Beed. plaintiff) versus (5) 1. Bapurao Dharmaji Gund, Deceased through L.Rs. : 1/a. Yeshodabai w/o. Rambhau Veohare, Vyavahare, Age : 60 years, Occupation : Household, R/o. Dhorje, Taluka : Shrigonda, District : Ahmednagar. 1/b. Jamnabai Gulabrao Vyavahare, Age : 50 years, Occupation : Household, R/o. Athaad, Taluka & District : Ahmednagar. 1/c. Thakubai Pandharinath Gunjal, .. Respondent no.1/c Age : 26 years, deleted. Occupation : Household, R/o. Athavad, Taluka & District : Ahmednagar. 1/d. Mankabai (Manakarnabai) w/o. Narayan Maske, Age : 44 years, Occupation : Household, R/o. Dahigaon, Taluka : Ahmedpur, District : Ahmednagar. 2. Kisanrao s/o. Bapurao Gund, Age : 60 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. (6) 3. Nivrutti s/o. Bapurao Gund, Age : 50 years, Occupation : Agriculture, R/o. as above. 4. Pandharinath s/o. Bapurao Gund, Age : 32 years, Occupation : Agriculture, R/o. as above. 5. Lahanabai w/o. Dashrath Berad, Age : 45 years, Occupation : Agriculture, R/o. Limbodi, District : Ahmednagar. 6. Vaijyantabai Kerba Gangarde, Age : 60 years, Occupation : Agriculture, R/o. Mandali, Taluka : Karjat, District : Ahmednagar. 7. Parubai w/o. Kisanrao Gund, Age : 55 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. 8. Dharmaji s/o. Kisanrao Gund, Age : 55 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. (7) 9. Chayabai w/o. Sabaji Gaikwad, Age : 40 years, Occupation : Agriculture, R/o. as above. 10. Rajendra Indrabhan Karve, Age : 35 years, Occupation : Agriculture, R/o. Sakat (Bu.), Taluka : Ashti, District : Beed. 11. Vithal s/o. Dnyandeo Jadhav, Age : 30 years, Occupation : Agriculture, R/o. Daulgaon (Siddhi), Taluka & District : Ahmednagar. 12. Raosaheb s/o. Dnyandeo Jadhav, .. Respondents Age : 21 years, (Original Occupation : Agriculture, defendants) R/o. as above. ........................... Mr. L.B. Pallod, Advocate, for the appellant. Mr. P.B. Vikhe Patil, Advocate, for respondent no.1/a (Absent). Mr. V.D. Salunke, Advocate, for respondent nos.1/b, 1/d, 2, 5, 6, 7 and 8 Respondent no.1/c deleted. Mr. Pravin Sangvikar, Advocate, for respondent nos.3 and 4 (Absent). Mr. V.S. Bedre, Advocate, for respondent nos.9 and 10. (8) Mrs. M. Thube (Mhase), Advocate, for respondent nos. 11 and 12. ........................... CORAM : K.U. CHANDIWAL, J. DATE : 6TH APRIL 2010 COURT'S ORDER : 1. Heard the learned Counsel for the appellant and the respondents. 2. Regular Civil Suit No. 34/1985 filed by Namdeo against his father Bapurao and other brothers, sisters, was dismissed on 19th April 1999. Being aggrieved, it was challenged by Regular Civil appeal No. 86/1999 by Namdeo. At the same time, Regular Civil Appeal No. 88/1999 was preferred by Kisanrao, Parubai w/o. Kishanrao and Dharmaji. 3. The plaintiff asserts that there was no partition of the joint family property and sought partition and separate possession against the defendants in respect of the suit property, as referred in plaint paragraph no.1. He accepts that all the properties are not incorporated while filing the suit. It is also (9) transpired that all the necessary parties were also not added by the plaintiff while seeking relief of partition and separate possession. 4. The defendants came with a case that lands Survey Nos. 9/A, 27/AA, 27/EE, 28, 48, 92 and 94 are self acquired properties of them and plaintiff and few other defendants have no right to stake claim or seek partition thereof. It was also contended that the suit is barred by limitation. 5. It is a matter of record, that by virtue of mutation entry no. 158, the plaintiff was allotted 1 Acre 18 Gunthas land, defendant no.2 is allotted 10 and half Acres land, defendant no.3 is allotted 7 Acres 16 Gunthas land, defendant no.4 is allotted 7 Acres 15 Gunthas land. The deceased defendant no.1 was allotted 3 Acres 5 Gunthas land out of Survey No. 10/A. These lands were the ancestral properties of defendant nos.1 to 4. The mutation entry made in the year 1970 elaborate that it was defendant no.1 who had partitioned the land between himself and four sons i.e. plaintiff and defendant nos.2 to 4 in the year 1970. During the course of submission, it is transpired that other properties at village Sakat Khurd, by virtue of revenue entries at Exhibits 150 to 152, are allotted / transferred to the share of plaintiff. The plaintiff apparently was in slumbers for 14 long years to stake claim to the so called joint family (10) properties or to canvass, that the properties were not partitioned by metes and bounds. Passingly, a reference was made, it was only by way of family arrangement, different branches were residing separately. 6. It is transpired that after division of the agricultural fields, there was ample development made by contesting defendants in their group of properties to the knowledge of plaintiff. The mutation entries referred in terms of Section 157 of the Maharashtra Land Revenue Code, 1966, will initially have presumptive value. The presumption needs to be rebutted which unfortunately could not be done by the plaintiff in spite of there being ample opportunities. The plaintiff has not come with clean hands, tried to suppress material aspects, to suit his devices, by process of pick and choose. The courts have found that lands Survey Nos. 9/A, 27/AA, 48, 92 and 94 are purchased after 1970 by the defendant nos.1 and 2. Few properties are even sold by the defendant no.2. In these circumstances, the findings of the courts below, that the properties could not be said to be purchased out of joint family income, but it was self acquired property of defendant nos.1 and 2, cannot be said to be illegal or erroneous finding. The judgment of both the courts does not require or warrant any interference. (11) 7. The Second Appeals sans merit and the same are accordingly dismissed. No costs. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa1010etc