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.363 OF 2006 APPEAL NO.363 OF 2006 APPEAL NO.363 OF 2006 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO.1572 OF 2007 APPLICATION NO.1572 OF 2007 APPLICATION NO.1572 OF 2007 IN IN IN SECOND SECOND SECOND APPEAL NO.363 OF 2006 APPEAL NO.363 OF 2006 APPEAL NO.363 OF 2006 Gorakh Rau Kumbhar ..Appellant/Applicant. Versus Shamrao Rau Kumbhar ..Respondent. Shri A.A.Kumbhakoni with A.P.Kulkarni for the Appellant/Applicant. Shri T.S.Ingale for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th February, 2008. : 12th February, 2008. : 12th February, 2008. P.C.: P.C.: P.C.: 1. Heard advocate appearing for the appellant. The appellant is the original defendant in a suit filed by the respondent. The appellant and respondent are the real brothers. 2. According to the case of the respondent, House No.238 was owned by the Rau, the father of the parties to the appeal. The said House No.238 were allotted CTS Nos.747 to 752. According to the case of the respondent, there was an oral partition amongst the respondent, the appellant and their brother Dattu. According to the case of the respondent, in the partition property bearing CTS No.751 was allotted to the appellant-defendant alongwith open space bearing CTS No.749. According to the respondent, CTS No.750 was : 2 : 2 : 2 : allotted in partition to Dattu. According to the respondent, CTS No.752 alongwith CTS No.748 was allotted to him. His case is that CTS No.747 was kept in common. According to the case of the respondent in terms of the partition, sanads were issued to the three brothers. The case of the respondent is though the appellant was in possession of CTS No.752, he had assured to deliver the said property to the respondent. As the appellant failed to deliver the possession, the respondent filed a suit for possession. 3. The defence of the appellant was that there was never a partition of the larger property. His case is that after demise of Dattu, his son of purchased eastern one third share of Dattu from the widow and son of Dattu by a registered Sale Deed. His case was that though the said Sale Deed describes the property subject matter of sale as CTS No.750, his son purchased CTS No.751 and CTS No.752. 4. The respondents stepped into witness box. However, the appellant did not step into witness box. The trial Court accepted the case of prior partition made out by the respondent and passed a decree for possession in favour of the respondent. In appeal, the said decree has been confirmed. : 3 : 3 : 3 : 5. The learned advocate for the appellant has placed reliance on Civil Application No.1572 of 2007 which is filed under Rule 27 of Order XLI of the Code of Civil Procedure, 1908. By the said application, a prayer is made for allowing production of a true copy of the order dated 22nd July, 1996 passed by the Superintendent of Land Records, Sangli as well as the order dated 26th May, 1999 passed by Taluka Inspector on Land Records, Walva, Islampur. He pointed out that by order dated 26th May, 1999 name of the appellant was ordered to be entered as an occupant of suit property bearing City Survey No.752. He submitted that the said order has been passed on the basis of order of remand dated 22nd July, 1996 passed by the Superintendent of Land Records. He submitted that by virtue of order dated 26th May, 1999 the very basis and foundation of the suit of the respondent does not survive. He submitted that Dattu, the brother of the appellant and respondent was a necessary and proper party to the suit as without his presence a finding regarding partition could not have been recorded. 6. I have considered the submissions. It must be noted here that the respondent-plaintiff came out with the case of oral partition effected in the year 1978. According to his case, City Survey No.750 was allotted to the share of Dattu and the suit property bearing City : 4 : 4 : 4 : Survey No.752 was allotted to his share. The appellant did not enter witness box to deny the case of oral partition made out by the respondent. Though the appellant admitted that there is a Sale Deed executed in the year 1986 by the widow and son Dattu in favour of his son in respect of land bearing City Survey No.750, his case in the written statement was that the City Survey No.750 has been incorrectly mentioned in the Sale Deed. According to him his son had infact purchased CTS No.752 under the Sale Deed. Even his son has not stepped into witness box. 7. The trial Court and in particular Appellate Court has relied upon the conduct of the appellant of placing reliance on the Sale Deed executed by Dattu’s widow and son in favour of his son in respect of City Survey No.750 and his failure to get the description of the property in the Sale Deed corrected. The specific case of the respondent was that in partition CTS No.750 was allotted to the share of Dattu and pertinently by a Sale Deed executed in 1986 the appellant’s son has purported to purchase CTS No.750 from the widow and son of the said Dattu. That is the reason why the courts below have accepted the case of partition pleaded by the respondent. The courts below have taken into consideration the conduct of the appellant of not entering the witness box. : 5 : 5 : 5 : 8. The suit filed by the respondent was not for partition and therefore, it was not necessary to implead heirs of Dattu as parties to the suit. 9. Therefore, no case is made out for interfering with the concurrent findings of fact recorded by the courts below that the respondents plaintiff has established that CTS No.752 was allotted to him. 10. The authorities under the Maharashtra Land Revenue Code have passed orders which are referred to in Civil Application for additional evidence. The said order have been passed during the pendency of the Appeal before the District Court. The Civil Court has recorded a finding of fact on appreciation of oral and documentary evidence on record. The Civil Court has accepted the the title of the respondent and therefore, the orders of the revenue authorities which were sought to be produced by the appellant have no relevance in so far as the decision of the Civil Court on issue of title is concerned. Hence, no case is made out for allowing production of additional evidence. 11. No substantial question of law arises. Second Appeal is dismissed. No orders as to costs. : 6 : 6 : 6 : 12. Civil Application Nos.1572 of 2007 and 621 of 2006 are rejected. Judge. Judge. Judge.